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Howmedica Osteonics Corp. v. DJO Global, Inc..

United States District Court, S.D. Indiana, Indianapolis Division

May 24, 2018

HOWMEDICA OSTEONICS CORP. A subsidiary of Stryker Corporation, STRYKER CORPORATION A New Jersey corporation, Plaintiffs,
DJO GLOBAL, INC. A California corporation, JAKE EISTERHOLD An individual, ERIC HUEBNER An individual, JUSTIN DAVIS An individual, Defendants.


          Tim A. Baker United States Magistrate Judge

         I. Introduction

         The Court held a telephonic status conference on May 3, 2018, to address discovery disputes. Following this conference, two issues remained unresolved: 1) whether the Individual Defendants must produce unredacted copies of redacted text messages and 2) the temporal scope of Defendants' production.[1] The Magistrate Judge took these issues under advisement and ordered the parties to submit a sampling of unredacted messages. A review of these messages reveals the Court needs to confer further with the parties. The Court sets the matter for a telephonic conference at 10:30 a.m. on June 7, 2018, to address these issues. With respect to the temporal scope, the Court finds Defendants must extend their productions through February 11, 2018.

         II. Background

         HOC filed suit alleging breach of contract, tortious interference, unfair competition, and corporate raiding, as well as claims under the Indiana Uniform Trade Secrets Act and the Defend Trade Secrets Act. The Individual Defendants, Jake Eisterhold, Eric Huebner, and Justin Davis, are former HOC employees who now work for Defendant DJO Global, Inc. HOC alleges DJO wrongly recruited the Individual Defendants from HOC. HOC also alleges the Individual Defendants breached their non-compete agreements by joining DJO, using knowledge they acquired while working for HOC, and targeting customers they serviced as HOC employees. HOC asserts that since the Individual Defendants left and joined DJO, HOC's sales and profits are down significantly. DJO and the Individual Defendants deny HOC's claims.

         III. Discussion

         a. Redactions

         HOC requested text messages between the Individual Defendants and sales clients. The Individual Defendants produced the text messages, but redacted many of them. HOC wants the unredacted versions. The Individual Defendants characterized the redacted texts as belonging to six categories. However, following the telephonic status conference, the Individual Defendants agreed to provide unredacted texts for all but one category, which the Individual Defendants dub “locker room banter.”[2]

         The only case the parties cited is Flagg ex rel. Bond v. City of Detroit, 05-74253, 2009 WL 3388477 (E.D. Mich. Oct. 19, 2009), objections overruled sub nom. Flagg v. City of Detroit, 05-74253, 2009 WL 3837299 (E.D. Mich. Nov. 16, 2009). That case dealt with the production of 626, 638 individual text messages sent by City of Detroit employees on city-owned devices over a two-year period. Id. at *1. The magistrate judge conducted the painful task of an in camera review of all 626, 638 texts. Id.Of the 626, 638 texts, the magistrate judge determined that only 36 were relevant or reasonably calculated to lead to the discovery of admissible evidence. Id. at *2. The judge put the other texts into categories to demonstrate that they were not relevant and not discoverable:

As might be expected, many of these texts were sent between City of Detroit employees and officials regarding legitimate municipal business. A number originate from the City's Law Department, and discuss pending cases unrelated to this case. There are also texts between City of Detroit officials, including then-Mayor Kilpatrick and mayoral appointees, involving purely political discussions having no bearing on this case.
A significant number of the texts center around the romantic adventures and misadventures of City employees and others. None of these has any relevance to the issues in this case.
Many of the texts also involve what might be called “idle chatter, ” involving discussions of sporting events, vacations, lunch plans, humor, workplace complaints, and general chit-chat unrelated to this case.

Id. at *2-3.

         The Individual Defendants argue that the “locker room banter” texts are comparable to idle chatter, but deserve even greater scrutiny prior to production due to their embarrassing nature. The Individual Defendants assert that the texts are irrelevant, would not lead to Defendants. HOC responds that the Individual Defendants do not get to unilaterally decide what ...

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