1 2 3 4 5 6 7 10 11 MICHELLE KINNEE, Case No.: 22-cv-604-JLS-DDL
12 Plaintiff, ORDER: 13 v. (1) DENYING JOINT MOTION 14 TEI BIOSCIENCES INC.; FOR ENTRY OF ESI INTEGRA LIFESCIENCES PROTOCOL [Dkt. No. 73]; 15 CORPORATION; LIFESCIENCES and 16 SALES LLC; and DOES 1 through 50, inclusive, (2) DIRECTING DEFENDANTS 17 TO SERVE RULE 26- Defendant. DISCLOSURES 19
20 21 Before the Court is the parties’ Joint Motion for Entry of an Order Governing 22 Discovery of Electronically Stored Information. Dkt. No. 73. The Court held a 23 Status Conference on October 28, 2024 to discuss the parties’ proposal. For the 24 reasons stated below and discussed on the record, the Joint Motion is DENIED. 25 The Court further ORDERS Defendants to serve initial disclosures that comply with 26 Federal Rule of Civil Procedure 26(a)(1)(A)(i) within seven days of this Order. 27 The Court begins with some general principles. “[E]lectronic discovery is 28 generally subject to the same discovery requirements as other relevant information 1 . . ..” NuVasive, Inc. v. Alphatec Holdings, Inc., No. 18-CV-0347-CAB-MDD, 2019 2 WL 4934477, at *2 (S.D. Cal. Oct. 7, 2019) (citing The Sedona Principles, Third 3 Edition, 19 SEDONA CONF. J. 1 (2018)). In accordance with Rules 26 and 34, 4 the requesting party “is entitled to ask for relevant documents, and [the responding 5 party] is required to use reasonable diligence to look for them.” Davis v. Pinterest, 6 Inc., No. 19CV07650HSGTSH, 2021 WL 3045878, at *3 (N.D. Cal. July 20, 2021) 7 (further noting, “[i]t is that simple.”). Ultimately, it is the responding party’s 8 obligation to address requests for production as required by Rule 34, consistent 9 with the principle that “[r]esponding parties are best situated to evaluate the 10 procedures, methodologies, and technologies appropriate for preserving and 11 producing their own electronically stored information.” NuVasive, 2019 WL 12 4934477, at *2 (citation omitted). As such, “absent agreement among the parties, 13 the party who will be responding to discovery requests is entitled to select the 14 custodians it deems most likely to possess responsive information and to search 15 the files of those individuals.” In re EpiPen (Epinephrine Injection, USP) Mktg., 16 Sales Pracs. & Antitrust Litig., No. 17-MD-2785-DDC-TJJ, 2018 WL 1440923, at 17 *2 (D. Kan. Mar. 15, 2018) (citations omitted). “If material information is not 18 preserved or disclosed because of an unreasonable choice, there may be 19 sanctionable consequences.” See Hastings v. Ford Motor Co., No. 19-CV-2217- 20 BAS-MDD, 2021 WL 1238870, at *3 (S.D. Cal. Apr. 2, 2021). 21 As in all discovery matters, the Court expects the parties to work 22 cooperatively and in good faith about electronically stored information (“ESI”) 23 search parameters, including search terms and custodians, to identify information 24 responsive to each party’s requests for production. See NuVasive, 2019 WL 25 4934477, at *1 (“the parties should seek to reach agreement regarding production 26 of electronically stored information”). “The parties should . . . be as transparent as 27 possible” throughout this process. Hastings, 2021 WL 1238870, at *3. 28 / / / 1 The Court also expects the parties to faithfully comply with the Federal Rules 2 of Civil Procedure. Such compliance is essential to an efficient and cost-effective 3 discovery process. Relevant to this Order, Rule 26 provides that a party “must, 4 without awaiting a discovery request, provide to the other parties: the name 5 . . . of each individual likely to have discoverable information – along with the 6 subjects of that information – that the disclosing party may use to support its claims 7 or defense, unless the use would be solely for impeachment . . ..” Fed. R. Civ. P. 8 26(a)(1)(A)(i) (emphasis added). Defendants’ initial disclosures state, in relevant 9 part: 10 Rule 26(a)(1)(A)(i) – Individuals Likely to Have Discoverable 11 Information. 