Estate of Arturo Giron Alvarez et al v. The John Hopkins University et al

Filing 293

MEMORANDUM OPINION. Signed by Magistrate Judge Beth P. Gesner on 5/21/2019. (heps, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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ESTATE OF ARTURO GIRON ALVAREZ,
et al.,

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Plaintiffs,

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v.

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Civil No.: TDC-15-950

THE JOHNS HOPKINS UNIVERSITY, et al., *
Defendants.
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MEMORANDUM OPINION
Currently pending are plaintiffs’ Motion to Compel Defendants to Respond to Requests
for Production of Documents, Interrogatories, Requests for Admissions, Notice of Designee
Depositions, and Requests for Entry and Inspection of Defendants’ Archives (“Plaintiffs’ Motion
to Compel”) (ECF No. 252), defendants’ Joint Brief in Opposition to Plaintiffs’ Motion to
Compel (“Defendants’ Joint Opposition”) (ECF No. 264), the Johns Hopkins defendants’
Supplemental Brief in Opposition to Plaintiffs’ Motion to Compel (“Johns Hopkins’
Opposition”) (ECF No. 264-1), The Rockefeller Foundation’s Separate Memorandum of Law in
Opposition to Plaintiffs’ Motion to Compel (“TRF’s Opposition”) (ECF No. 264-2), BristolMyers Squibb Company’s Supplemental Brief in Opposition to Plaintiffs’ Motion to Compel
(“BMS’ Opposition”) (ECF No. 264-3), and plaintiffs’ Reply to Defendants’ Opposition to
Motion to Compel Discovery (“Plaintiffs’ Reply”) (ECF No. 274). Also pending are defendants’
Motion to Compel (ECF No. 253), plaintiffs’ Response to Defendants’ Motion to Compel
(“Plaintiffs’ Opposition”) (ECF No. 265), and defendants’ Reply in Support of Defendants’
Motion to Compel (“Defendants’ Reply”) (ECF No. 273).

For the reasons stated below,

plaintiffs’ Motion to Compel is granted in part and denied in part, and defendants’ Motion to
Compel is granted in part and denied in part.
I.

Plaintiffs’ Motion to Compel
a.

Archive Access and Rule 30(b)(6) Depositions

Plaintiffs request that the court compel defendants to allow plaintiffs to enter and inspect
the archives of the Johns Hopkins defendants and The Rockefeller Foundation (“TRF”) and
compel all defendants to produce witnesses to testify about the matters set forth in plaintiffs’
Rule 30(b)(6) deposition notices. (ECF No. 252 at 12). Plaintiffs state that they first made
informal requests to access these archives in May of 2018 and noted depositions pursuant to Fed.
R. Civ. P. 30(b)(6) seeking information about the organization of the archives so that they could
serve proper and tailored Rule 34 Notices to Enter and Inspect. (ECF No. 252 at 8). Plaintiffs
state that they were unable to reach an agreement with defendants, and re-noted these depositions
on February 1, 2019, seeking archival information as well as additional information regarding
the activities of defendants’ agents in the studies, including “employment practices,
reimbursement practices, remuneration, obtainment of grant money, and other tenants of
employment for doctors and academics at the time the studies were conceived and performed.”
(ECF No. 252 at 9). That day, they also filed formal Requests for Entry to the archives of TRF
and the Johns Hopkins defendants. Id.
Plaintiffs state that no witnesses appeared for the 30(b)(6) depositions, and defendants
have only recently agreed to allow plaintiffs access to their archives, subject to conditions which
are unacceptable to plaintiffs. (ECF No. 252 at 9–10). Specifically, plaintiffs state, TRF has
offered plaintiffs the right to inspect some, but not all, of its archives, if plaintiffs agreed to
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waive their right to take 30(b)(6) depositions. (ECF No. 252 at 9). Similarly, plaintiffs state, the
Johns Hopkins defendants have offered to allow plaintiffs access to some, but not all, of its
archives, upon plaintiffs’ agreement to conditions including “accomplishing the review in 2
weeks, waiving their 30(b)(6) requests, waiving other rights to discovery, and following a threepage protocol for inspection dictated by Hopkins (including the presence of a ‘babysitter,’
limitations on copying of documents, and other self-serving conditions that would be nearly
impossible to meet).” (ECF No. 252 at 9–10).
Plaintiffs argue that these “partial and conditional offers of [the Johns Hopkins
defendants] and [TRF] are not contemplated by the Federal Rules and are not acceptable to
[p]laintiffs . . . [p]laintiffs should not have to waive the rights they have under the Federal Rules
to utilize other discovery mechanisms in exchange for access to archives . . . [and] [p]laintiffs
have the right to take corporate designee depositions noted almost a year ago about the
organization of [d]efendants’ archives, and about [d]efendants’ employees’ activities connected
with the experiments at issue.” (ECF No. 252 at 10). Plaintiffs further argue that direct access to
these archives is essential, as “[a]ll of the individuals who played a role in the Experiments are
now deceased . . . [t]here is no one to depose and [p]laintiffs must prove their case through
documentary evidence.” Id.

They further argue that “[i]t is highly likely that the archives of

these institutions contain documentary evidence that will support [p]laintiffs’ claims” and argue
that “it is apparent that [d]efendants have not performed a thorough search of their own archives
for documents responsive to [p]laintiffs’ discovery requests.” (ECF No. 252 at 10, 12).
As to plaintiffs’ requests for Rule 30(b)(6) depositions, defendants argue that these
requests “are unnecessary and beyond the scope of what is required under the Federal Rules and
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the guidance of this [c]ourt.” (ECF No. 264 at 6). Defendants note that plaintiffs originally
agreed to hold these depositions in abeyance while defendants answered questions about their
archives. Id. Defendants state that they provided these answers in July and August of 2018, and
that plaintiffs never followed up or raised any deficiencies as to these answers before re-noting
new, broader depositions. (ECF No. 264 at 7). Defendants argue that these notices should be
quashed. Id. First, defendants state that “[t]o the extent that plaintiffs intend to probe the
sufficiency of defendants’ earlier document collections, such ‘discovery about discovery’ is
frequently not permitted.” Id. (citing Fish v. Air & Liquid Sys. Corp., Civil No. GLR-16-496,
2017 WL 697663, at *6 (D. Md. Feb. 21, 2017) (“‘Discovery on discovery’ is not an appropriate
topic of discovery and numerous courts have disallowed such discovery.”) To the extent that
plaintiffs want information about archival organization, defendants state that plaintiffs have
already received this information via less burdensome means. (ECF No. 264 at 7–8). With
respect to the new topics raised in plaintiffs’ February 1, 2019 notices, defendants argue that
these inquiries are “ridiculously overbroad,” go “well beyond what the [c]ourt contemplated
when it extended the discovery deadline,” and that some inquiries are “wholly irrelevant to the
issues in this lawsuit.” (ECF No. 264 at 8). Finally, defendants argue that the information
sought is not “reasonably available” to defendants. Id. Defendants note that the individuals who
might have possessed such information are deceased and argue that “[t]he only relevant
information would come from the documents that defendants have already produced,” and,
accordingly, “the depositions are completely unnecessary.” (ECF No. 264 at 8–9).
As to plaintiffs’ request for archival access, although defendants argue that “[t]he Federal
Rules do not entitle plaintiffs access to defendants’ archives for the purpose of re-doing

