DRUG AND MEDICAL DEVICE From Sword to Shield Precluding, Limiting, and Benefitting from

By Michael Fawaz Cloned Discovery and Tiffany Carpenter

What a plaintiff wields When a defendant manufacturer of a product successfully as a sword against a defeats the formation of a multidistrict litigation (MDL) or defendant could actually a class action (or where a request for such coordination is prove to be a powerful never made), the manufacturer has good reason to believe it will be named as a defendant in single- expressed an opinion on the perform- shield against further plaintiff lawsuits in various jurisdictions. ance, failure, design, manufacture, dis- Despite the single-plaintiff litigation that tribution, sale, or labeling of the device burdensome discovery. ensues, it is likely that the manufacturer at issue in that litigation; and (5) all will receive a discovery request stating: expert reports. As to any prior or current lawsuit against This type of request is known as cloned or the defendant or related entity involving “piggyback” discovery. a product liability action, produce the Cloned discovery is an overly broad and following: (1) all Rule 26(a)(1) initial inappropriate way to conduct discovery, disclosures; (2) all responses to writ- and it can be tricky to oppose if you do ten discovery requests, including but not have sound arguments upon which to not limited to past Answers to Inter- rely when responding to such requests. Not rogatories, Answers to Requests for surprisingly, these requests are common Admissions, Responses to Requests in drug and medical device cases, where for Production, and any supplements multiple lawsuits may involve the same or thereto; (3) all discovery responses similar products. By serving these types of resulting from any motion to com- requests, plaintiffs seek potentially volu- pel or order to produce; (4) all tran- minous information in an inexpensive scripts taken by any party of any agent, manner without consideration of the rele- employee or representative of a man- vance to the facts and issues of their spe- ufacturing entity, any prescribing or cific case. This article outlines some of the treating doctor, and any expert who most effective strategies to counter this

■ Michael Fawaz handles a variety of matters including product liability, employment litigation, and general commercial and contractual disputes in Howard and Howard Attorneys PLLC’s Royal Oak, Michigan, office. Over the past decade, he has litigated matters in twenty-five different states, and argued cases in fed- eral appellate courts, state courts of appeal, and state supreme courts. Tiffany Carpenter is a trial lawyer and litigator in the Chicago office of Howard and Howard. Her practice focuses on complex product liability, employment, and commercial litigation matters for national clients across the manufacturing, construction, technology, merchandising, marketing, medical, real estate, intellectual property, and retail industries.

