Placencia et al v. I-Flow Corporation et al

Filing 115

ORDER re Discovery Conference Call held 5/24/2012. Defendants are granted protective orders with respect to the depositions and related written discovery discussed on the record during the 5/24/2012 conference call with the Court. Signed by Judge David G Campbell on 5/24/2012. (NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gilbert S. Placencia and Theresa Placencia,
Plaintiffs,

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ORDER

v.

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No. CV10-2520 PHX DGC

I-Flow Corporation, a Delaware
corporation, et al.,

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Defendant.

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This is a diversity-jurisdiction product liability case brought under state law.

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Plaintiffs allege that Gilbert Placencia was injured by Defendants’ pain pump, which was

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installed in his shoulder after arthroscopic surgery.

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conference call with the parties on May 24, 2012. Following the call, Plaintiffs’ counsel

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provided the Court with copies of the Rule 30(b)(6) deposition notices that were

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addressed during the call. The Court will grant Defendants’ requests for a protective

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order.

The Court held a discovery

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A.

DOJ Investigation.

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Plaintiffs seek discovery of documents and other communications that have passed

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between Defendants and the Department of Justice (“DOJ”) pursuant to a subpoena

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served by DOJ in 2010, some five years after the events at issue in this case. Plaintiffs’

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counsel explained during the conference call that such discovery would be relevant for

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this reason: “if in any responses that [Defendants] might have given to the Department of

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Justice there is any information that goes to the veracity of [Defendants’] claims in

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defending the case, that is going to be clearly relevant in the action.” Plaintiffs’ counsel

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further stated that the discovery would provide “an opportunity to explore the credibility

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of [Defendants’] witnesses” by comparing their answers in deposition in this case to “any

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answers or responses that [Defendants] might have given to the Department of Justice.”

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When asked to describe the nature of the DOJ investigation, Plaintiffs’ counsel said “it is

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hard for us to say exactly what the nature and scope is because we haven’t been able to

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get any discovery from the defendants.”

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In other words, Plaintiffs wish to conduct discovery into communications in a DOJ

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investigation they cannot clearly describe because of the mere possibility that such

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communications might undermine Defendants’ credibility in this case in some undefined

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way. This is too speculative a basis for the discovery. Plaintiffs did not dispute defense

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counsel’s assertion during the conference call that Defendants have produced more than

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13,000 documents, provided more than 65 hours of company witness depositions, and

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responded to 1,331 written discovery requests in this and similar product liability cases

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over Defendants’ pain pumps. The Court will not permit further expensive discovery on

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the mere hope that something helpful might turn up. The Court finds that “the burden

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[and] expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P.

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26(b)(2)(C)(iii). The Court also finds that Plaintiffs have had ample opportunity to obtain

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relevant information through other discovery. See Fed. R. Civ. P. 26(b)(2)(C)(ii).

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B.

Subsequent Stock Sales.

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The Court reaches the same conclusion on Plaintiffs’ proposed inquiry into sales

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of stock by I-Flow executives that occurred more than one year after the pain pump at

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issue in this case was sold and used in Mr. Placencia’s surgery. When asked why such

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later stock sales might be relevant, Plaintiffs’ counsel stated that communications related

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to the sales “may very well discuss the company’s conduct at an earlier period of time.”

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Again, Plaintiffs speculate. There is no clear connection between the stock sales and the

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issues in this case, and the Court will not permit discovery into those sales on the mere
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possibility that something relevant might be found. The Court’s obligation to control

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“the extent of discovery,” and to do so in a way that achieves “the just, speedy, and

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inexpensive determination” of this case, compels the Court to conclude that speculative

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discovery – searching marginally relevant haystacks in hopes of finding a relevant needle

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or two – should not be permitted. See Fed. R. Civ. P. 1, 26(b)(2)(C).

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IT IS ORDERED that Defendants are granted protective orders with respect to

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the depositions and related written discovery discussed during the conference call with

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the Court on May 24, 2012.

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Dated this 24th day of May, 2012.

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