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defendants’ discovery efforts,” the Johns Hopkins defendants and TRF have agreed to allow
plaintiffs access to their archives, subject to the conditions set forth in their respective protocols,
“solely as an accommodation to plaintiffs.” (ECF No. 264 at 9–10).
The Johns Hopkins defendants state that they have offered plaintiffs access to the Alan
Mason Chesney Medical Archives of the Johns Hopkins Medical Institutions (“Medical
Archives”)1 “on terms consistent with the customary orderly and careful review and processing
of archival materials.” (ECF No. 264-1 at 2). Defendants state that plaintiffs “summarily
rejected this offer without even responding to the Johns Hopkins [d]efendants directly,” and
instead raised their concerns about the Johns Hopkins defendants’ conditions to the court. (ECF
No. 264-1 at 2–3). Specifically, the Johns Hopkins defendants state that they sent plaintiffs
“1,879 pages of indices to review and identify folders or boxes of documents that they would
like to inspect.” Id. They further state that, within two weeks of receipt of the list of folders or
boxes that plaintiffs would like to inspect, they would make those documents available for
plaintiffs, and plaintiffs would have two weeks to review the requested material.2 (ECF No. 2641 at 3). The Johns Hopkins defendants also asked that an attorney be present during plaintiffs’
review at the archives to “liaise between plaintiffs and the archivists,” comply with Maryland
Attorneys’ Rule of Professional Conduct 19-304.23, and ensure that there was no waiver of the

While plaintiffs also requested access to the “William H. Welch Medical Library and the Library of the Institute of
the History of Medicine,” the “Welch Library at the School of Public Health,” and the “Abraham M. Lilienfeld
Library Hampton House,” (ECF No. 264-9 at 5), the Johns Hopkins defendants state that these locations “do not
hold the kind of primary source material that would be responsive to plaintiffs’ requests.” (ECF No. 264-1 at 4).
Further, the Johns Hopkins defendants state, the Welch Library and the Lilienfeld Library “simply house reading
rooms where no materials of any kind are held.” Id. (emphasis removed).
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At the time, this review was to be completed by April 30, 2019, as the undergraduates who work at the Medical
Archives and are primarily responsible for retrieving and processing materials requested by patrons would be
entering their exams period after April 30. (ECF No. 264-1 at 3).
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Maryland Attorneys’ Rule of Professional Conduct 19-304.2 states that “in representing a client, an attorney shall
not communicate about the subject of the representation with a person who the attorney knows is represented in the
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attorney-client privilege or work-product doctrine. (ECF No. 264-1 at 4–5). Additionally, the
Johns Hopkins defendants require that any copying be done by the Johns Hopkins archivists’
preferred vendor, which they state is necessary to preserve the physical integrity of the papers in
the archives. (ECF No. 264-1 at 5). Finally, the Johns Hopkins defendants conditioned access to
their archives on plaintiffs’ withdrawal of their Rule 30(b)(6) deposition notices. Id. The Johns
Hopkins defendants argue that they are merely trying to come to a compromise and accomplish
the most efficient path for resolution of the outstanding discovery disputes by allowing plaintiffs
access to the archives, which would likely moot their need for such depositions. (ECF No. 264-1
at 6).
Similarly, TRF offered plaintiffs access to the Rockefeller Archive Center (“RAC”), “an
independent organization founded in 1974 that houses numerous archival collections, including
the Rockefeller Foundation Archives.” (ECF No. 264-2 at 3). TRF notes that it “maintains
ownership and control of the documents within its own archival collection,” but it “does not
control the RAC, its physical facilities, or its staff, and has no possession, custody or control of
the documents in the RAC’s other archival collections.” Id. Accordingly, TRF offered access to
its archival records upon terms “developed in collaboration with RAC staff to fashion an orderly
process that would allow plaintiffs’ counsel to view any documents they requested (within
reason, with disputes as to scope to be resolved by the [c]ourt) without disrupting the RAC’s
regular activities.” (ECF No. 264-2 at 3–4). TRF also notes that “[t]hese terms are nearly
identical to the rules applicable to any other researcher who visits the RAC.” (ECF No. 264-2 at
matter by another attorney unless the attorney has the consent of the other attorney or is authorized by law or court
order to do so. If the person represented by another attorney is an organization, the prohibition extends to each of
the organization's (1) current officers, directors, and managing agents and (2) current agents or employees who
supervise, direct, or regularly communicate with the organization's attorneys concerning the matter or whose acts or
omissions in the matter may bind the organization for civil or criminal liability.”

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4). Specifically, TRF states that plaintiffs were invited to use a publicly available online finding
tool to identify records they wished to review, which would then be retrieved and delivered to
plaintiffs by trained archivists. Id. Although plaintiffs would not be permitted to remove
documents from the premises, the RAC would arrange for photocopying of any requested pages.
Id. As to TRF’s condition that plaintiffs withdraw their Rule 30(b)(6) notice, TRF stated that
they believed this was reasonable in light of TRF’s prior document production and the facts that
“(i) TRF provided detailed written information in response to plaintiffs’ questions about the
policies and procedures of the RAC and the volume of files potentially responsive to plaintiffs’
requests; (ii) TRF directed plaintiffs to a comprehensive online finding tool for its archival
records; and (iii) pursuant to TRF’s offer, plaintiffs would be able to review virtually any TRF
records for which there is a good-faith argument as to relevance.” Id. TRF notes that plaintiffs
did not respond to their invitations. (ECF No. 264-2 at 5).
Given that the Johns Hopkins defendants and TRF have offered to allow plaintiffs access
to their archives, it appears that there is no dispute remaining between the parties, and plaintiffs’
Motion to Compel is moot as to this issue. Plaintiffs’ access to these archives, however, is
subject to the reasonable conditions set forth by the Johns Hopkins defendants and TRF. After
reviewing the pleadings, I find that all conditions requested by the Johns Hopkins defendants4
and TRF are reasonable, with the exception of the condition that plaintiffs withdraw their Rule
30(b)(6) deposition notices. Although I acknowledge defendants’ efforts to avoid the necessity
of such depositions, I cannot say at this time that there are no areas of inquiry that may be
relevant to plaintiffs’ case. As currently drafted, however, Plaintiffs’ Rule 30(b)(6) deposition

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I note that the Johns Hopkins defendants’ prior deadline of April 30, 2019 for plaintiffs to complete their archival
visits has passed and understand that the parties will need to set a mutually agreeable schedule for these visits.