42 ■ For The Defense ■ September 2019 © 2019 DRI. All rights reserved. plaintiff tactic, provides nationwide case the burden or expense of the proposed In short, a defendant opposing cloned law from courts precluding or limiting discovery outweighs its likely benefit. discovery should cloak itself in the limita- this type of discovery, and presents the Fed. R. Civ. P. 26(b)(1). tions and protections found in Rule 26. It best ways to respond if a court appears First, a plaintiff will be hard pressed to will help, however, to voice objections that inclined to allow this type of discovery in explain how a blanket demand for all prior go beyond generic labels such as “overly whole or in part. discovery in other actions is relevant: broad” and “unduly burdensome.” Often, “Cloned discovery,” requesting all doc- prior discovery includes confidential infor- Opposing Requests for uments produced or received during mation about another individual, including Cloned Discovery other litigation or investigations, is irrel- the medical care and treatment of that indi- A defendant manufacturer has multi- evant and immaterial unless the fact ple arguments when it comes to oppos- that particular documents were pro- ing cloned discovery requests. First, the duced or received by a party is rele- 2015 amendments to Federal Rule of Civil vant to the subject matter of the instant Cloned discovery is Procedure 26 provide far greater limits on case. The plaintiffs in this Cause have discovery than the old rules and should not shown that the fact that any par- an overly broad and arguably foreclose cloned discovery. Sec- ticular document was produced… [in ond, confidentiality orders should be vig- another case]… is relevant to the sub- inappropriate way to orously enforced, and under principles of ject matter of this Cause. Instead, the comity, courts should respect prior court plaintiffs are interested in the content of conduct discovery, and it orders placing limits on discovery and the documents and for that they must make use of discovery material. Finally, to the proper requests describing the informa- can be tricky to oppose extent possible, cloned discovery requests tion in which they are interested. The should be opposed for lack of substan- plaintiffs’ counsel must do their own if you do not have sound tial similarity. work and request the information they seek directly. arguments upon which Courts Rules Midwest Gas Servs., Inc. v. Indiana Gas Co., For decades, Federal Rule of Civil Proce- 2000 WL 760700, at *1. Cases such as Mid- to rely when responding dure 26 was interpreted to allow broad west Gas place a higher burden on a plain- discovery. Specifically, the rule provided: tiff seeking cloned discovery to establish a to such requests. “Parties may obtain discovery regarding nexus between his or her case and the other any non-­privileged matter that is relevant case or cases from which the plaintiff seeks to any party’s claim or defense…. Rele- prior discovery. vidual. Being able to explain to a court the vant information need not be admissible Second, “undue burden” objections have cost involved in reviewing prior discovery, at the trial if the discovery appears rea- been strengthened under the new version redacting confidential and private infor- sonably calculated to lead to the discov- of Rule 26(b)(1). The Federal Rules of Civil mation about a third party, and the time ery of admissible evidence.” Fed. R. Civ. P. Procedure always provided that a party needed to accomplish such a Herculean 26(b)(1) (repealed 2015). While courts had may seek protection against “undue burden task, will significantly strengthen an undue discretion to place limits on the scope of or expense.” Fed. R. Civ. P. 26(c)(1). Now burden objection and make it more likely discovery, more often than not, sweeping that the rules provide an explicit propor- that a court will preclude cloned discovery. discovery was permitted. However, even tionality requirement, however, an undue under the old standard, courts routinely burden objection should have even greater Protective or Confidentiality Orders limited cloned discovery. See, e.g., Midwest force. See Town of Westport v. Monsanto In almost every product liability action, Gas Servs., Inc. v. Indiana Gas Co., 2000 Co., 2015 WL 13685105, at *3 (D. Mass. and particularly ones involving drugs or WL 760700 (S.D. Ind. Mar. 7, 2000); Chen Nov. 5, 2015) (“[Plaintiff’s] requests for all medical devices, the defendant manufac- v. Ampco Sys. Parking, 2009 WL 2496729, discovery and deposition testimony from turer will insist on a confidentiality order at *2 (S.D. Cal. Aug. 14, 2009). all [prior] litigation [involving the same to protect its trade secret and other sensi- In 2015, Rule 26 changed in a significant chemical compounds] is overly broad.”); tive business information. To help protect way. Now discovery must be relevant to a Yu Cheng Chen v. Cincinnati Inc., 2007 against cloned discovery requests, a typical party’s claim or defense, and it also must be WL 1191342, at *1 (E.D.N.Y. Apr. 20, 2007) protective order should contain language proportional to the needs of the case, (finding the “burden” of 150 hours of work substantially similar to the following: considering the importance of the issues outweighs the marginal assistance pro- Confidential Information shall not be at stake in the action, the amount in vided by “transcripts of depositions taken used or shown, disseminated, copied or controversy, the parties’ relative access in some 70 lawsuits in which plaintiffs were in any way communicated to any person to relevant information, the parties’ injured under circumstances alleged to be for any purpose whatsoever, other than resources, the importance of the discov- similar to those that caused the [plaintiff’s] as required for the preparation and trial ery in resolving the issues, and whether injuries in this action.”). of this action, including any appeals,

