1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 BARBARA HEINRICH and GREGORY Case No.: 2:20-cv-00166-CDS-MDC HEINRICH, 4 ORDER GRANTING DEFENDANT’S Plaintiffs, MOTION FOR SANCTIONS [ECF No. 284] 5 vs. 6
7 ETHICON, INC.; ETHICON LLC; and JOHNSON & JOHNSON, 8
9 Defendants. 10 Pending before the Court is defendants’ Motion for Sanctions (“Motion”) (ECF No. 284-filed 11 under seal) (ECF No. 285-publicly filed). The Court has also considered the parties’ supplemental 12 briefs (ECF Nos. 313 and 314). For the reasons below, the Court GRANTS the Motion. Pursuant to 13 Fed. R. Civ. P. 37(b), the plaintiffs are sanctioned as follows: (1) plaintiffs shall pay defendants their 14 reasonable attorneys’ fees and costs as ordered below; (2) plaintiffs are precluded from using in this 15 action the testimony of Dr. Geoffrey Hsieh obtained in the September 2024 state action deposition as 16 ordered below; and (3) plaintiffs are prohibited from using in any other action, including their state 17 action against Dr. Hsieh, certain documents ordered below. 18 DISCUSSION 19 I. FACTS 20 A. Introduction 21 This action was originally filed in 2013 and is part of host of cases filed over a decade ago 22 concerning the use of transvaginal surgical mesh product, TVT-SECUR (“TVT-S”), to treat stress 23 urinary incontinence. The TVT-S mesh product was designed and manufactured by defendants Johnson 24 & Johnson (“J&J”) and Ethicon, Inc. (“Ethicon”). Plaintiff Barbara Heinrich alleges that she suffered 25 1 1 injuries after having the TVT-S mesh product implanted at the direction of her doctor, Geoffrey Hsieh 2 (“Dr. Hsieh”). ECF No. 90; see ECF No. 284. The TVT-S was designed and manufactured by 3 defendants Johnson & Johnson and Ethicon, Inc. ECF No. 90. Ms. Heinrich’s husband, co-plaintiff, 4 Gregory Heinrich, asserts a claim for loss of consortium. Id. 5 After its inception, this action became part of the multidistrict litigation assigned to the United 6 States District Court for the Southern District of West Virginia1 (“MDL”) where the related matters 7 were consolidated for discovery and other pretrial proceedings. As part of the MDL, this action became 8 subject to numerous pre-trial and discovery orders entered in the MDL, some of which are at issue by 9 defendants Motion. This action was remanded to this Court after the consolidated discovery 10 proceedings largely concluded. After remand, the parties sought additional discovery including 11 plaintiffs’ June 2020 request to take a supplemental deposition of Dr. Hsieh (ECF No. 91). On June 22, 12 2020, the Court entered an order denying plaintiffs’ request to take a supplemental deposition of Dr. 13 Hsieh, among other things. ECF No. 92. 14 On April 16, 2021, plaintiffs filed a collateral lawsuit in Nevada state court against Dr. Hsieh and 15 his medical practice asserting breach of fiduciary duty and fraud based on his prescription and 16 implantation of TVT-S mesh product on Ms. Heinrich. ECF No. 285-2. Nothing much occurred in that 17 state action against Dr. Hsieh for some time. In the interim, this action was ultimately bifurcated and the 18 issue whether plaintiffs’ claims were barred by the applicable statute of limitations was tried in 2023 19 (“SOL 2023 Trial”). On February 21, 2023, a jury returned a verdict in plaintiffs’ favor and finding that 20 plaintiffs’ claims were not barred. ECF No. 243. Several post-trial proceedings and an unsuccessful 21 mediation ensued. Plaintiffs’ state court case against Dr. Hsieh also activated and plaintiffs took Dr. 22 Hsieh’s deposition in that action on September 23, 2024 – which precipitated defendants’ Motion. 23 24
25 1 In Re Ethicon Pelvic Repair System Products Liability Litigation, MDL No. 2327. 2 1 In their Motion, defendants assert that plaintiffs violated a July 30, 2012, MDL Pretrial Order 2 #11 (“PTO #11”) by improperly disclosing a certain 233 documents in connection with their deposition 3 of Dr. Hsieh which were protected by PTO #11 as “confidential” and “highly confidential.” ECF No. 4 285. Defendants identified these documents in a spreadsheet attached as Exhibit 11 to their Motion 5 (“Motion-Exhibit 11”). ECF No. 285-11. Plaintiffs deny violating PTO #11 and claim that defendants 6 waived confidentiality for many of the documents in Exhibit 11 and that other documents had otherwise 7 lost confidential protection under the PTO #11 because they had been publicly disclosed, either in other 8 trials, depositions or elsewhere. ECF No. 287. 