Law

Discovery was so much easier when we prosecuted federal criminal cases.  We got no discovery from the criminal defendant.  That is not to say we were not entitled to any; we simply did not get it.  Never mind.  We'll convict you, anyway.  In the other direction, we pretty much produced our whole file.  If there were things in the file that could not help the defendant, why not turn it over?  And if it could conceivably help the defendant, then the the SCOTUS Brady decision says we are required to turn it over.  So, aside from redacting personal information regarding our CI (that is, confidential informant - we weren't keen on disclosing home addresses to the cartels), we handed everything to the other side, usually with a smirk.

But civil discovery is an entirely different deal.   The cases are not the one-sided gimmes that they are in the criminal system, and discovery, courtesy of the ESI scourge, is extraordinarily burdensome.  Lines must be drawn.   The problem arises when courts adopt the attitude that anything goes and that overreaching plaintiffs deserve whatever they want.

Luckily, the court in Estes v. Lanx, Inc., 2015 U.S. Dist. LEXIS 166320 (N.D. Miss. Dec. 11, 2015), was not so crazily generous, even in this holiday gift-giving season.   The plaintiff sought records for a product that was not used, and the court said No.  To that result, we raise a mulled wine (heavy on the cinnamon, light on the cloves) in praise.

The plaintiff claimed injury from a particular pedicle screw.   The defendant provided materials relating to that pedicle screw, including the 510(k) file.  The defendant went even further, providing 510(k) submissions and customer complaints for all of its pedicle screws, not just for the one at issue in the case.  What's that saying about how no good deed goes unpunished?  Give plaintiffs an inch and they'll take a mile - including a mile of documents.  The plaintiff in Estes demanded all 510(k) submissions for all component parts in a system that was not used with the plaintiff.  The plaintiff also sought access to all of the defendant's complaint files. The court held that the discovery was not relevant and that production of the complaint files (which might add up to 800 - good grief, we are in cases involving thousands of such files) would be "overly burdensome and unlikely to yield relevant matter."

The Estes court's refusal to order more discovery was not in the least Grinchy.  Rather, it was something we seldom see in the discovery arena (though maybe the December 1, 2015 amendments might help matters): sane and correct.

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Posted By Steve McConnell to Drug and Device Law at 12/21/2015 08:55:00 AM

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