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notices (ECF Nos. 264-6, 264-5, 264-6), are clearly overly broad, particularly in view of the
upcoming archive visits and defendants’ prior document production. Accordingly, plaintiffs’
motion to compel compliance with the outstanding Rule 30(b)(6) notices is denied. Plaintiffs
shall first conduct their archive visits, and, in the event that plaintiffs believe that there remain
narrowed areas of inquiry that need to be addressed via Rule 30(b)(6) depositions, they may
revise and reissue their Rule 30(b)(6) deposition notices. I trust that plaintiffs will be judicious
in limiting the scope of these deposition notices, given the extensive information already
provided by defendants and plaintiffs’ upcoming archive visits, both of which should result in a
significantly narrowed scope for Rule 30(b)(6) depositions. After plaintiffs serve these narrowed
notices, the parties shall use my informal discovery dispute procedure (ECF No. 168) if disputes
remain.
Plaintiffs’ First Set of Requests for Production of Documents and Things

b.

Plaintiffs ask the court to compel defendants to supplement their responses to plaintiffs’
First Set of Requests for Production of Documents and Things (ECF Nos. 264-22, 283-1, 283-2).
(ECF No. 252 at 2). Plaintiffs raise several complaints as to all defendants’ responses to these
requests.
i.

Defendants’ Limited Scope of Document Production

Plaintiffs argue that defendants improperly defined the scope of plaintiffs’ discovery
requests and placed unreasonable restrictions on their document production. (ECF No. 252 at
13). First, plaintiffs argue that the Johns Hopkins defendants and TRF unilaterally defined the
term “Guatemala Experiments” to apply solely to “‘U.S. Government sponsored research,’
thereby excluding [their] own participation from [their] self-imposed definition.” (ECF No. 252
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at 13, 20). In response, the Johns Hopkins defendants note that, “[c]ontrary to plaintiffs’
assertion, the Johns Hopkins [d]efendants did not limit their review or productions only to ‘U.S.
Government sponsored research,’” and corrected that misconception in a letter to plaintiffs dated
July 26, 2018. (ECF No. 264 at 13 n.8 (citing ECF No. 264-18)). Similarly, TRF states that it
did not use the definition “U.S. Government sponsored research” to exclude otherwise
responsive documents relating to TRF’s alleged involvement in those studies, but rather solely
used that definition “to identify the studies in question by tracking the description used by the
Presidential Commission.” (ECF No. 264 at 15–16 (citing Presidential Commission for the
Study of Bioethical Issues (“PCSBI”) Report at 2 (describing the experiments as “medical
research supported by the United States and conducted in Guatemala between 1946 and 1948”)).
Given these representations5 by the Johns Hopkins defendants and TRF, it appears that plaintiffs’
claim that defendants’ document production was limited in this regard is without merit, and
plaintiffs’ Motion to Compel is denied as to this issue.
Next, plaintiffs argue that the Johns Hopkins defendants and TRF improperly limited the
scope of production to documents between the years 1946 and 1948. (ECF No. 252 at 13, 20).
Plaintiffs argue, however, that “planning for the Guatemala experiments began in 1945, and the
last known follow-up testing was done in 1957.” (ECF No. 252 at 13). Plaintiffs also request
information from the 1930s and early 1940s relating to defendants’ involvement in the Tuskegee
and Terre Haute syphilis studies, but this information will be addressed separately after I receive
supplemental briefing from the parties. (ECF No. 283). As a result of these restrictions,
plaintiffs argue, “information concerning the activities of [defendants’] researchers collaborating
on Tuskegee, Terre Haute, and Guatemala; the funding and control of the Guatemala
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I note that plaintiffs did not object or otherwise respond to these representations in their Reply.

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experiments (done prior to 1946), the development of the Guatemala protocol (done prior to
1946), the motivation for Guatemala (spurned by events before 1946), the issue of standard of
care for obtaining consent in the Guatemala project (standardized before 1946), follow-up after
the Guatemala experiments (lasting well into the 1950s), and many other issues, was shielded
from discovery without rationale.” (ECF No. 252 at 13).
As to the time restrictions, defendants argue that they “limited production of documents
in response to certain requests to documents from within [1946–1948] because that is the period
during which plaintiffs allege the Guatemala Experiments occurred.”6 (ECF No. 264 at 13
(citing ECF No. 127 at ¶ 408 (“According to the records currently available, at least 1,308
psychiatric patients, prison inmates, and soldiers were intentional [sic] infected in the Guatemala
Experiments from 1946 to 1948.”)) The Johns Hopkins defendants also argue that “plaintiffs do
not articulate a valid basis for why the Johns Hopkins [d]efendants would have any documents
related to experimentation that occurred in the 1950s, except that Dr. Cutler was a student at
Johns Hopkins for one year during that period,” and note that they “have already produced all
documents in their possession related to Dr. Cutler’s studies at their institutions, including his
application.”

Id.

In sum, the Johns Hopkins defendants argue, “[p]laintiffs’ request for

documents beyond the 1946–1948 time period is thus not proportional to the needs of the case,
and there is no justification to impose on defendants the burden of reviewing and producing
those documents.” (ECF No. 264 at 14). Nonetheless, they state that they have offered for
plaintiffs to identify materials at the Medical Archives and that they will make these documents

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The Johns Hopkins defendants do note that they produced documents from beyond this time range in response to
some of plaintiffs’ requests, such as the complete biographical files of Drs. Moore, Turner, Eagle, and Reed. (ECF
No. 264 at 14 n.11).