9 B. Relevant Proceedings 10 The Court heard defendants’ Motion on August 11, 2025, and directed the plaintiffs to identify 11 all documents from Motion-Exhibit 11 they claim are not subject to PTO #11. See 08/11/25 Minute 12 Order (ECF No. 307). The Court specifically ordered plaintiffs to file a limited supplemental brief that 13 shows which documents from Motion-Exhibit 11 were previously disclosed, may have become de- 14 designated not confidential, or otherwise become part of the public forum prior to plaintiffs’ September 15 23, 2024, deposition of Dr Hsieh in the state action. See id. The Court specifically directed plaintiffs 16 that such supplement should only identify the requested documents. ECF No. 310 at 43-44. The Court 17 further advised plaintiffs not include additional argument or file any documents with their supplement. 18 Id. 19 While plaintiffs’ September 11, 2025, supplement (ECF No. 313) identifies some documents 20 from Motion-Exhibit 11 they claim are not subject to PTO #11, plaintiffs did not follow the Court’s 21 directives. First, plaintiffs improperly included additional argument. Second, plaintiffs attached five 22 thousand, eight hundred and ninety pages (5,890) pages of exhibits to their supplement, which they ask 23 the Court to sift through to try to determine whether documents from Motion-Exhibit 11 may have been 24 publicly disclosed. 25 3 1 II. PLAINTIFFS’ NONCOMPLIANT AND BURDENSOME SUPPLEMENT 2 Plaintiffs’ submission of over five thousand pages of documents in connection with their 3 supplement (ECF Nos. 313-2 through 313-37) violated the Court’s directives (ECF Nos. 307, 310) and 4 is excessive and unreasonable. Such voluminous documents consist primarily of filings and exhibits 5 from other cases, which the plaintiffs attempt to shift their obligation and instead ask the Court to review 6 and determine whether any of the documents in Motion-Exhibit 11 may been de-designated confidential 7 or publicly disclosed. See ECF No. 313. Such task is unreasonable and the Court declines to engage in 8 such labor. “[J]udges are not archaeologists. They need not excavate masses of papers in search of 9 revealing tidbits.” U.S. Commodity Futures Trading Comm'n v. Banc de Binary, Ltd., No. 2:13-CV- 10 992-MMD-VCF, 2015 WL 556441, at *4 (D. Nev. Feb. 11, 2015) (quoting Nw. Nat. Ins. Co. v. Baltes, 11 15 F.3d 660, 662-63 (7th Cir.1994)). “With all due respect, judges are not like pigs, hunting for truffles 12 buried in briefs and it is not the responsibility of the judiciary to sift through scattered papers…..” 13 Agarwal v. Or. Mut. Ins. Co., No. 2:11-cv-01384-LDG-CWH, 2013 WL 211093, at *3 (D. Nev. January 14 18, 2013) (quoting Greenly v. Sara Lee Corp., No. CIV. S–06–1775 WBS EFB, 2008 WL 1925230 15 (E.D. Cal. April 30, 2008)). “Given our adversary system of litigation, it is not the role of this court to 16 research and construct the legal arguments open to parties, especially when they are represented by 17 counsel.” Doherty v. City of Chicago, 75 F.3d 318, 324 (7th Cir. 1996) (citations omitted) (internal 18 quotation mark(s) omitted). 19 Courts “have the inherent authority to manage their dockets and courtrooms with a view toward 20 the efficient and expedient resolution of cases.” Dietz v. Bouldin, 579 U.S. 40, 47 (2016). Such inherent 21 authority includes the power to strike documents from the docket. See Spurlock v. F.B.I., 69 F.3d 1010, 22 1016 (9th Cir. 1995) (the district court has inherent authority to strike improper filings); Washington v. 23 Ivany, No. 2:22-CV-01450-CDS-VCF, 2023 U.S. Dist. LEXIS 101564, at *2 (D. Nev. June 7, 2023) 24 (same). Accordingly, the Court strikes documents at ECF No. 313-2 through 313-37 because they are 25 4 1 non-responsive, excessive, and unreasonable. The Court declines to strike the supplement at ECF No. 2 313 and the attached spreadsheet at ECF No. 313-1, which appears to be the only document that is 3 responsive to the Court’s directive and attempts to show what documents at issue by Motion-Exhibit 11 4 have been previously disclosed. 