Williams v. Biomet Orthopedics Inc

• Court: District Court, N.D. Indiana
• Decided: November 15, 2019
• Docket: 3:18-cv-00211
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION ANNETTE WILLIAMS, ) ) CASE NO. 3:18cv00211RLM-MGG Plaintiff, ) v. ) This Document Relates To: ) Case No. 3:12-MD-2391RLM-MGG BIOMET, INC., et al. ) ) Defendants ) MEMORANDUM AND ORDER Annette Williams sued Biomet in the District of Utah, pursuing state law tort, contract, and consumer law claims after she underwent revision surgery due to problems with her M2a hip implant. The Judicial Panel on Multidistrict Litigation transferred her case to this court’s Biomet MDL docket, MDL-2391. [Doc. No. 7]. Ms. Williams has moved to compel Biomet to respond to 36 interrogatories and requests for admissions to which Biomet has objected. I heard argument on the motion to compel (and for sanctions) on August 22. The parties seem to agree on what has happened procedurally. Ms. Williams provided Biomet with her Plaintiff Fact Sheet in May 2018. Case- specific discovery for the group that includes this case opened in November 2018. The parties deposed the implanting surgeon in February 2019, and Ms. Williams served her interrogatories and requests for production on Biomet in March. In April, Biomet served on Ms. Williams the Defendant Fact Sheet (the Case Management Order called for service in September 2018), a complaint file containing any documents in Biomet’s custody related to Ms. Williams or her surgery (manufacturing records for Ms. Williams’ device; Biomet’s risk management analysis; and Biomet’s complaint handling and adverse event reporting to the FDA regarding Ms. Williams’s surgeries), notice that Biomet didn’t have a relationship with Ms. Williams’s surgeon (which would have required production of a surgeon file), and responses.

In May, the parties chose dates for depositions of Ms. Williams, the sales representative, and Ms. Williams’s revising surgeon. Ms. Williams refused to go forward with the pending depositions due to the discovery dispute. She filed her motion to compel in June, after meet-and-confer efforts collapsed. Case- specific discovery in this case’s group closed in July. Unless otherwise limited by court order . . . [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Fed. R. Civ. P. 26(b)(1). A party may move to compel discovery if the opposing party “fails to answer an interrogatory submitted under Rule 33[,] . . . fails to produce documents . . . as requested under Rule 34[,]” or provides an evasive or incomplete answer or response. Fed. R. Civ. P. 37(a)(3)–(4). “The burden rests upon the objecting party to show why a particular discovery request is improper,” Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 450 (N.D. Ill. 2006) citing Rubin v. Islamic Republic of Iran, 349 F.Supp.2d 1108, 1111 (N.D. Ill. 2004)), and that showing must be made with specificity. Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009) (citing Graham v. Casey's General Stores, 206 F.R.D. 251, 254 (S.D. Ind. 2002)). A court deciding whether to limit discovery should “consider the totality of the circumstances, weighing the value of the material sought against the burden of providing it, and taking into account society's interest in furthering the truthseeking function in the particular case before the court.”

Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (quoting Rowlin v. Alabama, 200 F.R.D. 459, 461 (M.D. Ala. 2001)) (internal quotation marks omitted).

A. Ms. Williams moves to compel responses to interrogatories to which she believes Biomet made boilerplate objections, which the rules don’t allow. Biomet has withdrawn the objections that Biomet described as “general” and the plaintiff called “boilerplate.” The objections appeared to lean toward the boilerplate side of the spectrum: they set forth general grounds upon which