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available for plaintiffs’ review, “consistent with the relevance and burden objections that they
have made and subject to any rulings by this [c]ourt.” Id.
TRF argues that, unlike the Johns Hopkins defendants, it did not limit its production to
the years 1946–1948. (ECF No. 264 at 15). TRF notes that, in response to various requests with
no time limit, it produced responsive records between 1945 and 1950 or 1940 and 1950. Id.
TRF further argues that its offer for plaintiffs to conduct their own search for relevant documents
by inspecting its archives moots plaintiffs’ critiques of TRF’s earlier production. (ECF No. 264
at 16).
In their Reply, plaintiffs argue that “[t]here is no justification for the Hopkins
[d]efendants to unilaterally refuse to produce documents before 1946 and after 1948,” and note
that “no other [d]efendant has made such a limitation.” (ECF No. 274 at 6). Plaintiffs further
argue that the experiments “continued in the form of tissue sampling and analysis until 1957,
meaning that documents directly related to the experiments likely exist well beyond even 1957.”
(ECF No. 274 at 6–7). Accordingly, plaintiffs argue that the Johns Hopkins defendants’ time
limitation “is self-serving, illogical, and unrelated to the actual facts of this case,” and should be
expanded. (ECF No. 274 at 7).
Plaintiffs’ objection regarding defendants’ limited time frame is well-founded. At the
outset, any documents related to defendants’ involvement in the Guatemala experiments are
relevant, including any planning done prior to the start of the actual experimentation, as well as
any follow-up testing performed after the conclusion of the experiments. Accordingly, it is
proper for defendants to produce documents responsive to plaintiffs’ requests for the time frame
between the years 1945 (when plaintiffs allege that planning for the Guatemala experiments first
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began) and 1957 (when plaintiffs allege that the last known follow-up testing was completed).
While the Johns Hopkins defendants briefly argue that it is unduly burdensome and not
proportional to the needs of the case to require defendants to produce documents beyond the
1946–1948 time range (ECF No. 264 at 14), they have failed to articulate any particular burden.
It is also noteworthy that the other defendants, TRF and BMS, did not apply such a narrow span
of time when answering similar document requests. (ECF Nos. 264 at 15, 264-3 at 4). Finally,
while defendants have offered to allow plaintiffs access to their archives, this does not excuse
defendants’ obligation to fully respond to all properly issued discovery requests. Accordingly,
defendants7 are ordered to supplement their responses to plaintiffs’ First Set of Requests for
Production of Documents and Things and produce documents responsive to plaintiffs’ requests
for the timeframe between 1945 and 1957 within 21 days of this order.8
ii.

Defendants’ Deficient Document Production

Plaintiffs also argue that defendants have refused to produce documents that plaintiffs
“know are in [defendants’] possession and control, and directly responsive to [p]laintiffs’
requests.” (ECF No. 252 at 13). As to the Johns Hopkins defendants, plaintiffs state that, “based
on what they have obtained from third party sources, including the U.S. Government, the notes
of their own expert, and from their review of the recently-produced indexes and indexes that are
publicly available regarding Hopkins’ archives, it is apparent to [p]laintiffs that Hopkins has
either performed a very limited review of documents in its possession, has produced documents

It is unclear whether plaintiffs raise these same objections to BMS’ production, as plaintiffs merely state that they
“will not waste time repeating the arguments made above.” (ECF No. 252 at 22). Nonetheless, it does appear that
BMS’ production was limited, at times, to the years 1945 to 1955. (ECF No. 264-3 at 4). Accordingly, BMS shall
also supplement its responses if it possesses relevant documents for the entire period from 1945 to 1957.
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If a party believes that it will not be able to comply with any deadline included in this order, the parties should
mutually agree upon an appropriate schedule for production and inform the court.
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subject to inappropriate and self-imposed restrictions on what is relevant, or is purposefully
withholding documents.” (ECF No. 252 at 19). Plaintiffs similarly argue that TRF has failed to
produce documents responsive to discovery requests seeking information regarding activities of
key employees at issue in the case, which plaintiffs argue “are calculated towards uncovering
information that supports their theory that Dr. Soper, Dr. Parran, and other agents of The
Rockefeller Foundation are directly liable and liable for aiding and abetting on account of its
employees’ assistance with designing, funding, and providing personnel to support the
experiments.” (ECF No. 252 at 21). Plaintiffs provide non-exhaustive lists of materials that they
believe the Johns Hopkins defendants and TRF have in their possession and control and ask that
these defendants be compelled to produce these documents, along with a document index for the
materials already produced, and any additional ones to be provided. (ECF No. 252 at 15–22).
Similarly, plaintiffs argue that, based upon a review of documents produced by BMS and
what plaintiffs understand BMS to possess, they have a good faith basis to believe that BMS
withheld documents regarding 1) penicillin used during the relevant time period; 2) Dr. Delmas
Kitchen, a BMS employee who met and corresponded with Dr. Soper, the Lead Investigator of
the Experiments; 3) Dr. Shannon, a BMS researcher who “who was involved in conducting
malaria research on human test subjects in Guatemala at the same time as the Guatemala syphilis
experiments at issue in this case, and who was updated and informed about the Guatemala
experiments by others at the time;” 4) BMS employee Dr. Rake, who researched syphilis
prophylaxis at the time of the Experiments; and 5) BMS employee Dr. Oskar Wintersteiner,
“who sat on the Antibiotic Study Section, which allocated the use of penicillin at the time of the
Guatemala experiments.”

(ECF No. 252 at 22).

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Plaintiffs also ask the court to “compel

production of these documents and others that have been referenced in previous correspondence
between counsel relating to this discovery dispute, as well as a proper document index.” (ECF
No. 252 at 23).
In response, the Johns Hopkins defendants argue that the list provided by plaintiffs of
potentially responsive documents is misleading, as they have already produced some of these
items, and many are facially irrelevant. (ECF No. 264 at 13–14). As to plaintiffs’ request that a
document index be produced, the Johns Hopkins defendants argue that “[t]he Federal Rules do
not require that an index be produced, and defendants’ cover letters have indicated to which
request the productions are responsive.” (ECF No. 264 at 11 n.6). TRF notes that it first
provided responses and objections to these requests on June 11, 2018, and that, to date, plaintiffs
have failed to confer about these responses and objections. (ECF No. 264 at 14–15). TRF
further argues that plaintiffs’ critiques of its production are without merit, and that it has
repeatedly demonstrated to plaintiffs that it has complied with all discovery obligations. (ECF
No. 264 at 15–16). TRF also notes that, like the Johns Hopkins defendants, it assisted plaintiffs
in identifying what documents are responsive to each request by letters dated September 6 and
11, October 8, and November 19, 2018. (ECF No. 264 at 15).
BMS similarly notes that plaintiffs failed to raise these concerns in accordance with the
court’s order by January 4, 2019, and instead waited until after the close of fact discovery to
address these issues. (ECF No. 264 at 16–17). BMS further argues that plaintiffs’ concerns are
unfounded. Specifically, BMS argues that plaintiffs have offered no support for their assertion
that BMS has withheld documents, and that BMS cannot produce documents that do not exist.
(ECF No. 264-3 at 2). BMS notes that plaintiffs’ own expert, Dr. Reverby, testified that “despite
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researching the issues, she knew of no basis for concluding that BMS was involved in
conducting the Guatemala Experiments.” (ECF No. 264-3 at 3).

