1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONNA PARKS, et al., Case No.: 20cv0989-TWR(RBB)
12 Plaintiffs, ORDER DENYING AS MOOT 13 v. DEFENDANTS’ MOTION TO ENFORCE 11/18/2020 ORDER 14 ETHICON, INC., et al., REGARDING COMPENSATION OF 15 Defendants. DR. DANIEL ELLIOTT AND FOR OTHER RELIEF INCLUDING 16 SANCTIONS [ECF NO. 125] AND 17 MOTION FOR LEAVE TO FILE CONFIDENTIAL EXHIBITS UNDER 18 SEAL [ECF NO. 123] 19 20 On December 30, 2020, Defendants Ethicon, Inc. and Johnson & Johnson filed a 21 Motion to Enforce 11/18/2020 Order Regarding Compensation of Dr. Daniel Elliott and 22 for Other Relief Including Sanctions [ECF No. 125] and a Motion for Leave to File 23 Confidential Exhibits Under Seal [ECF No. 123]. Plaintiff Donna Parks filed an 24 opposition and a response to Defendants’ motions, respectively, on January 19, 2021 25 [ECF Nos. 126, 127]. At the parties’ joint request, the hearing date on the motions was 26 continued from February 2, 2021, to February 23, 2021 [ECF No. 129]. Defendants filed 27 a reply brief on February 16, 2021 [ECF No. 131]. The Court held a hearing on the 28 motions on February 23, 2021 [ECF No. 134]. 1 For the reasons discussed below, Defendants’ Motion to Enforce 11/18/2020 Order 2 and Motion for Leave to File Confidential Exhibits Under Seal are DENIED AS MOOT. 3 I. BACKGROUND 4 On August 28, 2020, Ethicon, Inc. and Johnson & Johnson filed Defendants’ 5 Motion to Enforce MDL Discovery Order Regarding Compensation of Dr. Daniel Elliott 6 [ECF No. 95]. On September 23, 2020, Defendants filed their reply brief in support of 7 the Motion to Enforce [ECF No. 102] and a separate Motion for Leave to File 8 Confidential Exhibits Under Seal in Connection with Reply Brief [ECF No. 99]. The 9 Defendants sought to file under seal a document previously designated as confidential by 10 Plaintiff Parks. (Defs.’ Mot. Leave to File Confidential Ex. 2, ECF No. 99.) They 11 explained: “[G]iven Plaintiff’s designation, the parties met and conferred in an effort to 12 redact this document or to otherwise agree for this document to be filed publicly. 13 However, Plaintiff did not agree, and Defendants therefore respectfully request that this 14 document be conditionally filed under seal.” (Id.) 15 Defendants subsequently filed a Notice of Supplemental Authority in Support of 16 Motion to Enforce MDL Discovery Order [ECF No. 107]. Their Notice of Supplemental 17 Authority prompted Plaintiff to file a response [ECF No. 112]. Plaintiff’s response was 18 accompanied with a Motion to File Documents Under Seal [ECF No. 113]. 19 Plaintiff Donna Parks hereby moves the Court for an order pursuant to Fed. R. Civ. P. 26(c) and pursuant to MDL 2327 Pretrial Order No. 11 to file 20 under seal certain documents that Plaintiff has designated and produced as 21 “confidential” and which is attached to Plaintiff’s Response to Defendants’ Notice of Supplemental Authority (ECF No. 112). Plaintiff’s Motion 22 contains an exhibit (Exhibit C at ECF No. 112-3) that discusses and 23 discloses sensitive and confidential financial compensation of a non-party witness . . . . The exhibit with the “Confidential” designation is filed 24 conditionally under seal with the request [it] be sealed and entered on the 25 docket of this case if the Court deems it appropriate.