5 III. PLAINTIFFS’ EXTENT OF CULPABILITY UNDER RULE 37 6 Defendants seek sanctions under Fed. R. Civ. P. 37(b)(2) for plaintiff’s disclosure of confidential 7 documents in violation of PTO #11. The party seeking sanctions per Rule 37(b) bears the initial burden 8 of demonstrating non-compliance with a pre-trial order by a preponderance of the evidence. See Syntel 9 Sterling Best Shores Mauritius Ltd. v. TriZetto Grp., 328 F.R.D. 100, 119 (S.D.N.Y. 2018) (“The party 10 seeking sanctions bears the initial burden of demonstrating non-compliance with a Court Order.”); Chu 11 v. UNUM Life Ins. Co. of Am., No. 8:24-CV-00445-JVS (JDEx), 2025 WL 1090324, at *4 (C.D. Cal. 12 Feb. 28, 2025) (reconsideration denied, No. 8:24-CV-00445-JVS (JDEx), 2025 WL 2014203 (C.D. Cal. 13 Apr. 21, 2025) (party seeking sanctions under Rule 37(b) has initial burden to show violation of court 14 order)); OmniGen Rsch., LLC v. Wang, No. 6:16-CV-268-MC, 2018 WL 11512767, at *3 (D. Or. Nov. 15 6, 2018) (“The burden of proof under Rule 16(f) and Rule 37(b)(2), both of which encompass protective 16 orders, is a preponderance of evidence….”); Hunt v. Assa Abloy Entrance Sys. US, Inc., No. 2:24-cv- 17 01980-GMN-EJY, 2025 WL 2484182, at *2 (D. Nev. Aug. 28, 2025) (the parties seeking spoliation 18 sanctions under Rule 37 has burden of proving “‘by a preponderance of the evidence that the accused 19 party actually destroyed, altered, or failed to preserve relevant evidence.’”). “The party facing sanctions 20 under Rule 37 bears the burden of showing substantial justification or harmlessness.” Glaster v. Dollar 21 Tree Stores, Inc., No. 2:15-CV-252-MMD-VCF, 2015 WL 4928133, at *2 (D. Nev. Aug. 18, 2015). 22 // 23 // 24 // 25 5 1 A. Relevant Portions of PTO #11 2 PTO #11 is applicable to this action. In relevant part, Paragraphs I and II of PTO #11 provide:
3 “Upon entry of this PTO # 11, the Protective Order will apply to all actions that are or become a part of MDL 2327…. This Order shall govern 4 all cases directly filed in this district that are included in MDL 2327, as well as all cases transferred to this Court by the Judicial Panel on 5 Multidistrict Litigation ("JPML") and any tag-along cases transferred to 6 this Court by the JPML.”
7 ECF No. 285-1 ¶¶ I and II.A. 8 PTO #11 limits confidential or highly confidential material only for use in MDL actions. 9 Paragraph II.B.6 of the order provides:
10 Use of Confidential Material Limited to this Action: Any document or other material which is marked CONFIDENTIAL or HIGHLY 11 CONFIDENTIAL-P, or the contents thereof, may be used by a party, or a party's attorney, expert witness, consultant, or other person to whom 12 disclosure is made, only for the purpose of this action. Nothing contained in this Order shall prevent the use of any document or the contents thereof, 13 at any deposition taken in this action. If a party intends to use material that 14 has been marked as HIGHLY CONFIDENTIAL-P at the deposition of an employee or former employee of a non-producing party in this 15 litigation, then the party shall notify the producing party ten (10) days in Case 2:20-cv-00166-CDS-MDC Document 285-1 Filed 03/17/25 Page 5 16 of 165 advance of the deposition that it intends to use that category of material. If the parties cannot agree on parameters for usage of the 17 material at the deposition, then the parties will seek the direction of the Court as to the utilization of that category of material in the deposition. 18 Id. ¶ II.B.6 19 Paragraph II.B.10 again directs the parties to provide advance notice when using confidential or 20 highly confidential materials in depositions: 21
Use of Confidential Material at Depositions: All transcripts and exhibits 22 shall be treated as if designated CONFIDENTIAL for a period of thirty 23 (30) days after the transcript is available from the court reporter. Counsel for any party may designate during the deposition or during the thirty day 24 period after the transcript is available from the court reporter any portion of the transcript as CONFIDENTIAL or HIGHLY CONFIDENTIAL- 25 6 P by denominating by page and line, and by designating any exhibits, that 1 are to be considered CONFIDENTIAL or HIGHLY CONFIDENTIAL-P pursuant to the criteria set forth in this Order. Such 2 designation shall be communicated to all parties. Transcript portions and exhibits designated in accordance with this paragraph shall be disclosed 3 only in accordance with this Order. A party may challenge the 4 CONFIDENTIAL or HIGHLY CONFIDENTIAL-P designation or portions thereof in accordance with the provisions of Paragraph II.B.4 5 above.