BMS further notes that

Professor Lombardo, who served as a senior advisor to the Presidential Commission for the
Study of Bioethical Issues that studied the Guatemala experiments, similarly “testified that
despite affirmatively looking for the involvement of a pharmaceutical company, he found none.”
Id. BMS also represents that it has provided documents related to Dr. Wintersteiner and its
penicillin during the relevant time period. (ECF No. 264-3 at 4).
While both the Johns Hopkins defendants and TRF argue generally that they have fully
complied with their discovery obligations in responding to plaintiffs’ document requests, the
parties have not provided me with sufficient information to make this determination.
Specifically, when addressing plaintiffs’ non-exhaustive list of requested documents, the Johns
Hopkins defendants merely state that they have produced some and that others are irrelevant
(ECF No. 264 at 14), while TRF fails to address the list of requested documents altogether.
Similarly, BMS has stated that it produced documents relating to Dr. Wintersteiner and BMS’
penicillin during the relevant time frame (ECF No. 264-3 at 4), but for the remaining five
categories, merely that “it is unclear what the alleged deficiencies are,” and that “BMS cannot
produce documents that do not exist.” (ECF No. 264-3 at 2, 4). Accordingly, within 21 days of
this order, defendants are directed to either: 1) produce plaintiffs’ requested documents, identify
those documents that it has already produced to plaintiffs, and identify those documents that it is
withholding on the basis of irrelevance; or 2) certify that defendants do not possess the requested
documents. If disputes remain, the parties shall use my informal discovery dispute procedure
(ECF No. 168) to bring any issues to my attention. Defendants are not, however, required to
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produce a document index for any document produced or to be produced, as long as they
otherwise comply with Rule 34(b)(E)(i).9
c.

Plaintiffs’ Second Set of Requests for Production of Documents and Things,
Plaintiffs’ First Set of Requests to Admit, and Plaintiffs’ Corrected
Interrogatories

Finally, plaintiffs ask the court to compel defendants to respond to its Second Set of
Requests for Production of Documents and Things, First Set of Requests to Admit, and
Corrected Interrogatories, served on all defendants on or about February 1, 2019. (ECF No. 252
at 23). Plaintiffs state that these requests were properly served in accordance with the court’s
deadline to serve additional discovery requests, but that defendants have not responded to any of
these requests. Id.
In response, defendants preliminarily argue that plaintiffs are improperly attempting to
“re-do” the entire discovery process at the last possible moment, despite the fact that the
discovery period began on February 6, 2018, and the discovery deadline has already been
extended from November 26, 2018, to March 15, 2019. (ECF No. 264 at 17–18). Defendants
state that “[p]laintiffs are either trying to harass defendants or engaging in a fishing expedition to
scrap for anything that might salvage their case,” or both, and argue that “[n]either is a
permissible basis for discovery.” (ECF No. 264 at 18 (citing Fed. R. Civ. P. 26(c) (“The court
may, for good cause, issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.”); Topline Sols., Inc. v. Sandler Sys., Inc., Civil No.

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It appears that the Johns Hopkins defendants have complied with this Rule in the past by providing cover letters
that indicate to which request the productions are responsive (ECF No. 264 at 11 n.6), and that TRF has complied by
identifying what documents are responsive to each request by letters dated September 6 and 11, October 8, and
November 19, 2018 (ECF No. 264 at 15). BMS has not provided any information about its compliance with Rule
34(b)(E)(i). Accordingly, if its’ prior discovery responses failed to comply with Rule 34(b)(E)(i), BMS is ordered to
supplement these responses, and comply with Rule 34(b)(E)(i) in the future.

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ELH-09-3102, 2017 WL 1230817, at *5 (D. Md. Apr. 3, 2017) (“Rule 26(b), although broad, has
never been a license to engage in an unwieldy, burdensome, and speculative fishing
expedition.”))

While defendants argue that plaintiffs are improperly attempting to “re-do”

discovery at the last minute, I did not impose any specific restrictions on the parties’ ability to
serve additional discovery requests when I extended the discovery deadline. Accordingly, I will
consider each set of discovery requests served by plaintiffs individually.
i.

Interrogatories

On February 12, 2019, plaintiffs issued Plaintiffs’ (Corrected) First Set of Interrogatories
to the Hopkins Defendants (ECF No. 264-15), which contained 17 interrogatories, including
subparts. That same day, plaintiffs issued Plaintiffs’ (Corrected) First Set of Interrogatories to
the Rockefeller Foundation and Bristol Meyers Squibb to be Answered Separately (ECF No.
264-16), which also contained 17 interrogatories, including subparts. Defendants object to these
interrogatories and argue that some are overly broad, while others are irrelevant to the claims and
defenses in the lawsuit.

(ECF No. 264 at 20).

Defendants further argue that a few

interrogatories “prematurely ask for information that will be disclosed in connection with expert
reports and/or in pre-trial.” (ECF No. 264 at 21). Finally, defendants argue that “the great
majority of [plaintiffs’] interrogatories can be satisfied by plaintiffs’ review of archived
documents.” Id.
While defendants object generally to the interrogatories on these bases, this objection is
not ripe for my consideration at this time. Additionally, while defendants have offered to allow
plaintiffs access to their archives, this does not excuse defendants’ obligation to fully respond to
the interrogatories at issue.

Defendants are ordered to serve responses and objections to
17

plaintiffs’ interrogatories within 21 days of this order. If disputes remain regarding defendants’
responses and objections, the parties shall use my informal discovery dispute procedure (ECF
No. 168) to bring these issues to my attention. Accordingly, plaintiffs’ Motion to Compel is
granted as to plaintiffs’ interrogatories.
ii.

