United States District Court, S.D. Indiana, Indianapolis Division
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.
Baker United States Magistrate Judge
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. 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.
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.
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
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
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.
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 ...