HOWMEDICA OSTEONICS CORP. et al v. DJO GLOBAL, INC. et al
Filing
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MINUTE ORDER for proceedings held before Magistrate Judge Tim A. Baker: Status Conference held on 6/14/2018 regarding a discovery dispute. See order for further details. Signed by Magistrate Judge Tim A. Baker. (ADH)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
HOWMEDICA OSTEONICS CORP. A
subsidiary of Stryker Corporation,
STRYKER CORPORATION A New Jersey
corporation,
Plaintiffs,
v.
DJO GLOBAL, INC. A California corporation,
JAKE EISTERHOLD An individual,
ERIC HUEBNER An individual,
JUSTIN DAVIS An individual,
Defendants.
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No. 1:17-cv-00938-SEB-TAB
ORDER ON JUNE 14, 2018, STATUS CONFERENCE
Parties appeared by counsel on June 14, 2018, for a telephonic status conference to
follow up on the Court’s May 24, 2018, discovery order [Filing No. 218] and to address text
messages that the Individual Defendants had redacted in their productions as “locker room
banter.” The parties discussed with the Court these redacted text messages and redacted pricing
and sales data, as well as production deadlines. The Court previously allowed the Individual
Defendants to select 10 representative text messages and Plaintiff Howmedica Osteonics Corp.
to blindly select an additional 10 for the Court to review in camera. The Court’s review
confirmed the Individual Defendants’ concerns that the text messages were replete with sexually
tinged banter, but also reflected the texts had some relevance to the issues in this case.
Accordingly, the Court scheduled the June 14 follow up conference to further discuss and
consider the potential overbreadth of the redactions, as well as what the Court called
irregularities in the parties’ productions.
With the benefit of this additional input and reflection, the Court finds that production of
the unredacted text messages is appropriate. As the Court noted in its earlier order, two of the
messages include potentially relevant information, and it appears that the Individual Defendants
may have redacted relevant texts simply because they contain embarrassing language. The
Individual Defendants admitted during the June 14 conference that some of the redacted
messages concern the Individual Defendants discussing the non-compete agreement at issue.
This supports the conclusion that the Individual Defendants redacted entire “locker room banter”
messages irrespective of the other contents of the message. In a case such as this, text messages
between the Individual Defendants that, at least to some degree, discuss the non-compete at issue
can be of critical value.
The Individual Defendants’ concerns about embarrassment, while legitimate, do not
persuade the Court that production is disproportionate to the case. The parties agree that the
confidentiality agreement is comprehensive. The agreement includes the ability to designate
documents “for attorneys’ eyes only.” Thus, the agreement supplies sufficient protection.
Further, the Court will not permit parties to use their embarrassment over their own sophomoric
comments to shield potentially relevant information. For these reasons, the Court orders the
Individual Defendants to produce the unredacted messages by July 16, 2018.
A letter to the Magistrate Judge from counsel for the Individual Defendants noted that at
the May 3 conference, counsel acknowledged that the other five categories of redacted text
messages would be covered by the confidentiality agreement. However, the letter states counsel
did not intend to agree to remove the redactions for those five categories. The inclusion of texts
from the other categories in the productions for in camera review is partially responsible for the
irregularities the Court noted. Nonetheless, as with the “locker room banter” texts, the parties’
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confidentiality agreement provides sufficient protection for these messages. Therefore, the Court
confirms its order for the Individual Defendants to produce the messages.
During the June 14 conference, the parties also brought up a lingering issue over
redactions to financial statements from Defendant DJO Global, Inc. HOC wants all redactions
removed on pricing and sales data. DJO agreed to produce the Individual Defendants’
commission statements, but denied further production on the basis that HOC can get the
information it needs from the commission statements. DJO asserts that the pricing and sales data
is especially sensitive, so they want to protect it.
Once again, the Court is not persuaded that the redactions are appropriate. As noted, the
confidentiality agreement expressly includes the ability to designate documents for attorneys’
eyes only precisely for this kind of sensitive information. HOC should not be forced to comb
commission statements to cobble together the information it needs when that information is
readily available in these redacted documents. Therefore, DJO is ordered to provide unredacted
versions by July 16, 2018.
Finally, Defendants request relief from the June 14, 2018, deadline set in the Court’s
earlier discovery order. [See Filing No. 218, at ECF p. 8.] Defendants request an additional 30
days due to the large quantity of ESI they were ordered to produce. The Court grants this request
and sets a July 16, 2018, deadline for the production to be complete. However, to minimize
interruption to the discovery schedule, Defendants shall turn over the documents as soon as they
are ready.
Date: 6/15/2018
_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
Distribution: All ECF-registered counsel of record by email.
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