Requests for Production of Documents

On February 1, 2019, plaintiffs issued Plaintiffs’ Second Request for Production of
Documents and Things to the Johns Hopkins Hospital, Johns Hopkins University and Johns
Hopkins Health System (ECF No. 264-12), Plaintiffs’ Second Request for Production of
Documents and Things to The Rockefeller Foundation (ECF No. 264-13), and Plaintiffs’ Second
Request for Production of Documents and Things to Bristol-Myers Squibb Company (ECF No.
264-14). Defendants first object on the basis that the number of Requests for Production of
Documents and Things (“RFPs”) exceed the amount permitted under Local Rule 104.1.10 (ECF
No. 264 at 22–25). The Johns Hopkins defendants further argue that many of the RFPs are
“overly broad and/or irrelevant to the claims and defenses in this lawsuit” and that, to the extent
any RFPs are deemed reasonable, providing plaintiffs access to their Medical Archives should
moot plaintiffs’ RFPs. (ECF No. 264 at 23). TRF argues that plaintiffs improperly “both
duplicated their initial set of requests as if the earlier requests had never been served and also
added a variety of new requests,” many of which are irrelevant and facially overbroad. (ECF
Local Rule 104.1 states that, “[u]nless otherwise ordered by the Court, or agreed upon by the parties, no party
shall serve upon any other party, at one (1) time or cumulatively, more than thirty (30) requests for production, or
more than thirty (30) requests for admission (other than requests propounded for the purpose of establishing the
authenticity of documents or the fact that documents constitute business records), including all parts and sub-parts.”
The Johns Hopkins defendants state that plaintiffs issued 79 RFPs to them in February 2019, including many with
subparts, in addition to the 36 previously issued in May 2018. (ECF No. 264 at 22). TRF states that plaintiffs
issued 82 RFPs to them in February 2019, some of which included as many as 41 subparts. (ECF No. 264 at 23). I
also note that plaintiffs originally issued 32 RFPs, several of which included subparts, to TRF in May 2018. (ECF
No. 282-2). Finally, BMS states that plaintiffs first issued 54 RFPs (including subparts) in May 2018, and then
issued 108 RFPs (including subparts) in February 2019. (ECF No. 264 at 25).
10

18

No. 264 at 23–24). TRF also argues that, given that plaintiffs will be able to conduct their own
document searches at TRF archives, “it would be patently unreasonable and contrary to the Rules
to require [TRF] to conduct a parallel search for the broad categories of documents newly
demanded.” (ECF No. 264 at 24–25 (citing Fed. R. Civ. P. 34(b)(2)(B) (“For each item or
category, the response must either state that inspection and related activities will be permitted as
requested or state with specificity the grounds for objecting to the request, including the reasons.
The responding party may state that it will produce copies of documents or of electronically
stored information instead of permitting inspection.”)) Finally, BMS argues that plaintiffs’ RFPs
are “improper and unduly burdensome” because many “are duplicative of requests plaintiffs
made in their First Request for Production to BMS,” others “seek documents that are not held by
BMS and are more appropriately sought from another source,” many RFPs “seek documents
irrelevant to any party’s claims or defenses,” some “seek privileged documents that are protected
from disclosure,” and, finally, “several requests impermissibly seek early Rule 26(a)(2) expert
disclosures.” (ECF No. 264 at 25).
In response, plaintiffs acknowledge defendants’ objection regarding the number of RFPs
served, but argue that they could have complied with Local Rule 104.1 “by listing their requests
in separate groupings with one of the Selected Plaintiffs as requesting each group,” and that
“[a]cceptance of the [d]efendants’ technical argument would elevate form over substance.”
(ECF No. 274 at 7). Accordingly, plaintiffs “request permission to serve in excess of Local Rule
104.1 so that the . . . RFPs are re-allocated among the 14 Selected Plaintiffs in order to comply
with the technical requirements of Local Rule 104.1,” or, alternatively, “request permission to
file a motion for leave to so reallocate the discovery requests. (ECF No. 274 at 8). As to
19

defendants’ remaining arguments, plaintiffs state that “[d]efendants have failed to articulate any
undue burden with particularity and, contrary to [d]efendants’ assertion, discovery is not firmly
closed due to the resolution of outstanding discovery issues and anticipated depositions of
[d]efendants’ expert witnesses.” (ECF No. 274 at 7).
As noted by defendants, plaintiffs have violated Local Rule 104.1 by serving more than
30 RFPs. While plaintiffs argue that they could have listed their requests in separate groupings
with one of the Selected Plaintiffs requesting each group, it does not appear that the interests of,
and the merits of the claims relating to, each category of Selected Plaintiffs11 are so distinct as to
warrant the number of RFPs posed by plaintiffs in excess of the limit of 30 RFPs allowed by
Local Rule 104.1 to be served on each defendant. Here, plaintiffs have already served in excess
of 30 RFPs during their first round of document requests (ECF Nos. 264 at 22, 25, 282-2), and,
accordingly, defendants are not required to respond to their second round of RFPs. Additionally,
plaintiffs will have the opportunity to request additional documents during their search of
defendants’ archives. Within two weeks after completing their archive visits, however, plaintiffs
may seek leave of the court to issue a limited number of additional RFPs in excess of those
already served if plaintiffs believe there are remaining documents to which they have not had
access.12 Any additional RFPs should be narrow, not duplicative of previous discovery requests,
and specifically targeted to each defendant. Accordingly, plaintiffs’ motion is denied as to
plaintiffs’ second set of RFPs, as currently drafted.

11

While plaintiffs argue that the RFPs should be re-allocated among each of the 14 Selected Plaintiffs, I note that
there are only six distinct categories of Selected Plaintiffs (ECF No. 166 at 1), and that plaintiffs have indicated their
intention to dismiss some of these claims (ECF No. 264 at 2).
12
Plaintiffs should file a letter addressed to the undersigned, not to exceed three pages, detailing their need for these
additional RFPs, along with a copy of their proposed RFPs. Defendants will then have two days in which to respond
to plaintiffs’ request in a letter, also not to exceed three pages.

20

iii.

Requests for Admissions

On February 1, 2019, plaintiffs issued Plaintiffs’ First Set of Requests to Admit
Addressed to All Defendants (ECF No. 264-11), which contained 141 Requests for Admission
(“RFAs”), including subparts. Defendants first object to the number of RFAs, noting that Local
Rule 104.1 only allows a party to serve 30 RFAs on another party. (ECF No. 264 at 19).
Defendants then argue that the RFAs are improper, as some “are so imprecise as to render them
impossible to address,” some “are so vague they cannot be properly addressed,” and many “seek
information that is irrelevant to the claims and defenses at issue in this lawsuit.” (ECF No. 264
at 19–20). In sum, defendants argue, “[t]he burden of responding to these excessive and overly
broad RFAs greatly outweighs any possible probative value of the requests,” noting that “[w]hile
some RFAs may have been proper if directed to a particular defendant rather than to all three en
masse,” plaintiffs failed to do so. (ECF No. 264 at 20).
In response, plaintiffs argue again that they could have complied with Local Rule 104.1
“by listing their requests in separate groupings with one of the Selected Plaintiffs as requesting
each group” and that “[d]efendants have failed to articulate any undue burden with particularity.”
(ECF No. 274 at 7). As noted above, however, it does not appear that the excessive number of
RFAs posed by plaintiffs is warranted when the interests of, and the merits relating to the claims
of, each category of Selected Plaintiff are largely similar.