6 Id. ¶ II.B.10. 7 Regarding trial, PTO #11 burdens the designating party to move to seal and show that 8 confidential materials should be withheld from the public record after receiving notice that adverse party 9 intends to use such materials at trial. Paragraph II.C.1 states: 10 If any party or attorney wishes to file, or use as an exhibit or as testimonial 11 evidence at a hearing or trial, any CONFIDENTIAL or HIGHLY CONFIDENTIAL-P material, such party must provide reasonable notice 12 to the producing party of the intended use of such information, The parties shall then attempt to resolve the matter of continued confidentiality by 13 either (a) removing the CONFIDENTIAL or HIGHLY CONFIDENTIAL-P marking, (b) creating a mutually acceptable 14 redacted version that suffices for purposes of the case, or (c) conferring about methods to avoid or limit public disclosure of such information 15 during testimony. If an amicable resolution proves unsuccessful, the parties may present the issue to the Court for resolution. The proponent of 16 continued confidentiality will have the burden of persuasion that the 17 document or material should be withheld from the public record in accordance with (a) Local Rule of Civil Procedure 26.4, (b) the 18 Administrative Procedures for Electronic Filing in the Southern District of West Virginia § 12, and (c) controlling precedent. See, e.g., Press- 19 Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9 (1986); Virginia Dept. of State Police v. Washington Post, 386 F.3d 567, 575 (4th Cir. 2004) 20 Id. ¶ II.C.1. The requirement for a motion is manifested by the directives to follow Local Rule of Civil 21 Procedure 26.4 and Section 12 Administrative Procedures for Electronic Filing for the U.S. District 22 Court for the Southern District of West Virginia. West Virginia Local Rule 26.4(c) requires a party to 23 file a motion to seal to prevent public disclosure. Id. Similarly, Section 12.6.1 of the West Virginia’s 24 Administrative Procedures for Electronic Filing also require a motion to seal a document. Id. 25 7 1 This is consistent with Ninth Circuit law. The Ninth Circuit has emphasized a strong 2 presumption in favor of access to court records and documents. Foltz v. State Farm Mut. Auto Ins. Co., 3 331 F.3d 1122, 1135 (9th Cir. 2003). This general right to public documents, however, is not absolute. 4 A court may withhold materials from the public record if the proponent of confidentiality presents 5 "compelling reasons" to seal such material. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 6 1178-80 (9th Cir. 2006).