Biomet contended the material sought wasn’t discoverable, but didn’t explain just how the objection applied to the information sought. But Biomet’s response to the motion to compel laid its reasoning out well, and when one looks back at the “general” objection, the objection is perfectly clear: Biomet argues that it already has produced the requested information, either to the plaintiffs’ steering committee or to Rocket Trak, a third party vendor from which Ms. Williams can obtain the information under the same terms that would apply to Biomet. That doesn’t mean the objections are sufficient, but

they aren’t impermissible boilerplate responses. Biomet’s response to the motion to compel says that it withdraws its general objections, “with the exception of No.5, which preserves privilege[.]” Biomet used the same language in General Objection No. 5 in its objections and responses to both the interrogatories and requests for production: Biomet

objected “to the extent that they seek information or documents that are subject to attorney-client privilege, work-product doctrine or other protections.” This objection is a blanket, general objection that lacks the specificity required for assertion of a privilege in discovery. See Yessenow v. Hudson, 270 F.R.D. 422, 427 (N.D. Ind. 2010) (citing Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009). To the extent Biomet has asserted a privilege objection to any of the interrogatories or requests for production, it provides no basis for refusal to produce the information. But since Biomet doesn’t appear

to have withheld any information or documents on the strength of its privilege assertion, the court denies the motion to compel insofar as it is based on the inadequacy of that objection.

B. This MDL docket has been operative since 2012. Hundreds of cases already have been remanded or transferred to other courts for trial, with all parties and courts understanding that most case-specific, and all non-case-

specific discovery (also described as “general” and “generic” in past orders), has been completed in the MDL court. For the most part, Biomet has satisfied its discovery obligations in two ways. First, Biomet produced millions of documents and custodian-deponents early in the docket’s life. Most of those, as I understand it, related to the development and manufacture of, the dissemination of information about, and

negative information known to Biomet relating to, the Biomet devices at issue in this docket. Second, with respect to each plaintiff whose case entered this docket, Biomet produced to the Plaintiffs’ Steering Committee a plaintiff-specific “Defendant’s Fact Sheet” and a plaintiff-specific complaint file. I don’t

understand Ms. Williams to claim that Biomet didn’t produce her fact sheet and complaint file to the steering committee. Biomet reports that it arranges for each plaintiff’s full medical records to be kept by a third-party vendor named Record Trak, which in turn makes the records available to plaintiffs on the same terms the records are available to Biomet.

Several of Ms. Williams’s interrogatories and document requests seek information contained in the medical records kept by the third-party vendor. Other interrogatories and requests seek information that is included in the information turned over to the Plaintiff’s Steering Committee. Biomet responded to some of those interrogatories and requests by specifically directing Ms. Williams to the Plaintiffs’ Steering Committee and the third-party vendor. Ms. Williams contends that isn’t good enough, that Biomet must produce the requested information and documents to her counsel rather than simply point her to a bucket full of discovery.

Ms. Williams might be right if this case wasn’t part of a multi-district litigation docket. The Judicial Panel on Multidistrict Litigation created this MDL docket because it would “promote the just and efficient conduct of” the constituent cases. See 28 U.S.C. § 1407(a). Among the ways in which an MDL docket can further that statutory goal is by reducing the need for each individual plaintiff to retain expert witnesses, by reducing the need for expert witnesses and corporate officers to give depositions in each of hundreds or

thousands of cases, and by reducing the burden of discovery on a defendant facing thousands of claims. Court orders, including a transferee court’s case management orders, can limit the scope of discovery. Fed. R. Civ. P. 26(b)(1). Biomet produced hundreds of thousands of documents in electronic form to Record Trak for the

Plaintiffs’ Steering Committee, which serves as a stand-in for each plaintiff for purposes of receipt of discovery materials. The files are readily searchable. Ms. Williams says she shouldn’t have to conduct that search (which carries a cost as well as a risk that her search would miss documents pertinent to her case) because the rules of procedure place that burden on Biomet. If she’s right, a defendant in a mass tort MDL would have to search through the same electronic files thousands of times to narrow the pile of files down to those relating to a given plaintiff. Or Ms. Williams must conduct the search, but only once. Ms. Williams’s argument would defeat one of the main efficiencies of the MDL process.

Biomet has already produced the general documents and information that Ms. Williams wants. Principles of proportionality favor each plaintiff conducting a single, more specific search, as opposed to Biomet conducting hundreds or thousands of more specific searches. The analysis might differ if the materials weren’t readily searchable, but I don’t understand Ms. Williams to disagree as to whether she could conduct a search of the electronic files. I will deny Ms. Williams’s motion to compel to the extent she asks that Biomet

be ordered to identify responsive material that it already produced to the steering committee, either directly or through third-party vendor Record Trak.