26 (Pl.’s Mot. File Docs. Under Seal 2, ECF No. 113.) 27 / / / 28 1 On November 18, 2020, this Court issued an Order Granting in Part and Denying 2 in Part Defendants’ Motion to Enforce MDL Discovery Order Regarding Compensation 3 of Dr. Daniel Elliott [ECF No. 95] and Granting Motions to Seal [ECF Nos. 99, 113]. 4 The Court ordered the immediate production of Dr. Elliott’s compensation records as 5 previously ordered in the multidistrict litigation (“MDL”) action in the Southern District 6 of West Virginia, In Re: Ethicon, Inc. Pelvic Repair System Products Liability Litigation, 7 MDL No. 2327, Case No. 2:12-md-2327. (Id. at 19-20.) The Court also granted 8 Defendants’ requests for a two-hour deposition of Dr. Elliott regarding his compensation 9 records and for the payment of their attorney’s fees for having to enforce the MDL order. 10 (Id. at 20.) Defendants’ motion to conditionally file a document Plaintiff designated as 11 confidential and Plaintiff’s motion to file a document under seal were both granted. (Id.) 12 In their Motion to Enforce 11/18/2020 Order presently before the Court, 13 Defendants initially contended that Plaintiff’s counsel and Dr. Elliott had ignored the 14 November 18, 2020 Order by failing to produce complete compensation information, 15 provide deposition availability for Dr. Elliott, and pay for Defendants’ attorney’s fees. 16 (Defs.’ Mot. Enforce 4-6, ECF No. 125.) Plaintiff responded that Defendants had 17 violated the requirement to meet and confer prior to filing their motion. (Pl.’s Opp’n 7- 18 10, ECF No. 126.) Parks stated that her counsel had made a good faith effort to comply 19 with the November 18, 2020 Order and had provided a revised compensation case list for 20 Dr. Elliott on December 18, 2020. (Id. at 4-6, 10-15.) Plaintiff also advised that she had 21 paid the attorney’s fees award and was working with Defendants on issues relating to Dr. 22 Elliott’s deposition, including whether he would be deposed once or three times (in this 23 case and in two other pelvic mesh pending against Defendants). (Id. at 4, 14-15.) 24 On December 30, 2020, the same day Defendants filed their Motion to Enforce, 25 they filed a Motion for Leave to File Confidential Exhibits Under Seal; their motion 26 acknowledges that Plaintiff asserts Dr. Elliott’s compensation information is confidential. 27 (Mot. Seal 3, ECF No. 123.) Defendants ask that Exhibits G and H to the Declaration of 28 Mollie F. Benedict in Support of Motion to Enforce, which consist of a Declaration of 1 Daniel Elliott, M.D. dated December 18, 2020, and a document entitled “Elliott 5 YR 2 Case List Spreadsheet,” respectively, be conditionally filed under seal because the 3 documents had been designated as confidential by Plaintiff. (Id.) Defendants request 4 that the Court “conditionally lodge these documents under seal subject to Plaintiff 5 making a showing as to why the document[s] should be sealed” and submit that Exhibits 6 G and H should be “ordered publicly filed” if Plaintiff does not make a sufficient 7 showing. (Id. at 4.) In response, Plaintiff argues that the documents contain 8 “confidential financial information, including dollar amounts for services provided by Dr. 9 Daniel Elliott, who is not a party to this case.” (Pl.’s Resp. 2, ECF No. 127.) Parks 10 contends that good cause exists to seal the documents, and notes that this Court 11 previously allowed similar documents to be filed under seal. (Id., citing Order Granting 12 in Part & Den. in Part Defs.’ Mot. Enforce & Granting Mots. Seal 8 n.6, ECF No. 117.) 