7 B. Plaintiffs Did Not Violate PTO #11 With Respect To Documents Previously Disclosed As Intended Exhibits In the Statute Of Limitations Trial Here 8 In their supplement (ECF No. 313) and supplemental spreadsheet (ECF No. 313-1), plaintiffs 9 identify that 203 of the 233 documents in Motion-Exhibit 11 were previously disclosed as intended trial 10 exhibits in this action on September 16, 2021 (ECF No. 169-1) (“ECF No. 169 Documents”), prior to 11 Dr. Hsieh’s state court action deposition in September 2024. See ECF No. 313, 313-1. Plaintiffs 12 specifically identify these ECF No. 169 Documents in the third column of their supplemental 13 spreadsheet (ECF No. 313-1) and are numbered 1-4, 9-11, 16-22, 25-45, 48-69, 73-82, 84-87, 90-94, 96- 14 101, 103-110, 112-119, 121-141, 143-152, 154-189, 191-196, 198-210, 212-225, 228-232 in the first 15 column. Defendants do not dispute that plaintiffs identified the ECF No. 169 Documents as intended 16 exhibits at the statute of limitations trial in this action. Instead, defendants argue that plaintiffs’ 17 inclusion of such documents in their intended trial exhibit list does not strip the documents of protection 18 under PTO #11 because some of them were not ultimately admitted into evidence. See e.g., ECF No. 19 314 at 6-7. 20 The Court disagrees with defendants. Once plaintiffs notified defendants (ECF No. 169-1) that 21 they intended to use confidential documents for the statute of limitations trial, PTO #11 placed the 22 burden on defendants to take action to maintain confidentiality. As noted above, PTO #11 requires the 23 proponent of confidentiality to file a motion to seal and such proponent “will have the burden of 24 persuasion that the document or material should be withheld from the public record” after an adverse 25 8 1 party “provide[s] reasonable notice to the producing party of the intended use of” confidential 2 information “as an exhibit or as testimonial evidence at a hearing or trial.” ECF No. 285-1 ¶ II.C.1. 3 PTO #11 expressly triggered defendants’ burden upon plaintiffs’ notice (ECF No. 169-1) that they 4 intended to use confidential documents at the statute of limitations trial. PTO #11 does not require the 5 confidentially-marked exhibits to be actually introduced, or moved for introduction, at a trial to activate 6 defendants’ obligation and burden. Thus, for various, alternative grounds, plaintiffs did not violate PTO 7 #11 by using any of ECF No. 169 Documents in connection with their state court deposition of Dr. 8 Hsieh. 9 Defendants did not move for continued confidentiality protection of the ECF No. 169 Documents 10 after plaintiffs disclosed those documents as intended statute of limitations trial exhibits, as required by 11 PTO #11. See Glaster, 2015 WL 4928133, at *2. Thus, defendants waived confidentiality as to the 12 ECF No. 169 Documents by failing to move for continued protection once they were on notice that 13 plaintiffs intended to use them at the statute of limitation trial, as required by PTO #11. See e.g., U.S. v. 14 De La Jara, 973 F.2d 746, 750 (9th Cir. 1992) (finding waiver when party failed to protect and preserve 15 confidentiality of privileged information); U.S. v. SDI Future Health, Inc., 464 F.Supp.2d 1027, 1046 16 (D. Nev. 2006) (failure to seek protection waived privilege protection of information). Next, having 17 themselves failed to comply with PTO #11, defendants cannot in fairness or equity accuse plaintiffs of 18 failing to do the same as grounds for sanctions. See e.g., Precision Instrument Mfg. Co. v. Automotive 19 Maintenance Mach. Co., 324 U.S. 806, 814 (1945) (stating that “he who comes into equity must come 20 with clean hands” (internal quotation marks omitted)). 21 Plaintiffs also did not violate PTO #11 by disclosing document marked No. 83 in their 22 supplement spreadsheet at ECF No. 313-1 because defendants withdrew confidentiality for that 23 document (see ECF No. 314-1). 24 // 25 9 C. Plaintiffs Violated PTO #11 Because They Disclosed Other Documents 1 Which They Failed To Establish Were Previously Disclosed Or Otherwise Stripped of Confidential Protection 2 Plaintiffs failed to sufficiently show in their supplement brief and spreadsheet (ECF Nos. 313, 3 313-1) that the remaining documents at issue by Motion-Exhibit 11 were publicly disclosed or otherwise 4 stripped of protection by PTO #11 prior to their deposition of Dr. Hsieh is their state court action. 