C. The non-case-specific discovery period closed in December 2015. Everyone agrees that Ms. Williams could seek discovery specific to her case, and can conduct much of that discovery while the case is housed in this MDL docket. Biomet objected to some of Ms. Williams’s interrogatories and requests for production on the ground that they seek information not specific to Ms.

Williams’s claims, and I agree with Biomet as to those objections. Biomet objected to interrogatories 2, 3, 4, 5, 6, 12, 21 and 22 as premature and calling for legal conclusions. I can’t identify any demand for legal conclusions that would make any of these interrogatories improper. The prematurity argument seems to be based on the proposition that Biomet must complete its own discovery before it can respond to Ms. Williams’s discovery requests. Biomet’s position has no basis in the law, see, e.g., Remy, Inc. v. Tecnomatic, S.P.A., No. 1:11-cv-00991-SEB, 2013 WL 118334, at *1 (S.D. Ind. Mar. 21, 2013), and some of the interrogatories illustrate why this must be so.

For example, Interrogatory 21 asks Biomet to state in detail the factual basis for its affirmative defenses. Biomet raised 43 affirmative defenses, including res judicata and state-of-the-art. Given the requirements of Rule 11, Biomet must be aware of some factual basis for those assertions; that it might learn more as the case goes on is no reason not to disclose what it knows now.

For these reasons, I grant the motion to compel insofar as it is directed to what Biomet views as premature discovery. Ms. Williams asks for an award of sanctions for Biomet’s unsupported opposition and, if those objections are viewed independently from everything else involved in the motion to compel, her position is strong. But the motion to compel also encompasses Ms. Williams’s position that Biomet must re-acquire discovery materials it already turned over to a third-party vendor for the benefit of all plaintiffs, and bundle it up again specifically for her. To the extent it matters, most of the relief

requested in this motion to compel relates to that position. These circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A)(iii). Based on this reasoning, I GRANT IN PART and DENY IN PART the motion to compel [doc. 56] and DENY the request for sanctions. Specific rulings are attached as an exhibit to this order.