Plaintiffs have not, however,

previously issued any RFAs. Accordingly, plaintiffs may revise and reissue 30 RFAs to each
defendant within 21 days of this order. These RFAs should, however, be specifically tailored to
each defendant, rather than boilerplate to all defendants. Additionally, within 21 days from the
date of this order, plaintiffs may seek leave of the court to serve a limited number of additional
21

RFAs in excess of the 30 allowed under Local Rule 104.1. 13 Plaintiffs should, however, provide
specific arguments as to why there is good cause for the court to allow additional RFAs, and any
additional RFAs should be narrow and specifically targeted to each defendant. Accordingly,
plaintiffs’ Motion to Compel is denied as to plaintiffs’ RFAs, as currently drafted.
II.

Defendants’ Motion to Compel
a.

Medical Records

Defendants request that the court compel plaintiffs to produce the medical records of all
Selected Plaintiffs. (ECF No. 253-1 at 1). Defendants also ask that plaintiffs produce the
medical records of non-Selected Plaintiffs Aurelia Caal Pop, Antonio Caal Pop, Maria Elena Bol,
Jorge Armondo Bol, and Norma Alicia Lorenzo, who were designated as fact witnesses with
information relevant to Selected Plaintiffs and deposed in Guatemala during the week of
February 4, 2019.14 Id. Specifically, they request that plaintiffs provide documents responsive
to defendants’ Request for Production No. 1, which asks all selected representative plaintiffs to
produce “all medical records and laboratory reports of any kind pertaining to you . . . .” (ECF
No. 253-1 at 3 (quoting ECF No. 253-3 at 6). Defendants note that these documents were first
requested via The Johns Hopkins University’s Second Request for Production of Documents and
Things to Plaintiffs, which was served on plaintiffs on March 29, 2018, and later requested in
two conferences with the court, during depositions in Guatemala, and by correspondence
following those depositions. Id. Defendants further state that plaintiffs provided an untimely

13

As previously noted, Plaintiffs should file a letter, not to exceed three pages, to the court, detailing their need for
these additional RFAs, along with a copy of their proposed RFAs. Defendants will then have two days in which to
respond to plaintiffs’ request in a letter, also not to exceed three pages.
14
Antonio Caal Pop and Aurelia Caal Pop are siblings of Selected Plaintiff Guillermo Caal Pop. (ECF No. 253-12
at 3). Maria Elena Bol and Jorge Armondo Bol are siblings of Selected Plaintiff Ricardo Bol. Id. Defendants allege
that Norma Alicia Lorenzo “was instrumental in recruiting Selected Plaintiffs, and she submitted declarations
purporting to identify them.” (ECF No. 273 at 4).

22

response on November 21, 2018, but that production was deficient, and note that plaintiffs made
no objections to the requests. (ECF No. 253-1 at 4). Defendants also state that “[d]eposition
testimony obtained in Guatemala the week of February 4, 2019, confirmed that [p]laintiffs have
withheld numerous medical records.”15 Id. Defendants argue that this request “strikes at the
core of [p]laintiffs’ claims, because the medical records and laboratory reports would show
whether any of the [p]laintiffs even had syphilis,” and “records reflecting medical treatment are
critical to [p]laintiffs’ claims that they are suffering from the symptoms associated with their
alleged syphilis.” (ECF No. 253-1 at 3, 5).
In response, plaintiffs argue that defendants seek to compel plaintiffs to produce
additional discovery regarding non-Selected Plaintiffs in violation of the court’s Initial
Procedural Order (ECF No. 167). (ECF No. 265 at 2). Plaintiffs further argue that “[m]ost of
the deponents who are the subject of the Motion to Compel are not Selected Plaintiffs, and no
discovery was ever served on them – until a Notice of Deposition seeking production of
documents was received on February 1, 2019, the Friday before depositions began in Guatemala
on February 4, 2019.”16 (ECF No. 265 at 2). Finally, plaintiffs state that “they will not be
proceeding with the claims of grandchildren and children of the ‘Direct Victims’ of the
Experiments, and are in the process of obtaining the proper consent to dismiss those claims,” and

15

Defendants provide several examples of documents referenced during the depositions of Selected Plaintiffs that
were never produced, and further state that “the depositions in Guatemala confirmed not only that medical records
for the Selected Plaintiffs and related witnesses exist but were not produced, but also that other records have not
been searched for and collected at all.” (ECF No. 253-1 at 4–9).
16
Plaintiffs specify that “[d]efendants have never served Rule 34 Requests for Production of Documents on the
majority of the Plaintiffs listed in their Motion to Compel, because those individuals are not Selected Plaintiffs . . . .
In the spirit of cooperation, [p]laintiffs agreed to permit the depositions of these non-Selected Plaintiffs and agreed
to an unlimited scope of those depositions, but to be clear, [d]efendants’ grievance is that these non-Selected
Plaintiffs did not produce documents pursuant to Notices of Deposition served on counsel days before the
depositions were taken, not Rule 34 requests.” (ECF No. 265 at 5 n.3).

23

that “most of the individuals whose records are sought by [d]efendants in their Motion to
Compel are individuals whose claims will not be pursued.” Id.
Nonetheless, plaintiffs state that they will produce any medical records that plaintiffs
have in their possession. (ECF No. 265 at 3). Plaintiffs state, however, that many of the other
medical records sought by defendants either do not exist or are not in their possession. (ECF No.
265 at 5). Plaintiffs argue that “the proper method to obtain such records is by way of Rule 45
subpoena served on the third party, not a Rule 34 Request for Production of Documents.” Id.
(citing Ayers v. Cont’l Cas. Co., Civil Action No. 5:05CV95, 2007 WL 2156553, at *5 (N.D.
W.Va. July 25, 2007) (adopting the reasoning of Clark v. Vega Wholesale, Inc., 181 F.R.D. 470,
472 (D. Nev. 1998) and holding that Fed. R. Civ. P. 34 “requires an item in a request for
production of documents to be in the possession, custody or control of the served party and that
medical records held by a physician do not meet this description”)). Plaintiffs further argue that
“if and only if the records are not obtainable by way of subpoena should the court to compel a
plaintiff to sign an authorization so that the defendant can obtain the records.” (ECF No. 265 at
6). Plaintiffs state that they “have no objection to [d]efendants obtaining medical records
through third party subpoenas or other official requests,” and state that “[t]hey will cooperate to
sign authorizations without being compelled to do so,” but argue that defendants have
improperly “demanded that [p]laintiffs go out and obtain the records themselves.” Id.
In their Reply, defendants argue that “[p]laintiffs misconstrue the scope of defendants’
motion to compel,” arguing that their motion “appropriately covers all medical records for the
Selected Plaintiffs in addition to the medical records for the non-Selected Plaintiffs who were
deposed in Guatemala.” (ECF No. 273 at 1). As to plaintiffs’ argument that discovery should

