Law

Once upon a time there was a federal judge . . . . When we were little, we liked it when our mom spun free-form fairy tales for us.  We would contribute the object of the "was" ("Once upon a time there was a . . . bullfrog"), and she would make up the rest as she went along.  Which is fine for mommies, but less so for federal judges, as today's (very short) case illustrates.

In Fay v. Depuy Orthopedics, Inc., et al, 2015 U.S. Dist. LEXIS 175344 (D.N.D. June 11, 2015), plaintiff's hip was replaced with a metal-on-metal hip system.  The system consisted of various components, two of which were at issue:  the femoral head and the acetabular cup.  Both components come in various sizes, but, for the system to work correctly, matched sizes of the two components must be implanted in the patient.

In Fay, it was undisputed that Plaintiff received mismatched components and had to undergo revision surgery.  One of the defendants was a distributor that marketed and sold the system. Plaintiff's surgeon testified that two specific sales reps employed by the distributor were always in the operating room when he implanted that particular hip system.  According to the surgeon (who was not sued), the reps were responsible, based on a process called "templating" of the patient's x-rays, for placing an appropriate range of sizes of the two components on a table in the operating room before the surgeon arrived.  From the prepared template, the surgeon would determine what size acetabular cup would be implanted, and would ask for that size cup and the correspondingly-sized femoral head.   The sales reps were allegedly responsible for selecting the components from the implant table, verifying for both that they had pulled the size the surgeon requested, and handing the packaged components to the circulating nurse, who unpacked them and placed them in the sterile field.  In the absence of sales reps, the circulating nurse would be responsible for selecting the correct sizes of components.

The distributor moved for summary judgment, arguing that there was no evidence that its sales reps were ever actually in the operating room on the day of the plaintiff's surgery, as the intraoperative report, in which the circulating nurse was responsible for recording the names of everyone in the operating room, omitted any mention of sales rep participation.  Plaintiff argued that the nurse had simply forgotten to include the names of the sales reps, and the surgeon took an affidavit swearing that he never implanted this system without the assistance of his chosen reps. 

But wait – under what legal doctrine could the plaintiff maintain a claim against a distributor based on conduct by its representatives?  Plaintiff argued that it was the reps' "duty and responsibility to make sure proper implants [were] available for the case and that the proper implants [were] in fact what [were] opened and used at the time of surgery."  Fay, 2015 U.S. Dist. LEXIS 175344 at *8 (internal punctuation and citation omitted).  The distributor countered that it owed no such duty to the plaintiff.  The court noted that the parties had "not directed the Court to any legal authority outlining the duty of an orthopedic sales representative in a case of this nature."  Id. at *7-8.  End of decision, right?  If plaintiff could not cite authority for imposing a duty on the sales reps, then it didn't matter whether the reps were in the operating room or not, right?  (Erie principle #1 – if there is no currently existing state-law duty, a federal court exercising diversity jurisdiction is not supposed to create one.  We have law from every circuit (including the Eighth) for that proposition, here and here.)  

Wrong.  Glossing over the legal vacuum to (silently) superimpose an imaginary duty, the judge held that there was a genuine issue of material fact as to whether the reps were present for the surgery, and denied summary judgment.  We shake our figurative head on several levels.  First, call us old-fashioned, but we're pretty sure a plaintiff shouldn't be able to maintain a lawsuit when she has no legal claim, and that it wasn't the defense's burden to find precedent affirmatively rejecting nonexistent duties.  Second, on a more personal level (we represent device manufacturers), we are horrified at the notion that a judge can  "make up" a duty that could subject sales representatives to liability for a surgeon's conduct in an operating room.  In any event, we can only hope that one federal judge in the District of North Dakota will come to his senses as the case progresses.  And that all will live happily ever after. 

We assume that all of our readers by now know that significant changes to the federal discovery rules went into effect on December 1, 2015.  We've posted about them frequently.  We're not going to bore you by describing the changes for the umpteenth time.  There are a couple of new developments, though, that are worth noting.  First, on December 31, 2015, the Supreme Court, per Chief Justice Roberts, issued its "2015 Year-End Report on the Federal Judiciary," available here.  Coming hard on the heels of the rules changes going into effect, the 2015 Report is the best indicator of how the Court contemporaneously intended these rules changes to be applied.  To the extent that the other side is trying to pooh-pooh these changes as not changing much of anything, the 2015 Report suggests that they are quite wrong:

• "Many rules amendments are modest and technical, even persnickety, but the 2015 amendments to the Federal Rules of Civil Procedure are different.  Those amendments . . . address the most serious impediments to just, speedy, and efficient resolution of civil disputes."  2015 Report at 4.
• The amendments "focus discovery − the process of obtaining information within the control of the opposing party − on what is truly necessary to resolve the case" and "address serious new problems associated with vast amounts of electronically stored information."  Id. at 5.
• "The amended rules . . . mark significant change, for both lawyers and judges, in the future conduct of civil trials.  Id.
• "The amendments may not look like a big deal at first glance, but they are. That is one reason I have chosen to highlight them in this report."  Id.
• "Rule 26(b)(1) crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality. . . .  The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery."  Id. at 6-7 (block quote from Rule 26(b)(1) omitted).
• "The 2015 civil rules amendments are a major stride toward a better federal court system. But they will achieve the goal of Rule 1 . . . only if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change."  Id. at 9.
• "[T]he 2015 civil rules amendments provide a concrete opportunity for actually getting something done."  Id. at 11.