SO ORDERED this 15th day of November 2019

/s/ Robert L. Miller, Jr. Judge, United States District Court

Plaintiff Discovery Biomet Objection Ruling on Motion to Request Compel Int 2 Do you contend that Premature; calls for Motion to compel Plaintiff’s Orthopedic a legal conclusion. granted Treating Physician(s) Will supplement. failed to follow any warnings you provided in connection with the Biomet Hip System (identified in the definition of BIOMET HIP SYSTEM 7(a)-(g) above)? Int 3 Do you contend that Premature; calls for Motion to compel Plaintiff’s Orthopedic a legal conclusion. granted Treating Physician(s) Will supplement. was negligent in advising Plaintiff about the risk of the Biomet Hip System? If so, please identify the date of the negligent act and the basis for Defendants’ belief that there was negligence. Int 4 If your answer to the Premature; calls for Motion to compel previous Interrogatory a legal conclusion. granted is in the affirmative, Will supplement. state what Plaintiff’s Orthopedic Treating Physician(s) should have told Plaintiff regarding the risks of the Biomet Hip System, including the date(s) when these discussions should have occurred. Int 5 Do you contend that Premature; calls for Motion to compel Plaintiff’s Orthopedic a legal conclusion. granted Treating Physician(s) Will supplement. was negligent in implanting the Biomet Hip System into Plaintiff? If so, please identify the date of the negligent act and the basis for Biomet’s belief that there was negligence. Int 7 Do you contend Plaintiff Premature; calls for Motion to compel was not a suitable a legal conclusion. granted candidate for receiving Will supplement. the Biomet Hip System? Int 8 For each component of Cumulative, Motion to compel Plaintiff’s Biomet Hip duplicative denied. Information System identified by sought is Plaintiff in response to duplicative Section II of the Plaintiff Fact Sheet (hereinafter “PFS”) submitted by Plaintiff, please provide the following: (a) The date(s) on which Plaintiff’s Device and any components thereto were manufactured (including date for each Device or component identified); (b) Identify the facility(s) at which Plaintiff’s Device and any components thereto were manufactured (indicating location/address for each Device or component identified); (c) Identify the date of shipment of Plaintiff’s Device from you; (d) Identify the entity that delivered Plaintiff’s Device from you to the Purchaser; (e) Identify the complete chain of custody, all parties, of the device from you to the healthcare provider; (f) Identify by name and address the person or entity to whom the Device was sold; (g) Produce the Device History Record for the Device that was implanted in plaintiff. Int 9 For each component of Cumulative, Motion to compel Plaintiff’s Biomet Hip duplicative denied. Apart from System identified by But Plaintiff’s case file number Plaintiff as having been complaint file provided, implanted, please number is 0380992. information sought provide the following: is duplicative (a) Produce a copy of the complaint file(s), including medical records, if any, for the Plaintiff; (b) Provide the complaint file number(s) that would permit Plaintiff to identify his complaint file, if any, in the general document production. Int 10 Provide the name and “Sales representative Motion to compel business address of the company” is vague denied. Information sales representative and ambiguous. sought is company that received Cumulative, duplicative. the Biomet Hip System duplicative from You that was implanted in Plaintiff. Int 11 Provide the name and Cumulative, Motion to compel business address of the duplicative. denied. Information sales representative(s) sought is present at the surgical duplicative. facility at the time Plaintiff’s Biomet Hip System (or any component part) was implanted and at the time Plaintiff’s Biomet Hip System (or any component part) was explanted. Int 12 [Do] Defendants Premature; calls for Motion to compel contend that any party a legal conclusion. granted. or non-party caused or Will supplement. contributed to cause Plaintiff’s claimed injuries in this matter? If so, please state the following: (a) The identifies of each such party or non- party; (b) The nature of any such action or omission of each such party or non-party that caused or contributed to cause the damages alleged in Plaintiff’s Petition; and (c) The date of each such act or occurrence. Int 13 For each “Dear Doctor” Cumulative, Motion to compel or “Dear Health Care duplicative. denied. Information Provider” letter that you sought is contend was sent to duplicative. Plaintiff’s Physician(s), please: (a) Identify the letter sent; (b) State the date that each letter was sent to Plaintiff’s Health Care Provider; (c) State the person to whom each letter was sent; (d) State the address where it was sent; and (e) Identify the database or documents that demonstrate these facts. Int 14 Please state whether Overbroad Motion to compel Plaintiff’s Physician(s) Not