For The Defense ■ September 2019 ■ 43 DRUG AND MEDICAL DEVICE

and only in compliance with this Order. State Farm Mutual Automobile Insurance is essentially trying to obtain deposi- Use of such information in any other Company, 331 F.3d 1122 (9th Cir. 2003), tion transcripts and information stem- litigation or for any other purpose is interveners sought to modify the existing ming from the [defendant’s] employees, expressly prohibited. protective order to obtain documents in a not from the [defendant] but from the Additionally, protective orders often collateral litigation. The court held: plaintiff in [a prior] lawsuit. demand that at the conclusion of a mat- [A] court should not grant a collat- Barrella v. Vill. of Freeport, 2012 WL ter, all confidential documents will be eral litigant’s request for such modi- 6103222, at *3 (E.D.N.Y. Dec. 8, 2012) destroyed or returned to the producing fication automatically. As an initial (denying objections to an order quashing party. In some jurisdictions, courts do matter, the collateral litigant must dem- a subpoena). onstrate the relevance of the protected Having a previously entered protective discovery to the collateral proceedings order limiting the use of discovery, how- and its general discoverability therein. ever, is not a foolproof way to preclude The United States Requiring a showing of relevance pre- cloned discovery. Some courts are willing to vents collateral litigants from gaining compel the production of information from Supreme Court has access to discovery materials merely prior cases, despite a previously entered to subvert limitations on discovery in order. Nonetheless, the entry of a protec- recognized that there is another proceeding. tive order and a request that another court Id. at 1332. See also In re Remington Arms enforce and honor such orders can provide no right to use pretrial Co., 952 F.2d 1029, 1033 (8th Cir. 1991) (not- some limitations on cloned discovery. ing, where proprietary and trade secret discovery from one case business information is involved, the “use Lack of Substantial Similarity of the discovered information should be Some courts will permit cloned discovery for another purpose. limited to the particular lawsuit in which in the limited circumstance where the pres- it has been shown to be both relevant and ent lawsuit and the prior lawsuit involve necessary to the prosecution of the case”). substantially similar claims, products, and not particularly like blanket protective Once a protective order is entered in one alleged failures. Courts caution, however, orders, but the parties are free to enter into case limiting the use of discovery materi- that mere “surface similarities” between confidentiality agreements among them- als to that case, the next step is convinc- cases are insufficient to warrant cloned selves. When at all possible, litigating par- ing a subsequent court to honor that prior discovery. See Oklahoma v. Tyson Foods, ties not only should stipulate or agree to order. In this regard, the best argument is Inc., 2006 WL 2862216, at *1–2 (N.D. Okla. such orders, but they should also be entered one based on judicial comity, which has 2006) (denying motion to compel pro- by the court. been explained this way: “In general, [the] duction of documents made available “in Having a protective order entered by the principle of ‘comity’ is that courts of one a similar poultry waste pollution lawsuit court in one case can be useful in oppos- state or jurisdiction will give effect to [the] previously brought in this Court” absent a ing cloned discovery requests. The United laws and judicial decisions of another state showing of more than “surface similarities” States Supreme Court has recognized that or jurisdiction, not as a matter of obligation between the cases). there is no right to use pretrial discovery but out of deference and mutual respect.” In In a drug or medical device case, plain- from one case for another purpose. See re Joint E. & S. Districts Asbestos Litig., 800 tiffs often argue that the product is the Seattle Times Co. v. Rhinehart, 467 U.S. F. Supp. 643, 646 (C.D. Ill. 1992) (citation same, justifying cloned discovery. In this 20, 32–34 (1984). Courts must balance dis- omitted) (alterations in original). See also regard, it is incumbent on the defendant to closure with reasonable protection. And Inventio AG v. Thyssenkrupp Elevator Ams. identify any differences. Did a prior case “[d]uring the discovery phase, courts pos- Corp., 662 F. Supp.2d 375, 384 (D. Del. 2009) involve a plaintiff with a particular under- sess greater latitude to take reasonable (“[T]his Court is without authority to alter lying condition distinct from the present steps to ensure that the private interest in the Protective Order entered by another case? Did the drug differ in any way in the maintaining the confidentiality of trade court by ordering production of any doc- different cases? Were there different warn- secrets or other sensitive information is not uments within the scope of the Protective ings? With implantable medical devices, unnecessarily impaired litigation-­related Order.”). Courts’ confidentiality concerns the cases often involve different treating disclosure.” Beam Sys. v. Checkpoint Sys., are heightened when plaintiffs creatively surgeons, with different skills, and patients 1997 WL 364081, at *1 (C.D. Cal. Feb. 6, seek cloned discovery from a receiving who vary in weight, activity level, and life- 1997). Further, “one of the principal tools party in a prior litigation, rather than from style. Further, implantable medical devices enabling courts to strike an appropriate the direct source of the information. often come in different sizes and models. balance is a protective order.” Id. The Ninth Here, [the plaintiff] is attempting to gain Moreover, experts routinely describe the Circuit, for example, has recognized that disclosure from the “receiving party”, human body as a “hostile environment.” such document sharing permits a party to [sic] in that he is attempting to gain Each person is unique, and when it comes circumvent discovery rules and procedures information and materials not from the to implantable devices, the differences out- in the party’s own jurisdiction. In Foltz v. source of the information. The Plaintiff weigh the similarities. The more differ-