5 In their supplement brief (ECF No. 313) and supplemental spreadsheet (ECF No. 313-1), 6 plaintiffs vaguely note that documents numbered 12, 13, 14, 15, 46, 47, 111, 120 and 211 were “public 7 study”; “public patient consent form”; “public letter to patients”; or “public document… to all doctors.” 8 ECF No. 313 at 15; ECF No. 313-1. Plaintiffs’ vague notations do not meet their burden. They lack 9 sufficient factual substance for the Court to determine whether such documents were actually disclosed 10 or stripped of confidentiality. 11 Neither plaintiffs’ supplement brief (ECF No. 313) nor supplemental spreadsheet (ECF No. 313- 12 1) unequivocally address or identify the following twenty-six Motion-Exhibit 11 documents, which 13 plaintiffs numbered 5, 6, 7, 8, 12, 13, 14, 15, 23, 24, 46, 70, 71, 72, 88, 89, 95, 102, 142, 190, 197, 211, 14 226, 227, and 233 in their supplement spreadsheet at ECF No. 313-1, as being previously publicly 15 disclosed. Plaintiffs appear to suggest some of these documents were deposition exhibits in other cases 16 (e.g., Nos. 8, 70, 71, 227, 233), but plaintiffs again fail to directly and unambiguous show those specific 17 exhibits were publicly disclosed or stripped of confidentiality. 18 Plaintiffs argue that defendants waived confidentiality to deposition exhibits because they did not 19 move to seal those exhibits pursuant to Paragraph II.B.10 of PTO #11. That paragraph, however, does 20 not require defendant to move to seal confidential documents used in deposition. In relevant part, 21 Paragraph II.B.10 of PTO #11 states, “Transcript portions and exhibits designated [confidential or 22 highly confidential] in accordance with this paragraph shall be disclosed only in accordance with this 23 Order.” ECF No. 285-1 ¶ II.B.10. 24 25 10 1 Plaintiffs also argue that defendants waived confidentiality over all the documents at issue 2 because they failed to file consolidated motions to seal ordered by MDL Pre-Trial Order #280 (filed here 3 at ECF No. 13) (“PTO #280”). That order, however, did not compel defendants to file a wholesale 4 motion to seal for all documents disclosed in the MDL. Instead, PTO #280 directed defendants to file 5 consolidated motions to seal any exhibits in support of Daubert motions or dispositive motions before 6 filing such motions. ECF No. 13 ¶ B.4. More importantly, plaintiffs did not show whether any of the 7 remaining Motion-Exhibit 11 documents at issue were exhibits in support of Daubert, dispositive, or 8 other motions for which an antecedent motion to seal was required. 9 Finally, plaintiffs broadly claim that many documents were previously disclosed in the MDL and 10 various state and foreign cases. Plaintiffs, however, simply dump exhibits and exhibit lists from such 11 cases, hearing transcripts, and state court orders and speculate that Motion-Exhibit 11 documents may 12 have been disclosed or de-designated in such hodge podge. Again, “[J]udges are not archaeologists. 13 They need not excavate masses of papers in search of revealing tidbits.” U.S. Commodity Futures 14 Trading Comm'n, 2015 WL 556441, at *4. 15 In conclusion, plaintiffs violated PTO #11 by disclosing the twenty-five documents identified 16 above in the deposition of Dr. Hsieh in their separate state action against him. Paragraph II.B.6 of PTO 17 #11 clearly emphasizes that the “use of Confidential Material Limited to this Action” and that any 18 confidential or highlight confidential document “may be used by a party, or a party's attorney, expert 19 witness, consultant, or other person to whom disclosure is made, only for the purpose of this action.” 20 ECF No. 285-1 ¶ II.B.6. 21 i. Plaintiffs’ Violation of PTO #11 Was Not Substantially Justified 22 As the parties facing sanctions under Rule 37, plaintiffs bear the burden of showing substantial 23 justification. See Glaster, 2015 WL 4928133, at *2. Plaintiffs did not meet such burden. The Court 24 recognizes that this litigation, like the many others regarding defendants’ TVT-S mesh product, involves 25 11 1 a considerable number of documents and information. Managing such voluminous information is 2 challenging and may be overwhelming, particularly when some of that volume is designated confidential 3 or otherwise restricted. While the universe of documents is expansive, plaintiffs could have handily 4 avoided defendants’ Motion and their violation of PTO #11 by giving defendants advance notice of Dr. 5 Hsieh’s state action deposition and their intention to use of certain confidentially marked documents as 6 deposition exhibits.