reasonably overruled in light of were ever invited to limited in scope or promise of search. attend and/or did in time frame. fact attend any Seeks information Defendants’ sponsored about other conferences or events. If products. you answer is “yes,” More convenient and please state the less burdensome to following: obtain Plaintiff’s (a) The identity of the medical providers. health care provider attendee; But Biomet will (b) The title, location conduct a and date of the reasonable search conference or event and produce attended; responsive (c) The specific topic of documents. the conference or event; (d) All speakers at the conference or event attended by the health care provider; and (e) Please state the agenda for the conference or program. Int 15 Has Plaintiff’s Overbroad Motion to compel Physician(s) ever Not reasonably overruled in light of contacted you to limited in scope or conducting a request information time frame. search. concerning the Biomet Seeks information Hip System, its about other indications, its benefits products. and/or its risks? If you answer is “yes,” please But Biomet provide the following conducted a information: reasonable search (a) The identity of the and found nothing. health care provider; (b) The date(s) you were contacted; (c) The method of contact (i.e. telephone, e-mail, correspondence, etc.); (d) Identify the person(s) that responded to the health care provider’s inquiry, including their name, address, telephone number, whether currently employed by Defendants, job title and dates of employment; and (e) State the sum and substance of the inquiry and the response. Int 16 Have you been Overbroad Motion to compel contacted by Plaintiff, Not reasonably denied in light of any of his physicians, limited in scope or search already or anyone on behalf of time frame. conducted. Plaintiff concerning Seeks information Plaintiff, other than about other Plaintiff’s counsel? If products. your answer is “yes,” More convenient and please provide the less burdensome to following: obtain Plaintiff’s (a) State the name of medical providers. the person(s) who contacted you; But Biomet (b) State the person(s) conducted a who were contacted reasonable search including their name, and found nothing address and telephone not already number; and produced. (c) State the sum and substance of the communications. Int 17 Do any MedWatch Cumulative, Motion to compel form(s) refer or relate to duplicative. denied. Information Plaintiff? If your answer sought is is “yes,” please provide duplicative. the following: (a) State the name of the person(s) who created the form, including their name, address, telephone number and job title if employed by Defendants; (b) State the date the form(s) was completed; and (c) State the sum and substance of the information contained in the form(s). Int 18 For any and all Cumulative, Motion to compel MedWatch form(s) duplicative. denied. Information identified in the sought is previous Interrogatory, duplicative. did you create any back-up documentation and/or conduct any evaluations concerning Plaintiff? If your answer is “yes,” please provide the following: (a) State the name of the person(s) who created the back-up documentation and/or conducted the evaluations, including their name, address, telephone number and job title if employed by Defendants; (b) State the date the back-up documentation was created and/or evaluations were conducted; and (c) State the sum and substance of the information contained in the back-up documentation and/or results of the evaluations. Int 20 Identify and state in Vague and Motion to compel detail the substance of ambiguous. denied. Information all information obtained Equally accessible to equally available to by the Defendants plaintiff as to Biomet plaintiff. regarding Plaintiff through Record and/or any member of Trak. Plaintiff’s immediate family including, but not limited to the following: (a) All medical records, laboratory results, any medical evidence in Defendants’ possession relating to the Plaintiff; (b) Any surveillance documents, data, videotapes or information; (c) Any information relating to Plaintiff’s employment or the employment of his spouse or immediate family; (d) Statements, interviews, discussions or communications with Plaintiff, Plaintiff’s family, Plaintiff’s employers or work colleagues or any of Plaintiff’s friends; (e) Statements, interviews, discussions or communications with Plaintiff’s Physician(s) or any attorney representing Plaintiff’s treating Physician(s). Int 21 Identify every Premature; calls for Motion to compel affirmative defense that a legal conclusion. granted. Defendants are Will supplement. asserting in this specific case, and state in detail the factual basis for asserting the defense. Int 22 Identify any potential Premature; calls for Motion to compel parties to this lawsuit a legal conclusion. granted. and state in detail the Will supplement. factual basis for your belief that this entity is an appropriate party.