12 Due to the fact that Integra has thousands of employees, and the general nature of many of the allegations in Plaintiff’s Complaint, it is 13 impossible for Integra to comprehensively and specifically identify 14 every individual likely to have discoverable information that Integra may use to support its claims or defenses. 15 * * * 16 Integra’s designated company representative(s). Designated company 17 representative(s) for Integra is/are expected to have information about the following topics related to the Subject Device: design, 18 manufacturing, marketing, and distribution of the Subject Device, as 19 well as the regulatory clearance of the SurgiMend® hernia mesh device by the U.S. Food and Drug Administration (“FDA”). Integra’s 20 designated company representative(s) are yet to be determined by 21 Integra. 22 * * * 23 Integra’s employees and/or former employees who may have knowledge about Plaintiff and/or the Subject Device. These witnesses 24 may have information regarding the Subject Device; Plaintiff’s alleged 25 implant procedure on April 26, 2017; communications with Dr. Stephen Summers about Plaintiff and/or the Subject Device; communications 26 with Sharp Chula Vista Medical Center about Plaintiff and/or the 27 Subject Device. 28 / / / 1 The Court finds these disclosures – which do not identify a single corporate 2 witness by name, much less the subject(s) of information possessed by each 3 witness – do not comply with Rule 26(a)(1)(A)(i). The Court is not persuaded by 4 Defendants’ statements at the Status Conference that they were unable to identify 5 witnesses with relevant, discoverable information before receiving Plaintiff’s 6 document requests, as that position conflates Defendants’ initial disclosure 7 obligations under Rule 26 with their obligation to produce responsive documents 8 under Rule 34. Similarly, the Court finds unpersuasive Defendants’ reliance on 9 the statement in their initial disclosures purporting to “reserve[] the right to 10 supplement and/or amend this list” given Defendants’ failure to identify a single 11 witness in the first instance. Defendants’ failure to provide compliant initial 12 disclosures creates an impediment to the parties’ ability to engage in a meaningful 13 discussion and, ideally, agreement regarding ESI. 14 For the foregoing reasons, the Court ORDERS as follows: 15 1. The Joint Motion for Entry of an Order Governing Discovery of 16 Electronically Stored Information [Dkt. No. 73] is DENIED. 17 2. Defendants must serve supplemental Rule 26(a)(1)(A)(i) disclosures 18 by email by not later than November 27, 2024. 19 3. By not later than December 11, 2024, Defendants must provide 20 Plaintiff with their proposal for the search for ESI responsive to Plaintiff’s document 21 requests, including search terms and custodians if applicable. 22 4. By not later than December 18, 2024, Plaintiff shall provide 23 Defendants with any counterproposal concerning additional custodians, search 24 terms or other search parameters. Plaintiff’s counterproposal “must be specific 25 and explain why the additional custodians or search terms will plausibly yield 26 responsive ESI.” Emerson v. Iron Mountain Info. Mgmt. Servs., Inc., No. 27 20CV08607YGRAGT, 2021 WL 8085488, at *1 (N.D. Cal. Sept. 2, 2021). 28 / / / 1 ||Defendants must consider in good faith any additional search parameters 2 || proposed by Plaintiff. 3 5. By not later than December 30, 2024, the parties must meet and 4 ||confer by Zoom or in person regarding their respective ESI proposals. 5 6. By not later than January 6, 2025, Defendants must inform Plaintiff of 6 ||the search parameters that Defendants will use to collect responsive documents. 7 7. All deadlines set forth in the Court's September 17, 2024 Scheduling 8 ||Order [Dkt. No.