44 ■ For The Defense ■ September 2019 ences a defendant can show between two On the other hand, a plaintiff’s counsel may als whose transcripts he had, such dep- actions, the less likely a court is to permit not have such familiarity and will be forced ositions would be limited to topics not cloned discovery. to review thousands or millions of pages. already covered by those transcripts; Often, plaintiffs will seek cloned discov- • she informed him that if he had multi- Potential Upside to Limited ery through depositions. It is not unusual ple transcripts for a witness, she found Cloned Discovery for plaintiffs to serve a corporation with a it hard to believe that there would be any Despite the many reasons to oppose cloned demand for all prior deposition testimony other topics to cover, and thus any need discovery, there may be some benefits to taken in any other action and also serve a for further depositions; permitting limited cloned discovery, par- broad corporate deposition notice in the • she ordered him to identify in advance ticularly if you are dealing with a reason- action. In this situation, having detailed any topics that he wanted to cover with able opposing counsel. Moreover, a court objections coupled with a robust meet and any witness; and may be inclined to permit it, despite your confer are particularly wise. Doing so will • she cautioned him that she would not best arguments in opposition, and thus, help prevent the manufacturer from being permit a deposition of any witness for finding a compromise could prove the best bullied by such requests, and when the seven hours if he already had transcripts course of action. inevitable motion to compel or the motion for that witness, and she would not hes- Despite issuing their own interrogato- for protective order follows, the manufac- itate to issue sanctions if he pursued ries, requests for production, and deposi- turer will earn credibility with the court, any such deposition in derogation of tion notices, plaintiffs routinely make cloned demonstrate the plaintiffs’ unreasonable- her order. discovery requests demanding answers to ness, and limit the scope of any further This ruling proved quite helpful because interrogatories, document productions, and depositions, protecting the manufacturer. corporate witnesses did not have to appear deposition transcripts from prior cases. It is Here’s an anecdote illustrating the again, it saved the client time and money, in these circumstances that courts are most approach: several years ago, we had a and the process leading to it informed likely to be persuaded by the defendant’s re- case involving a plaintiff’s counsel who the court that the plaintiff’s attorney was quests to rein in a plaintiff. demanded all prior deposition transcripts. engaging in improper discovery tactics. The federal rules place limits on the In an effort to reach consensus, we offered At that point, the magistrate judge had number of interrogatories (twenty-five), the to agree, but only on the condition that he the impression that the plaintiff was being number of depositions (ten), and the dura- could not re-depose individuals for whom unreasonable, which would only inure tion of depositions (seven hours). Courts deposition transcripts were produced. For to the benefit of the defendant the next have found it persuasive when a defendant some witnesses, there were multiple prior time there was a dispute about discovery argues that a plaintiff is tacitly trying to transcripts. The plaintiff’s counsel insisted or otherwise. circumvent those limits by seeking cloned on receiving all prior deposition transcripts discovery and also wanting to proceed with and on taking whatever additional deposi- Conclusion ordinary discovery in the present matter. tions he desired. A motion to compel was Cloned discovery is an inappropriate way In this regard, a plaintiff could be limited filed, and a hearing was held. to conduct discovery, particularly under in the discovery that he or she may pur- During the hearing, the magistrate the auspices of the new rules limiting dis- sue in the present action if materials from judge immediately made clear that she covery to what is proportional to a partic- a prior action are produced. There are two was inclined to order the defendant to pro- ular case. The key to opposing it, however, areas where this could prove most benefi- duce the prior transcripts. We explained is for a defendant manufacturer to pro- cial to a corporate defendant: discovery of our position and our willingness to com- ceed thoughtfully at every step, leading to electronically stored information (ESI) and promise, and that our side, under the com- the potential motion to compel or motion corporate depositions. promise, would produce more than thirty for protective order. Objections should be As for ESI, every defendant knows that deposition transcripts because for some tailored and specific, not limited to catch the process to identify and produce it can witnesses, there would be multiple tran- phrases such as “unduly burdensome.” The be exceedingly burdensome and expen- scripts. When the plaintiff’s counsel argued meet and confer process should be robust, sive. The process often requires hundreds that this did not satiate his appetite and and offers to compromise, where possible, of hours, months of time, and potentially that he also wanted to take his own deposi- should be made. The more reasonable the millions of dollars. If the defendant has tions, the magistrate judge lost all patience. defendant appears, the more unreasonable gone through that burdensome process in She told the plaintiff’s counsel that his posi- an “I want it all” plaintiff appears. While one case, it may be to its benefit to agree tion demanding thirty-plus transcripts and cloned discovery is a poor way to conduct to produce some or all of that material in also expecting to depose the same people discovery, there are potential benefits to exchange for the plaintiff agreeing that he again was “ridiculous.” After further back a defendant that should be explored. In or she is not entitled to further ESI discov- and forth, this is what happened: the end, what a plaintiff wields as a sword ery. Besides the obvious cost saving, the • The magistrate judge ordered the pro- against a defendant could actually prove to defendant’s counsel is familiar with the duction of the transcripts; be a powerful shield against further bur- materials, has reviewed them in detail, and • she informed the plaintiff’s counsel densome discovery. is aware of the good, the bad, and the ugly. that if he wanted to depose individu-

For The Defense ■ September 2019 ■ 45