13 Defendants counter that courts have “repeatedly allowed public disclosure of Dr. Elliott’s 14 compensation information in trials where his testimony had been presented.” (Defs.’ 15 Reply 4, ECF No. 131.) In their view, “[i]t would be fundamentally unfair and wholly 16 misleading to allow Plaintiff to hide the more accurate compensation amount that has 17 now been revealed” and would be “contrary to the interests of judicial economy to allow 18 Plaintiff’s counsel to limit disclosure of Dr. Elliott’s compensation” to this case and the 19 two other pelvic mesh actions against Defendants being handled by Plaintiff’s counsel. 20 (Id. at 5.) 21 Plaintiff and Defendants continued to work to resolve the remaining disputes.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONNA PARKS, et al., Case No.: 20cv0989-TWR(RBB)
12 Plaintiffs, ORDER DENYING AS MOOT 13 v. DEFENDANTS’ MOTION TO ENFORCE 11/18/2020 ORDER 14 ETHICON, INC., et al., REGARDING COMPENSATION OF 15 Defendants. DR. DANIEL ELLIOTT AND FOR OTHER RELIEF INCLUDING 16 SANCTIONS [ECF NO. 125] AND 17 MOTION FOR LEAVE TO FILE CONFIDENTIAL EXHIBITS UNDER 18 SEAL [ECF NO. 123] 19 20 On December 30, 2020, Defendants Ethicon, Inc. and Johnson & Johnson filed a 21 Motion to Enforce 11/18/2020 Order Regarding Compensation of Dr. Daniel Elliott and 22 for Other Relief Including Sanctions [ECF No. 125] and a Motion for Leave to File 23 Confidential Exhibits Under Seal [ECF No. 123]. Plaintiff Donna Parks filed an 24 opposition and a response to Defendants’ motions, respectively, on January 19, 2021 25 [ECF Nos. 126, 127]. At the parties’ joint request, the hearing date on the motions was 26 continued from February 2, 2021, to February 23, 2021 [ECF No. 129]. Defendants filed 27 a reply brief on February 16, 2021 [ECF No. 131]. The Court held a hearing on the 28 motions on February 23, 2021 [ECF No. 134]. 1 For the reasons discussed below, Defendants’ Motion to Enforce 11/18/2020 Order 2 and Motion for Leave to File Confidential Exhibits Under Seal are DENIED AS MOOT. 3 I. BACKGROUND 4 On August 28, 2020, Ethicon, Inc. and Johnson & Johnson filed Defendants’ 5 Motion to Enforce MDL Discovery Order Regarding Compensation of Dr. Daniel Elliott 6 [ECF No. 95]. On September 23, 2020, Defendants filed their reply brief in support of 7 the Motion to Enforce [ECF No. 102] and a separate Motion for Leave to File 8 Confidential Exhibits Under Seal in Connection with Reply Brief [ECF No. 99]. The 9 Defendants sought to file under seal a document previously designated as confidential by 10 Plaintiff Parks. (Defs.’ Mot. Leave to File Confidential Ex. 2, ECF No. 99.) They 11 explained: “[G]iven Plaintiff’s designation, the parties met and conferred in an effort to 12 redact this document or to otherwise agree for this document to be filed publicly. 13 However, Plaintiff did not agree, and Defendants therefore respectfully request that this 14 document be conditionally filed under seal.” (Id.) 15 Defendants subsequently filed a Notice of Supplemental Authority in Support of 16 Motion to Enforce MDL Discovery Order [ECF No. 107]. Their Notice of Supplemental 17 Authority prompted Plaintiff to file a response [ECF No. 112]. Plaintiff’s response was 18 accompanied with a Motion to File Documents Under Seal [ECF No. 113]. 19 Plaintiff Donna Parks hereby moves the Court for an order pursuant to Fed. R. Civ. P. 26(c) and pursuant to MDL 2327 Pretrial Order No. 11 to file 20 under seal certain documents that Plaintiff has designated and produced as 21 “confidential” and which is attached to Plaintiff’s Response to Defendants’ Notice of Supplemental Authority (ECF No. 112). Plaintiff’s Motion 22 contains an exhibit (Exhibit C at ECF No. 112-3) that discusses and 23 discloses sensitive and confidential financial compensation of a non-party witness . . . . The exhibit with the “Confidential” designation is filed 24 conditionally under seal with the request [it] be sealed and entered on the 25 docket of this case if the Court deems it appropriate.