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1 2 3 4 5 6 7 10 11 MICHELLE KINNEE, Case No.: 22-cv-604-JLS-DDL
12 Plaintiff, ORDER: 13 v. (1) DENYING JOINT MOTION 14 TEI BIOSCIENCES INC.; FOR ENTRY OF ESI INTEGRA LIFESCIENCES PROTOCOL [Dkt. No. 73]; 15 CORPORATION; LIFESCIENCES and 16 SALES LLC; and DOES 1 through 50, inclusive, (2) DIRECTING DEFENDANTS 17 TO SERVE RULE 26- Defendant. DISCLOSURES 19
20 21 Before the Court is the parties’ Joint Motion for Entry of an Order Governing 22 Discovery of Electronically Stored Information. Dkt. No. 73. The Court held a 23 Status Conference on October 28, 2024 to discuss the parties’ proposal. For the 24 reasons stated below and discussed on the record, the Joint Motion is DENIED. 25 The Court further ORDERS Defendants to serve initial disclosures that comply with 26 Federal Rule of Civil Procedure 26(a)(1)(A)(i) within seven days of this Order. 27 The Court begins with some general principles. “[E]lectronic discovery is 28 generally subject to the same discovery requirements as other relevant information 1 . . ..” NuVasive, Inc. v. Alphatec Holdings, Inc., No. 18-CV-0347-CAB-MDD, 2019 2 WL 4934477, at *2 (S.D. Cal. Oct. 7, 2019) (citing The Sedona Principles, Third 3 Edition, 19 SEDONA CONF. J. 1 (2018)). In accordance with Rules 26 and 34, 4 the requesting party “is entitled to ask for relevant documents, and [the responding 5 party] is required to use reasonable diligence to look for them.” Davis v. Pinterest, 6 Inc., No. 19CV07650HSGTSH, 2021 WL 3045878, at *3 (N.D. Cal. July 20, 2021) 7 (further noting, “[i]t is that simple.”). Ultimately, it is the responding party’s 8 obligation to address requests for production as required by Rule 34, consistent 9 with the principle that “[r]esponding parties are best situated to evaluate the 10 procedures, methodologies, and technologies appropriate for preserving and 11 producing their own electronically stored information.” NuVasive, 2019 WL 12 4934477, at *2 (citation omitted). As such, “absent agreement among the parties, 13 the party who will be responding to discovery requests is entitled to select the 14 custodians it deems most likely to possess responsive information and to search 15 the files of those individuals.” In re EpiPen (Epinephrine Injection, USP) Mktg., 16 Sales Pracs. & Antitrust Litig., No. 17-MD-2785-DDC-TJJ, 2018 WL 1440923, at 17 *2 (D. Kan. Mar. 15, 2018) (citations omitted). “If material information is not 18 preserved or disclosed because of an unreasonable choice, there may be 19 sanctionable consequences.” See Hastings v. Ford Motor Co., No. 19-CV-2217- 20 BAS-MDD, 2021 WL 1238870, at *3 (S.D. Cal. Apr. 2, 2021). 21 As in all discovery matters, the Court expects the parties to work 22 cooperatively and in good faith about electronically stored information (“ESI”) 23 search parameters, including search terms and custodians, to identify information 24 responsive to each party’s requests for production. See NuVasive, 2019 WL 25 4934477, at *1 (“the parties should seek to reach agreement regarding production 26 of electronically stored information”). “The parties should . . . be as transparent as 27 possible” throughout this process. Hastings, 2021 WL 1238870, at *3. 28 / / / 1 The Court also expects the parties to faithfully comply with the Federal Rules 2 of Civil Procedure. Such compliance is essential to an efficient and cost-effective 3 discovery process. Relevant to this Order, Rule 26 provides that a party “must, 4 without awaiting a discovery request, provide to the other parties: the name 5 . . . of each individual likely to have discoverable information – along with the 6 subjects of that information – that the disclosing party may use to support its claims 7 or defense, unless the use would be solely for impeachment . . ..” Fed. R. Civ. P. 8 26(a)(1)(A)(i) (emphasis added). Defendants’ initial disclosures state, in relevant 9 part: 10 Rule 26(a)(1)(A)(i) – Individuals Likely to Have Discoverable 11 Information. 12 Due to the fact that Integra has thousands of employees, and the general nature of many of the allegations in Plaintiff’s Complaint, it is 13 impossible for Integra to comprehensively and specifically identify 14 every individual likely to have discoverable information that Integra may use to support its claims or defenses. 