RFP 3 Produce a copy of all Overly broad, Motion to compel written documents and unduly burdensome, denied. Information materials provided by and not reasonably sought is, to the Biomet to PLAINTIFF’s limited in scope or extent it relates to treating orthopedic time frame. Ms. Williams and physician. Seeks documents her device, about other duplicative. products. Cumulative and duplicative. RFP 4 Produce all written Overly broad, Motion to compel documents and unduly burdensome, denied. Information materials Biomet, sales and not reasonably sought is, to the representatives, or sales limited in scope or extent it relates to companies provided to time frame. Ms. Williams and PLAINTIFF’S orthopedic Seeks documents her device, surgeon concerning the about other duplicative. BIOMET HIP SYSTEM. products. Seeks documents not in Biomet’s possession. Cumulative and duplicative. RFP 5 Produce each “Dear Cumulative, Motion to compel Doctor” or “Dear Health duplicative. denied. Information Care Provider” letter sought is that you contend was duplicative. sent to Plaintiff’s Health Care Provider(s). In addition, produce the database or documents that demonstrate that the letter(s) were sent. RFP 6 Produce any and all Overbroad Motion to compel documents relating to Not reasonably overruled in light of whether PLAINTIFF’S limited in scope or promise of search. Orthopedic Health Care time frame. Provider(s) were ever Seeks information invited to attend and/or about other did in fact attend any products. Defendants’ sponsored More convenient and conferences or events; less burdensome to the title; location and obtain Plaintiff’s date of the conferences medical providers. or events attended; the topic of the conferences But Biomet will or events; all speakers conduct a at the conference or reasonable search events; and the and produce agenda/brochure for responsive the conference or documents. events. Corresponds to Interrogatory 14. RFP 7 Produce any and all Overbroad Motion to compel documents related to Not reasonably overruled in light of whether PLAINTIFF’S limited in scope or promise of search. Physician(s) ever time frame. contacted YOU to Seeks information request information about other concerning the BIOMET products. HIP SYSTEM, its More convenient and indications, its effects less burdensome to and/or its risks. obtain Plaintiff’s medical providers.