26 (Pl.’s Mot. File Docs. Under Seal 2, ECF No. 113.) 27 / / / 28 1 On November 18, 2020, this Court issued an Order Granting in Part and Denying 2 in Part Defendants’ Motion to Enforce MDL Discovery Order Regarding Compensation 3 of Dr. Daniel Elliott [ECF No. 95] and Granting Motions to Seal [ECF Nos. 99, 113]. 4 The Court ordered the immediate production of Dr. Elliott’s compensation records as 5 previously ordered in the multidistrict litigation (“MDL”) action in the Southern District 6 of West Virginia, In Re: Ethicon, Inc. Pelvic Repair System Products Liability Litigation, 7 MDL No. 2327, Case No. 2:12-md-2327. (Id. at 19-20.) The Court also granted 8 Defendants’ requests for a two-hour deposition of Dr. Elliott regarding his compensation 9 records and for the payment of their attorney’s fees for having to enforce the MDL order. 10 (Id. at 20.) Defendants’ motion to conditionally file a document Plaintiff designated as 11 confidential and Plaintiff’s motion to file a document under seal were both granted. (Id.) 12 In their Motion to Enforce 11/18/2020 Order presently before the Court, 13 Defendants initially contended that Plaintiff’s counsel and Dr. Elliott had ignored the 14 November 18, 2020 Order by failing to produce complete compensation information, 15 provide deposition availability for Dr. Elliott, and pay for Defendants’ attorney’s fees. 16 (Defs.’ Mot. Enforce 4-6, ECF No. 125.) Plaintiff responded that Defendants had 17 violated the requirement to meet and confer prior to filing their motion. (Pl.’s Opp’n 7- 18 10, ECF No. 126.) Parks stated that her counsel had made a good faith effort to comply 19 with the November 18, 2020 Order and had provided a revised compensation case list for 20 Dr. Elliott on December 18, 2020. (Id. at 4-6, 10-15.) Plaintiff also advised that she had 21 paid the attorney’s fees award and was working with Defendants on issues relating to Dr. 22 Elliott’s deposition, including whether he would be deposed once or three times (in this 23 case and in two other pelvic mesh pending against Defendants). (Id. at 4, 14-15.) 24 On December 30, 2020, the same day Defendants filed their Motion to Enforce, 25 they filed a Motion for Leave to File Confidential Exhibits Under Seal; their motion 26 acknowledges that Plaintiff asserts Dr. Elliott’s compensation information is confidential. 27 (Mot. Seal 3, ECF No. 123.) Defendants ask that Exhibits G and H to the Declaration of 28 Mollie F. Benedict in Support of Motion to Enforce, which consist of a Declaration of 1 Daniel Elliott, M.D. dated December 18, 2020, and a document entitled “Elliott 5 YR 2 Case List Spreadsheet,” respectively, be conditionally filed under seal because the 3 documents had been designated as confidential by Plaintiff. (Id.) Defendants request 4 that the Court “conditionally lodge these documents under seal subject to Plaintiff 5 making a showing as to why the document[s] should be sealed” and submit that Exhibits 6 G and H should be “ordered publicly filed” if Plaintiff does not make a sufficient 7 showing. (Id. at 4.) In response, Plaintiff argues that the documents contain 8 “confidential financial information, including dollar amounts for services provided by Dr. 9 Daniel Elliott, who is not a party to this case.” (Pl.’s Resp. 2, ECF No. 127.) Parks 10 contends that good cause exists to seal the documents, and notes that this Court 11 previously allowed similar documents to be filed under seal. (Id., citing Order Granting 12 in Part & Den. in Part Defs.’ Mot. Enforce & Granting Mots. Seal 8 n.6, ECF No. 117.) 13 Defendants counter that courts have “repeatedly allowed public disclosure of Dr. Elliott’s 14 compensation information in trials where his testimony had been presented.” (Defs.’ 15 Reply 4, ECF No. 131.) In their view, “[i]t would be fundamentally unfair and wholly 16 misleading to allow Plaintiff to hide the more accurate compensation amount that has 17 now been revealed” and would be “contrary to the interests of judicial economy to allow 18 Plaintiff’s counsel to limit disclosure of Dr. Elliott’s compensation” to this case and the 19 two other pelvic mesh actions against Defendants being handled by Plaintiff’s counsel. 