Is proportional, discoverable information needed, in its entirety, at the DFS (“Defendant Fact Sheet”) stage of pre-trial discovery?

Does Good Discovery Come to Those Who Wait?

Author: Luke Iovine
Case Citation: In re Fluoroquinolone Prods. Liab. Litig., 2016 WL 4045414 (D. Minn. 2016)
Employer/Personnel Implicated: McKesson Corp; Drug Manufacturers
eLesson Learned: Discovery should be proportional to the needs of a case. In considering the importance of the discovery issues at stake, courts should balance the burden or expense of the proposed discovery against its benefit.
Tweet This: Discovery Disputes Over Defendant Fact Sheets

California citizens (“Plaintiffs”) alleged that they developed peripheral neuropathy after using Cipro and other generic versions of the drug. Cipro was manufactured by many drug manufacturers, especially McKesson Corporation (“Defendant”). All of the complainants allege claims of fraud, negligent misrepresentation, and fraudulent concealment, and strict liability against McKesson for distributing the drug that Plaintiffs ingested.

Following a meet-and-confer process, three disputes remained with regard to the proposed pretrial order addressing the Defendant Fact Sheet (“DFS”). The disputes were discussed in July of 2016 at a status conference and now this Court is tasked with ruling on each of the three disputes between the adverse parties.

The primary disagreement between the parties was whether McKesson was required to search custodial files for each DFS, or whether they could limit their searches to existing databases and central repositories. Under the Federal Rules of Civil Procedure, “discovery should be proportional to the needs of the case, considering the importance of the issues at stake in the action, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” 26(b)(1). In this instance, the court determined that it would be a “significant burden” for McKesson to search custodial files for each DFS, rather than rely on the existing databases and central repositories. As part of its rationale, this Court emphasized how Plaintiffs needed to show more than “less-than-certain benefits” to require McKesson to undertake such a costly burden. However, McKesson, as well as the court, acknowledged that individual custodial-file searches may likely be warranted for a narrower group of cases at a later stage of the litigation. In addition, the court noted how “Plaintiffs [were] free to seek permission from the Court to engage in further discovery if the information available in these ‘structured databases’ turns out to be insufficient.”

Secondarily, both parties disagreed over whether McKesson must provide the information requested by the DFS in “chart form” or whether they could merely provide and refer to documents containing the information. With respect to readability, a party has a duty to turn information over in a readable form. A party can also request information to be turned over in a particular form. Here, this Court determined that because the Plaintiff Fact Sheet (“PFS”) required Plaintiffs to complete “charts” rather than simply relying on attachments, Defendants must also turn over its information pertaining to DFS in “chart form.”

Lastly, the parties disagreed whether McKesson was required to provide data pertaining to physician prescribing practices for antibiotics generally, rather than for the specific fluoroquinolones. This Court determined that while general prescribing practices may be relevant to this matter, the benefit for Plaintiffs is not “entirely clear” at this stage of litigation. The court held that the Defendants did not need to provide its prescribing practices beyond their particular fluoroquinolones practices. It seemed unnecessary to have Defendants provide prescribing data for all antibiotics.

In conclusion, the Court ordered the parties to submit an updated version of the Pretrial Order on Defendant Fact Sheets within seven days after the conclusion of the hearing.

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