The Chief Justice's 2015 Report was among the authorities cited in Kissing Camels Surgery Center, LLC v. Centura Health Corp., 2016 WL 277721 (Mag. D. Colo. Jan. 22, 2016), medically-related (but not drug/device) litigation involving claims – and counterclaims – between four surgical centers and some of the largest health insurers in Colorado.  The lead plaintiff, Kissing Camels, is located in Colorado Springs, which accounts for the unusual name (a rock formation).  Very briefly, the subject matter of the lawsuit involves health insurance reimbursements, which vary depending on whether the health care provider is in the insurer's network.

But we don't care about that today.  We're interested in the court's take on post-new rules discovery disputes in this long-running litigation.  Basically, the court decided that both sides need to shape up.  "[T]he new amendments to the Federal Rules of Civil Procedure, effective December 1, 2015, refocus the court and the Parties on their respective obligations in discovery."  2016 WL 277721, at *1

The first issue was proportionality. The new rules, having emphasized this issue, "require this court to address issues of proportionality of discovery."  Id. at *2.  Litigation "mired in continuous disputes over the appropriateness of discovery served and the adequacy of responses" for some "six months . . . is not what the Federal Rules intended."  Id.  Proportionality did not permit the defendants' "omnibus requests," which were "improper on their face."  Id.  The court gave an example:

All documents relating to any meeting, discussion, or conversation (whether in person, by telephone, or via e-mail) between you and [a third-party defendant] in which a payor, including [defendants], is directly or indirectly mentioned or referenced.

Id.  The "definitions" accompanying this request only made things worse – "including, without limitation, any [long list], or any other person(s) acting or purporting to act with or on behalf of the foregoing."  This kind of scattershot approach doesn't cut it any longer.  "[T]here appears to be no attempt by Defendants to tailor the discovery request to issues arising from this case."  Id.

On the other hand, the plaintiffs' objections to this discovery were "no better."

Boilerplate objections are improper.  The responding party has the obligation to explain and support its objections.  As far as this court can tell, Plaintiffs fail to provide any specificity to their objections, including their objection that they have already produced responsive documents.  Rather, it appears that Plaintiffs' response simply points generally to the production of 1 terabyte of information − conservatively, millions of pages − without providing any type of guidance to Defendants as to where in the production such responsive documents are to be found.

Id. (footnote omitted).  The court held that, with respect to ESI (electronically stored information – if you haven't yet learned this acronym, learn it now), a party cannot rest on Fed. R. Civ. P. 34(b)(2)(E)(i), validating production of hard copies as "kept in the usual course of business."  Rather:

This distinction between a party's obligations with respect to ESI and traditional, hard copy documents permeates the Rules. . . .  ESI, and therefore, its treatment, is distinct from hard copy documents.  The newly amended Rule 37(e) also distinguishes ESI from other discoverable information.

2016 WL 277721, at *3 (citations omitted).  "[P]arties, by mutually agreeing to transmit discovery in ESI format, had chosen to have Rule 34(b)(2)(E)(ii) govern the production."  Id.  "[P]arties requesting ESI [are] able to organize it themselves − in their own way, to their own satisfactory level of thoroughness, and at their own expense.  Id. at *4 (citation and quotation marks omitted).

Here, however, the plaintiffs' vague "already produced" objections  were not sufficient.  The court ordered them to "provide additional information about where in the production Defendants may find certain information."  Id.  In so holding, the court took into account case-specific circumstances, here:

the volume of the document production to date, the asymmetry of information regarding the production between Plaintiffs . . ., the duration of time during which this case has been pending, and the fact that the Parties suggest that additional discovery must be conducted as to [new] claims.

Id.  The court would not require page-specific designations "for every Request for Production" because of the gross overbreadth of those requests.  Instead, proportionality required prioritization.  Defendants could "identify ten limited categories of documents" that had been subject to the boilerplate "already produced" objections.  Id.  For those ten categories only, "Plaintiffs must identify bates ranges of responsive documents."  Id.

This will ensure that Defendants prioritize their requests regarding location of responsive documents within the 1 terabyte of data, and will limit Plaintiffs' obligation to sort through the production on Defendants' behalf and correlate every Request for Production to specific bates ranges.

Id.

Moral of story:  The new rules require courts to confine discovery "within a proper scope," but producing parties must likewise facilitate that process with "objections [that] are appropriate" and not boilerplate.  Id.

Kissing Camels is thus the second case we're aware of that, since the amended rules became effective, has actually restricted discovery due to proportionality concerns.  See also State Farm Fire & Casualty Co. v. Gates, Shields & Ferguson, P.A., 2015 WL 8492030, at *4-5, 7 (Mag. D. Kans. Dec. 10, 2015) (contract action between insurer and law firm).