7 ii. The Circumstances of This Case, Prudence, and a Reasonably Broad Reading of PTO #11 Further Compelled Such Notice 8 In September 2024, when plaintiffs deposed Dr. Hsieh using defendants’ confidential materials, 9 they were unquestionably aware that Dr. Hsieh was a central figure to plaintiffs’ claims in this case and 10 of defendants’ concerns and objections to plaintiffs’ further deposing Dr. Hsieh. As noted above, 11 plaintiff Barbara Heinrich was implanted with defendants’ TVT-S mesh product at the direction of Dr. 12 Hsieh. ECF No. 90; see also ECF No. 284. Plaintiffs initially deposed Dr. Hsieh in May 2018 in 13 connection with the MDL litigation. ECF No. 91. In June 2020, after their case was remanded from the 14 MDL to this Court and discovery generally closed, plaintiffs sought leave to further depose Dr. Hsieh. 15 Defendants opposed plaintiffs’ attempt to further depose Dr. Hsieh. Id. Plaintiffs argued that they did 16 not get sufficient time to depose Dr. Hsieh in May 2018 and required additional deposition time “given 17 the importance of Dr. Hsieh’s testimony in this matter.” Id. at 9:12-14. The Court denied plaintiffs 18 request to further depose Dr. Hsieh. ECF No. 92.2 19 As discussed above, the plaintiff subsequently filed the Nevada state action against Dr. Hsieh in 20 April 2021 but did not depose him until September 2024, after obtaining a favorable judgment in the 21 statute of limitation trial. When plaintiffs pursued Dr. Hsien’s deposition in the state action, they 22 manifestly understood that Dr. Hsieh was important to this case and that defendants objected to such 23 24 2 Plaintiffs did not violate the Court’s 06/22/2020 Order (ECF No. 92) because it did not prohibit 25 plaintiffs from filing a separate action against Dr. Hsieh and taking his deposition in that action. 12 1 deposition. Additionally, the confidentiality issue regarding defendants’ confidential documents that 2 plaintiff intended to use as Dr. Hsieh deposition exhibits also had not been clearly resolved at that time, 3 including that many such documents had not been disclosed in ECF No. 169. Notwithstanding the 4 foregoing, there is no evidence that plaintiffs informed defendants of their intention to depose Dr. Hsieh 5 in the state action using defendants’ information designated confidential per PTO #11. 6 Putting aside that PTO #11 expressly prohibits using confidential documents outside of the MDL 7 actions, PTO #11 includes directives to avoid inadvertent disclosures or violations of the order. For 8 example, Paragraph II.B.6 of the PTO #11 provides that “[i]f a party intends to use material that has 9 been marked as HIGHLY CONFIDENTIAL-P at the deposition of an employee or former employee of 10 a non-producing party in this litigation, then the party shall notify the producing party ten (10) days in 11 advance of the deposition….” ECF No. 285-1 ¶ II.B.6. Similarly, Paragraph II.C.1 of PTO #11 12 provides that “[i]f any party or attorney wishes to… use as an exhibit or as testimonial evidence at a 13 hearing or trial, any CONFIDENTIAL or HIGHLY CONFIDENTIAL-P material, such party must 14 provide reasonable notice to the producing party of the intended use of such information…” Id. ¶ II.B.6. 15 While not directly applicable, these provisions broadly suggest that advance notice should be given of 16 intent to use confidential information as exhibits in non-party depositions or other circumstances where 17 testimonial evidence will be elicited. Given the circumstances here, plaintiffs should have reasonably 18 and prudently taken guidance from the PTO #11 and provided defendants advance notice of the 19 confidentially marked documents they intended to use at Dr. Hsieh’s deposition. Such notice would 20 have given plaintiffs a safe harbor, protected defendants, and brought about the confidentiality issue for 21 resolution before the proverbial horse was out of the barn.3 22
