Larkin Community Hospital v. Intuitive Surgical Inc.

Filing 113

DISCOVERY ORDER denying 106 Discovery Letter Brief.The attached order addresses the pending discovery disputes. (Beeler, Laurel) (Filed on 12/10/2022)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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LARKIN COMMUNITY HOSPITAL, et
al.,

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Plaintiffs,

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v.

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Case No. 21-cv-03825-VC (LB)
DISCOVERY ORDER
Re: ECF No. 106

INTUITIVE SURGICAL INC.,

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Defendant.

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This case is a class-action antitrust lawsuit by classes of hospitals and other providers who

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bought defendant Intuitive’s surgical-robot instruments and claim that Intuitive has violated the

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antitrust laws by preventing them from using third parties to repair the instruments. 1 Fact

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discovery has closed, and the parties had no discovery disputes. This dispute is between Intuitive

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and a third party, Alliance.
A third-party repair company called Restore, which sued Intuitive in the Northern District of

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Florida, hired Alliance to help it get FDA 510(k) clearance to extend the use limits for a particular

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Intuitive product by ten uses. In response to a third-party subpoena by Intuitive to Alliance in the

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Restore litigation, Alliance produced 1700 pages dated between 2019 and April 2021 with a

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Order – ECF No. 69. Citations refer to material in the Electronic Case File (ECF); pinpoint citations
are to the ECF-generated page numbers at the top of documents.

ORDER – No. 21-cv-03825-VC (LB)

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limitation that they could be used only in the Restore litigation. In re Alliance Healthcare

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Partners, LLC, No. MC-22-0033-PHX-DWL, 2022 WL 16527952, at *2, *7 (D. Ariz. Oct. 28,

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2022) (addressing dispute and ultimately transferring this third-party subpoena to the Northern

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District of California). Eventually Alliance agreed to produce them in this litigation, which was

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efficient and practical: the complaint here says that the plaintiffs would have purchased

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remanufactured EndoWrists from Restore. 2
The dispute centers on the sufficiency of Alliance’s second production from April 2021 to July

United States District Court
Northern District of California

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2022. Essentially, the dispute involves a second search. In the letter brief, Intuitive asks for (1)

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Alliance’s documents related to the 510(k) application (RFPs No. 5–9), (2) the pricing and costs of

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remanufactured EndoWrists (RFP No. 2), and (3) Alliance’s relationship with Restore (RFP Nos. 4,

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10). 3 Alliance characterizes the dispute somewhat differently: it addresses 1 and 3 in its

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characterization of the sufficiency of its production, it does not address 2, and it said at the hearing

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that Intuitive’s dispute is limited to the three issues that it raised in its motion to compel in the

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District of Arizona. 4 To gain some clarity, the court did read the motion, opposition, and reply filed

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in the District of Arizona (even though the letter-brief process here was meant as a replacement of,

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and not a supplement to, discovery motions practice, whether here or elsewhere).
Federal Rules of Civil Procedure 45(d) and 26 guide the court’s enforcement of non-party

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subpoenas. Under Rule 26(b)(1), a party may obtain discovery “regarding any nonprivileged

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matter that is relevant to any party's claim or defense and proportional to the needs of the case,

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considering the importance of the issues at stake in the action, the amount in controversy, the

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parties’ relative access to relevant information, the parties’ resources, the importance of the

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discovery in resolving the issues, and whether the burden or expense of the proposed discovery

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outweighs its likely benefit.” The scope of discovery is the same under Rule 45. Fed. R. Civ. P. 45

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advisory committee note to 1970 amendment (“the scope of discovery through a subpoena is the

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Am. Compl. – ECF No. 74, ¶¶ 122, 156–57. Letter Br. – ECF No. 106 at 1.

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Letter Br. – ECF No. 106 at 2.

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Id. at 3, 5.

ORDER – No. 21-cv-03825-VC (LB)

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same as that applicable to ... other discovery rules”); GreenCycle Paint, Inc. v. PaintCare, Inc.,

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No. 15-cv-04059-MEJ, 2018 WL 1399865, at *2 (N.D. Cal. Mar. 19, 2018).
“Non-parties that are unrelated to the litigants should not be burdened in discovery to the same

United States District Court
Northern District of California

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extent as litigants, and requests to them must be drawn narrowly to meet specific needs for

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information. Updateme Inc. v. Axel Springer SE, No. 17-cv-05054-SI (LB), 2018 WL 5734670, at

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*3 (N.D. Cal. Oct. 31, 2018) (collecting cases). Additionally, there are issues here involving a

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competing lawsuit by competitors in the robot-repair industry, which is something to consider in

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assessing Intuitive’s request and the parties’ positions. Cf. Waymo LLC v. Uber Techs., Inc., No.