15 * * * 16 Integra’s designated company representative(s). Designated company 17 representative(s) for Integra is/are expected to have information about the following topics related to the Subject Device: design, 18 manufacturing, marketing, and distribution of the Subject Device, as 19 well as the regulatory clearance of the SurgiMend® hernia mesh device by the U.S. Food and Drug Administration (“FDA”). Integra’s 20 designated company representative(s) are yet to be determined by 21 Integra. 22 * * * 23 Integra’s employees and/or former employees who may have knowledge about Plaintiff and/or the Subject Device. These witnesses 24 may have information regarding the Subject Device; Plaintiff’s alleged 25 implant procedure on April 26, 2017; communications with Dr. Stephen Summers about Plaintiff and/or the Subject Device; communications 26 with Sharp Chula Vista Medical Center about Plaintiff and/or the 27 Subject Device. 28 / / / 1 The Court finds these disclosures – which do not identify a single corporate 2 witness by name, much less the subject(s) of information possessed by each 3 witness – do not comply with Rule 26(a)(1)(A)(i). The Court is not persuaded by 4 Defendants’ statements at the Status Conference that they were unable to identify 5 witnesses with relevant, discoverable information before receiving Plaintiff’s 6 document requests, as that position conflates Defendants’ initial disclosure 7 obligations under Rule 26 with their obligation to produce responsive documents 8 under Rule 34. Similarly, the Court finds unpersuasive Defendants’ reliance on 9 the statement in their initial disclosures purporting to “reserve[] the right to 10 supplement and/or amend this list” given Defendants’ failure to identify a single 11 witness in the first instance. Defendants’ failure to provide compliant initial 12 disclosures creates an impediment to the parties’ ability to engage in a meaningful 13 discussion and, ideally, agreement regarding ESI. 14 For the foregoing reasons, the Court ORDERS as follows: 15 1. The Joint Motion for Entry of an Order Governing Discovery of 16 Electronically Stored Information [Dkt. No. 73] is DENIED. 17 2. Defendants must serve supplemental Rule 26(a)(1)(A)(i) disclosures 18 by email by not later than November 27, 2024. 19 3. By not later than December 11, 2024, Defendants must provide 20 Plaintiff with their proposal for the search for ESI responsive to Plaintiff’s document 21 requests, including search terms and custodians if applicable. 22 4. By not later than December 18, 2024, Plaintiff shall provide 23 Defendants with any counterproposal concerning additional custodians, search 24 terms or other search parameters. Plaintiff’s counterproposal “must be specific 25 and explain why the additional custodians or search terms will plausibly yield 26 responsive ESI.” Emerson v. Iron Mountain Info. Mgmt. Servs., Inc., No. 27 20CV08607YGRAGT, 2021 WL 8085488, at *1 (N.D. Cal. Sept. 2, 2021). 28 / / / 1 ||Defendants must consider in good faith any additional search parameters 2 || proposed by Plaintiff. 3 5. By not later than December 30, 2024, the parties must meet and 4 ||confer by Zoom or in person regarding their respective ESI proposals. 5 6. By not later than January 6, 2025, Defendants must inform Plaintiff of 6 ||the search parameters that Defendants will use to collect responsive documents. 7 7. All deadlines set forth in the Court's September 17, 2024 Scheduling 8 ||Order [Dkt. No. 67], including the January 29, 2025 substantial completion 9 ||deadline,! remain in effect and will not be modified absent a showing of good 10 || cause. 11 || IT IS SO ORDERED. 12 || Dated: November 21, 2024 ait 13 Tb Lh, 14 “Hon. DavidD.LeshnerS™S~™S 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25
27 The Court’s September 17, 2024 Scheduling Order contains a clerical error. 28 The deadline to substantially complete the production of documents responsive to another party’s document requests is January 29, 2025, not January 29, 2024.