23 3 Defendants appear to briefly suggest that plaintiffs’ counsel may have violated Rule 4.4(a) of the Nevada Rules of Professional Conduct (“NRPC”) because they used defendants’ confidential documents 24 without their knowledge or consent to obtain testimonial evidence from Dr. Hsieh in plaintiffs’ state action against Dr. Hsieh. Rule 4.4(a) states, in relevant part that “a lawyer shall not…use methods of 25 13 1 IV. APPROPRIATE SANCTIONS FOR PLAINTIFFS’ VIOLATION OF PTO #11 2 The Court has “broad discretion to impose sanctions.” Official Airline Guides, Inc. v. Goss, 6 3 F.3d 1385, 1397 (9th Cir. 1993). The Court may impose “any and all appropriate” sanctions under 4 Local Rule IA 11-8. LR IA 11-8. The Court “has great latitude in imposing sanctions under Fed. R. 5 Civ. P. 37,” Lew v. Kona Hosp., 754 F.2d 1420, 1425 (9th Cir. 1985), including the scope and extent of 6 such sanctions, Steelman Partners v. Sanya Gaosheng Inv. Co., Ltd., No. 09-CV-01016-GMN-GWF, 7 2016 WL 8711691, at *2 (D. Nev. Oct. 28, 2016). “Willfulness, bad faith, or fraud are not prerequisites 8 to the imposition of sanctions under Rule 37(b); a party's culpability is relevant only in determining 9 which sanctions are appropriate, not whether sanctions should be imposed.” Rio Props., Inc. v. Stewart 10 Annoyances, Ltd., No. CV S 01 0459 LRH PAL, 2005 WL 3846234, at *7 (D. Nev. Oct. 7, 2005).4 11 Considering the relevant circumstances and the parties’ arguments, the following sanctions are 12 appropriate: 13 First, plaintiffs are prohibited from using the state action deposition of Dr. Hsieh in this action 14 for any purpose. 15 Second, plaintiffs are prohibited from using in any other action, including their state action 16 against Dr. Hsieh, the following documents identified in their supplemental spreadsheet at ECF No. 313- 17 1: documents numbered 5, 6, 7, 8, 12, 13, 14, 15, 23, 24, 46, 70, 71, 72, 88, 89, 95, 102, 142, 190, 197, 18 211, 226, 227, or 233. 19 Finally, defendants are awarded a limited amount of expenses. Specifically, plaintiffs shall pay 20 defendants their reasonable expenses, including attorneys’ fees, in connection with their Motion and 21 22 obtaining evidence that violate the legal rights of such a person.” NRPC 4.4(a). The Court makes no determination about this issue because it was not substantively developed or addressed by either party. 23 4 Willfulness, bad faith, or fault are relevant only if a court imposes dispositive sanctions. See Halaco 24 Engineering Co. v. Costle, 843 F.2d 376, 380 (9th Cir.1988) (sanction of default judgment requires finding of willfulness, bad faith, or fault by the offending party). The Court is not imposing dispositive 25 or other similar severe sanctions here. 14 1 further limited by the fact that plaintiffs violated PTO #11 only with respect to the twenty-five 2 documents identified in this order. The Court will allocate such award after considering plaintiffs’ 3 affidavit or declaration in support of such expenses, as requested below. The Court finds the 4 circumstances here make a broader award of expenses, including attorneys’ fees, unjust. 5 The Court exercises its discretion and denies the other sanctions requested by defendants or to 6 additionally hold plaintiffs in contempt. 7 V. CONCLUSION & ORDER 8 For the foregoing reasons, 9 IT IS ORDERED that: 10 (1) Defendants’ Motion for Sanctions (“Motion”) (ECF No. 284-filed under seal) 11 (ECF No. 285-publicly filed Motion for Sanctions) is GRANTED. 12 (2) Plaintiffs are prohibited from using in this action for any reason the September 23, 13 2024, deposition of Dr. Geoffrey Hsieh taken in the Eighth Judicial District Court 14 Case No. A-21-833038-C, Clark County, Nevada (“state action”). 15 (3) Plaintiffs are prohibited from using in any other action, including the state action 16 against Dr. Hsieh, the following documents identified in their supplemental 17 spreadsheet at ECF No. 313-1: documents numbered 5, 6, 7, 8, 12, 13, 14, 15, 23, 18 24, 46, 70, 71, 72, 88, 89, 95, 102, 142, 190, 197, 211, 226, 227, or 233. 19 (4) Plaintiffs shall pay defendants their reasonable expenses, including attorneys’ 20 fees, in connection with their Motion and further limited by the fact that plaintiffs 21 violated PTO #11 only with respect to the documents identified in the preceding 22 Paragraph 3. 23 IT IS FURTHER ORDERED that defendants shall file by November 21, 2025, an Affidavit or 24 Declaration setting forth the requested fees and costs, and addressing the factors set forth in CLM 25 15 1 || Partners LLC vy. Fiesta Palms, LLC, No. 2:11-cv-01387-PMP-CWH, 2013 WL 6388760 (D. Nev. Dec. 2 2013). Plaintiffs may have until December 8, 2025, to file a response to defendants’ fees declaration 3 || or affidavit. 4 IT IS FURTHER ORDERED that documents at ECF No. 313-2 through 313-37 shall be struck 5 || from the docket. 6 DATED: November 4, 2025. 7 IT IS SO ORDERED.
10 Unidéd ee trate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16