20 (Id. at 5.) 21 Plaintiff and Defendants continued to work to resolve the remaining disputes. In 22 their Joint Motion to Continue Hearing and Reply Deadline filed on January 21, 2021, the 23 parties indicated that they had had “productive discussions” regarding the issues raised in 24 Defendants’ Motion to Enforce the 11/18/2020 Order and hoped to either resolve or 25 substantially narrow the disputes requiring resolution by the Court. (Joint Mot. 2-3, ECF 26 No. 128.) In their subsequent reply brief, Defendants stated that it was their “hope that 27 all but one of the open issues can be sufficiently resolved prior to the February 23 28 hearing.” (Reply 1, ECF No. 131.) The remaining issue requiring resolution by the 1 Court concerned the confidentiality of Dr. Elliott’s expert compensation information. 2 (Id.) At the February 23, 2021 hearing, Defendants confirmed that they had received 3 updated compensation documentation for Dr. Elliott the night before, the information 4 produced thus far was sufficient, and they planned to address any remaining questions 5 during Dr. Elliott’s deposition. The parties also reported that they had agreed that one 6 deposition would suffice for all three cases in which Dr. Elliott’s deposition had been 7 ordered. 8 II. DISCUSSION 9 It is axiomatic that “[f]ederal courts may not decide questions that cannot affect the 10 rights of litigants in the case before them or give opinion[s] advising what the law would 11 be upon a hypothetical state of facts.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) 12 (internal quotations and citation omitted). “A controversy is moot when ‘the issues 13 presented are no longer live or the parties lack a legally cognizable interest in the 14 outcome.’” Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 15 996 (9th Cir. 1993) (citations omitted). When evaluating whether an issue is moot, the 16 appropriate inquiry is “whether there is anything left for the court to do.” Western Oil 17 and Gas Ass’n v. Sonoma Cty., 905 F.2d 1287, 1290 (9th Cir. 1990) (quoting Wright, 18 Miller & Cooper, Federal Practice and Procedure, § 3532.1 (2d ed. 1984)). 19 Here, the issues presented to the Court are no longer live and there is nothing left 20 for the Court to do. In light of the representations made in Defendants’ reply brief and at 21 the February 23, 2021 motion hearing, the issues raised in Defendants’ Motion to Enforce 22 no longer require resolution by the Court. This motion is accordingly DENIED AS 23 MOOT. Additionally, because the Motion to Enforce need not be resolved, it is 24 unnecessary for the Court to render a decision on the attendant Motion for Leave to File 25 Conditional Exhibits Under Seal. See, e.g., M.A. Mobile Ltd. v. Indian Inst. of Tech. 26 Kharagpur, 400 F. Supp. 3d 867, 897 (N.D. Cal. Sept. 5, 2019) (terminating motions to 27 seal as moot when associated motions did not require court resolution); Certified 28 Nutraceuticals, Inc. v. Clorox Co., Case No. 3:18-cv-00744-W-KSC, 2020 WL 4339489, 1 || at *6-7 (S.D. Cal. July 28, 2020) (denying motion to seal as moot when exhibits to 2 ||counsel’s declaration were neither relevant nor necessary to court’s determination of 3 || dispute). The motion to seal is therefore also DENIED AS MOOT. 4 Ht. CONCLUSION 5 For the reasons discussed above, Defendants’ Motion to Enforce 11/18/2020 Order 6 Motion for Leave to File Confidential Exhibits Under Seal [ECF No. 123] are 7 || DENIED AS MOOT. 8 IT IS SO ORDERED. 9 10 || Dated: March 23, 2021 Brarke 1] Hon. Ruben B. Brooks 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28