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17-cv-00939-WHA (JSC), 2017 WL 2929439, at *3 (N.D. Cal. July 7, 2017) (finding it significant

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that discovery dispute “involve[d] a Rule 45 subpoena between direct competitors operating in the

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same industry” in determining whether to quash request); In re Worlds of Wonder Sec. Litig., 147

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F.R.D. 214, 216 (N.D. Cal. 1992) (denying motion to compel discovery from litigating party

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where party’s confidential trade secrets would be disclosed to its competitors, who were serving as

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expert witnesses). Generally, the party moving to quash bears the burden of persuasion, but the

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party “issuing the subpoena must demonstrate that the information is relevant and material to the

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allegations and claims at issue in the proceedings.” GreenCycle, 2018 WL 1399865, at *3.
Intuitive’s main concern is that — for the 510(k) application — it wants Alliance to use its

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search terms because Alliance’s production was made by running the search term K210478 (the

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FDA-assigned name for the 510(k) application) across the emails of two Alliance personnel. It

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proposes a search with more terms. 5 Alliance responded that that its search was sufficient to

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produce its communications with the FDA. It says that it is a small company and suggests that

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Intuitive is seeking the information to use in the Restore trial, which begins on February 6, 2023.

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At the December 8, 2022 hearing on the dispute, it said that Intuitive had asked to reopen

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discovery there, and the court there said no. Alliance also is concerned that the protective order

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here is different than the protective order in the Florida case and does not want there to be issues

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Id. at 2.

ORDER – No. 21-cv-03825-VC (LB)

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United States District Court
Northern District of California

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with the “Outside Counsel Only” designations. 6 At the hearing, it affirmed that its search was

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sufficient to identify the relevant communications with the FDA, it has produced them, and that

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the proposed terms would yield an unhelpfully large and irrelevant amount of information.

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The court accepts Alliance’s representation that its search is sufficient to identify all

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communications with the FDA. Given that this is a second search after a sufficient production

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through April 2021, whatever relevance there is for responsive information to a search with more

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search terms does not outweigh the burden that would result from Alliance’s having to review a

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large production for privilege and work product. (It is apparent from the court’s review of the

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proposed search terms and the RFPs that the responsive hits would be large.) The core information

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is the correspondence with the FDA. Limiting the post April 2021 production to that universe is

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proportional to the needs of the litigation. Intuitive’s request for information about Alliance’s

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relationship with Restore (RFP Nos. 4, 10) is cabined by this ruling: this second production is

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sufficient. Given the Rule 45 standard and the context of the dispute, the court does not order more

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on this record.
Another issue is use in the Florida litigation and the protective order. Discovery in the other

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case is closed. The discovery here cannot be used there absent an order by that court. The

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protective order here cannot be used as an end-run around the protective order in the Florida case.
Another issue may be the sufficiency of Alliance’s production of testing data. On this record

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and argument, the production is sufficient.
The final issue is Intuitive’s request for documents and communications relating to the pricing

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and costs of remanufactured EndoWrists (RFP No. 2). The parties did not address the dispute

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squarely. On this record, considering the RFP, and given the production of information through

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April 2021, the court cannot see how more discovery is proportional to the needs of the case.

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Given that the parties do not frame the issues in the same way in the letter brief, this is the

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court’s best effort at resolving the dispute. It probably would have been a more fruitful exercise if

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the parties had talked again before filing the letter brief: they last talked by telephone on July 15

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Id. at 3–5.

ORDER – No. 21-cv-03825-VC (LB)

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and emailed on July 22 and 27, and possibly Alliance produced information after that (although

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the court is not sure on this last point). 7 If the court has overlooked something fairly raised in the

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underlying motion to compel and reiterated in the letter brief, then the parties can raise it in a new

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letter brief. But they need to talk first, preferably by video, and frame the dispute issue by issue.

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This looks like a brief where the parties each pasted in their positions based on the underlying

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filings in Arizona, and they did not really respond directly to each other. Discovery disputes need

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to be addressed issue by issue. It was tough going here.

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IT IS SO ORDERED.

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Dated: December 10, 2022

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______________________________________
LAUREL BEELER
United States Magistrate Judge

United States District Court
Northern District of California

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Id. at 1.

ORDER – No. 21-cv-03825-VC (LB)

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