But Biomet will conduct a reasonable search and produce responsive documents. Corresponds to Interrogatory 15. RFP 8 Produce a copy of any Cumulative, Motion to compel MedWatch form that duplicative. overruled. refers or relates to Information sought PLAINTIFF, including is duplicative. backup documentation concerning PLAINTIFF and any evaluation YOU did concerning the PLAINTIFF. RFP 12 For each component of Cumulative, Motion to compel PLAINTIFF’S BIOMET duplicative. overruled. HIP SYSTEM identified Information sought in Interrogatory No. 8, is duplicative. produce a copy of the complaint file(s) for the PLAINTIFF. For each component of the PLAINTIFF’S BIOMET HIP SYSTEM, provide the Device History Record. RFP 13 Produce all documents Vague and Motion to compel containing information ambiguous. denied. Information obtained by the Equally accessible to equally available to Defendants regarding plaintiff as to Biomet plaintiff. PLAINTIFF and/or any through Record member of PLAINTIFF’S Trak. immediate family including, but not But Biomet has no limited to the following: documents (a) All medical records, responsive to laboratory results, subparts b, c, d, e, information or any g, and h. medical evidence in Defendants’ possession relating to the PLAINTIFF; (b) Any surveillance documents, data, videotapes or information; (c) Any information relating to PLAINTIFF’s employment or the employment of his spouse or immediate family; (d) Statements, interviews, discussions or communications with PLAINTIFF, PLAINTIFF’S family, PLAINTIFF’S employers or work colleagues or any of PLAINTIFF’S friends; (e) Statements, interviews, discussions or communications with PLAINTIFF’S Physician(s); (f) All written documents that relate to, identify, and/or discuss PLAINTIFF; (g) All documents relating to the PLAINTIFF’S financial records in the possession of Defendants, their experts or agents; (h) All documents obtained via social media websites, including, but not limited to, Facebook, Twitter, Instagram, any dating/match-making websites, as well as any website providing free or paid background checks. RFP 14 Produce any document Cumulative, Motion to compel reflecting any actual duplicative. denied. Information communication sought is between YOU and duplicative. PLAINTIFF’S Physician(s) concerning the risks and benefits associated with the BIOMET HIP SYSTEM. RFP 16 Produce any document Overly broad, Motion to compel sent to or received from unduly burdensome. denied. Request is any of PLAINTIFF’S Vague and overbroad. physician(s). ambiguous. Not reasonably limited in scope of time frame and seeks documents about other products. Seeks documents in possession of others. RFP 20 Produce documents Overly broad, Motion to compel sufficient to identify unduly burdensome. denied as each of your sales Vague and duplicative to the representatives or the ambiguous as to extent it addresses like who sold the “custodial file,” “call case-specific BIOMET HIP SYSTEM notes/sheets,” “IMS information. in PLAINTIFF’S home data,” “customer state, including also notes,” “weekly sales their sales territory and notes,” “customer related dates of belief notes,” promotion. For each “tracking notes,” sales representative, “Defendant’s produce a copy of the message boards,” following: (a) their and “video files.” custodial file; (b) Not reasonably personnel file; (c) call limited in scope or notes/sheets; (d) IMS time frame and data; (e) customer seeks documents notes; (f) weekly sales about other notes; (g) customer products. belief notes; (h) tracking Seeks documents in notes; (i) postings on others’ possession. Defendant’s message boards; and/or (j) video But other discovery files. identifies distributor representative company and sales representative involved plaintiff’s device RFP 21 Produce documents Overly broad, Motion to compel sufficient to identify any unduly burdensome. denied as third-party sales Vague and duplicative to the representatives or the ambiguous as to extent it addresses like (both natural “custodial file,” “call case-specific persons and entities) notes/sheets,” “IMS information. who or which sold the data,” “customer BIOMET HIP SYSTEM notes,” “weekly sales in PLAINTIFF’S home notes,” “customer state, including also belief notes,” their sales territory and “tracking notes,” related dates of “Defendant’s promotion. For each message boards,” sales representative, and “video files.” produce a copy of the Not reasonably following: (a) their limited in scope or custodial file, (b) time frame and personnel file; (c) call seeks documents notes/sheets; (d) IMS about other data; (e) customer products. notes; (f) weekly sales Seeks documents in notes; (g) customer others’ possession. belief notes; (h) field or ride-along reports; (i) But other discovery surgical observation identifies distributor reports; (j) Medical representative Device Reports and/or company and sales medical device reports representative and/or (k) tracking involved plaintiff’s notes. device RFP 22 Produce all documents Overly broad, Motion to compel that relate to or reflect unduly burdensome. denied. Request tangible things or other Unreasonably seeks non-case materials ever provided disproportionate. specific information by Defendant to Not reasonably and information physicians or limited in scope or equally available to pharmacies to promote time frame and plaintiff at same the BIOMET HIP seeks documents cost as Biomet. SYSTEM in about other PLAINTIFF’S home products. state, including but not Cumulative, limited to notepads, duplicative. calendars, office supplies, meals, Biomet refers promotional materials, plaintiff to financial contributions, searchable Record product descriptions, Trak materials. product literature, books regarding the BIOMET HIP SYSTEM and other such promotional materials. RFP 23 Produce all documents Overly broad, Motion to compel that relate to or reflect unduly burdensome. denied. Request training materials for Unreasonably seeks non-case the training of sales disproportionate. specific information representatives, Not reasonably and information distributors or the like limited in scope or equally available to employed by Defendant time frame and plaintiff at same or third parties in seeks documents cost as Biomet. PLAINTIFF’S home state about other to promote the BIOMET products. HIP SYSTEM, including Cumulative, but not limited to duplicative. instructions, memorandum, Biomet refers PowerPoints, emails, plaintiff to newsletters, films, searchable Record scripts, questions and Trak materials. answers, alerts, role plays, videos, voice mail blasts, webcasts, pictures, scientific or medical information or other materials or information. RFP 24 All contracts with third Overly broad, Motion to compel parties in connection unduly burdensome. denied. Request with failed and/or Unreasonably seeks non-case returned BIOMET HIP disproportionate. specific information SYSTEM from Not reasonably and information PLAINTIFF’S medical limited in scope or equally available to providers for storage, time frame and plaintiff at same research, examination, seeks documents cost as Biomet. inspection and/or about other testing. products. Cumulative, duplicative.

Biomet refers plaintiff to searchable Record Trak materials. RFP 27 Produce all documents Vague and Motion to compel that relate to any ambiguous as to denied because proposed or instituted “proposed or Biomet has collection, retrieval or instituted collection, produced what it storage by you (or any retrieval or storage.” has. one acting on your Seeks documents in behalf) from PLAINTIFF third parties’ physicians, hospitals, possession. sales representatives, or device suppliers of any Biomet refers BIOMET HIP SYSTEM plaintiff documents which had already been already produced, implanted in which include all PLAINTIFF. responsive documents. RFP 28 Produce all documents Vague and Motion to compel that relate to any ambiguous as to denied because proposed or instituted “proposed or Biomet has tests, analysis, instituted tests, produced what it evaluations or analysis, evaluations has. investigations or or investigations.” PLAINTIFF’S explanted or withdrawn BIOMET Biomet refers HIP SYSTEM which plaintiff documents were returned to, or already produced, collected by, you. which include all responsive documents.