24

be limited to Selected Plaintiffs, defendants argue that discovery regarding Selected Plaintiffs
includes discovery of family members of Selected Plaintiffs. (ECF No. 273 at 2). Defendants
further argue that they requested medical records for the non-Selected Plaintiffs deposed in
Guatemala months prior to the depositions.17 As to plaintiffs’ argument that many of the medical
records are not in plaintiffs’ possession, defendants state that this court “has repeatedly required
plaintiffs to produce medical records held by third parties because a patient has the right to ask
his or her provider for them, and the records are therefore in the patient’s ‘control.’” (ECF No.
273 at 5 (citing Mezu v. Morgan State Univ., 269 F.R.D. 565, 580 (D. Md. 2010); Testerman v.
Procter & Gamble Mfg. Co., Civil No. CCB-13-3048, 2015 WL 151370, at *2 (D. Md. Jan. 9,
2015)). Defendants further state that requiring plaintiffs to produce these medical records is
practical, as only plaintiffs know which hospitals and doctors may hold pertinent records. (ECF
No. 273 at 5).
As noted by defendants, the medical records of Selected Plaintiffs are highly relevant to
defendants’ claims and were properly requested by defendants in The Johns Hopkins
University’s Second Request for Production of Documents and Things to Plaintiffs. (ECF No.
253-3 at 6). Accordingly, plaintiffs are required to produce all medical records of Selected
Plaintiffs. While plaintiffs have agreed to produce medical records that Selected Plaintiffs
currently possess, plaintiffs are also required to produce all relevant medical records, even if
Defendants state that, “[p]ursuant to the [c]ourt’s August 8, 2018 order, see ECF No. 183, defendants identified
the non-Selected Plaintiffs they wanted to depose on August 10, 2018, see ECF No. 253-12. On December 26,
2018, defendants requested ‘all documents pertaining to the witness[es] that are responsive to any of Defendants’
outstanding document requests, or a certification that all responsive documents have been produced.’” (ECF No. 273
at 4 (quoting ECF No. 273-1 at 1)). Defendants also state that, “[o]n January 7, 2019, defendants reiterated this
request, asked for properly executed interrogatory answers for all deponents, and requested that plaintiffs produce
originals of all identity documents pertaining to each deponent.” (ECF No. 273 at 4–5) (citing ECF No. 273-2 at 3–
4)). Finally, defendants state, “[o]n January 11, defendants again noted that they expected plaintiffs to produce ‘all
documents pertinent to [each individual being deposed] at least 14 days in advance of the deposition.’” (ECF No.
273 at 5 (citing ECF No. 273-3 at 2)).
17

25

such records are currently held by third parties. This court has previously held that a plaintiff’s
medical records “are within [the plaintiff’s] possession and control and therefore discoverable
under Rule 34(a)(1), if relevant.” Mezu v. Morgan State Univ., 269 F.R.D. 565, 580 (D. Md.
2010) (ordering that the plaintiff was obligated to produce medical records from her physicians
in Maryland and Nigeria showing that she was sick and unable to travel to show that her absence
from work was justified and to support her claim of Family Medical Leave Act retaliation).
Accordingly, defendants’ motion to compel is granted as to this issue, and plaintiffs are required
to obtain all medical records for all Selected Plaintiffs.18
As to the non-Selected Plaintiffs deposed in Guatemala, four of these non-Selected
Plaintiffs (Antonio Caal Pop, Aurelia Caal Pop, Maria Elena Bol, and Jorge Armondo Bol) are
siblings of Selected Plaintiffs that plaintiffs allege were born with syphilis from their parents,
alleged direct victims of the Experiments. (ECF No. 253-12 at 3). While plaintiffs argue that
these individuals are not Selected Plaintiffs, and that full discovery is therefore not appropriate,
defendants properly identified each individual as a fact witness with information relevant to the
claims of their relatives, who are Selected Plaintiffs. (ECF No. 253-12). Additionally, while
plaintiffs argue that defendants did not issue Rule 34 document production requests for nonSelected Plaintiffs, it is clear that plaintiffs were placed on notice that defendants requested the
medical records of these non-Selected Plaintiffs by the parties’ correspondence prior to the

18

Plaintiffs briefly argue that they will not be proceeding with the claims of grandchildren and children of the
“Direct Victims” of the Guatemala experiments, and state that they are in the process of obtaining the proper consent
to dismiss those claims. (ECF No. 265 at 2). Plaintiffs have made this representation to the court for quite some
time. As noted by defendants, however, “[t]he anticipated withdrawal of certain claims does not relieve [p]laintiffs
of their obligation to search for and produce” relevant documents responsive to this request, particularly in light of
the fact that these records were first requested over a year ago. (ECF No. 253-1 at 11).

26

deposition and defendants’ deposition notices.19 Accordingly, defendants’ motion to compel is
granted as to this issue, and plaintiffs are required to obtain and produce all medical records for
non-Selected Plaintiffs Antonio Caal Pop, Aurelia Caal Pop, Maria Elena Bol, and Jorge
Armondo Bol, within 21 days of this order.
The fifth non-Selected Plaintiff, Norma Alicia Lorenzo, “was deposed because she was
instrumental in recruiting certain Selected Plaintiffs, and she submitted declarations purporting to
identify them.” (ECF No. 273 at 5). The only medical records sought by defendants from Ms.
Lorenzo, however, seem to be those of her mother, who is not a Selected Plaintiff, but which
plaintiffs have already agreed to produce. (ECF No. 265 at 4). Further, it is not clear why Ms.
Lorenzo would have any other medical records relevant to any Selected Plaintiff. Accordingly,
defendants’ motion to compel production of medical records as to Norma Alicia Lorenzo is
denied.
b.

Lab Test Reports and Data

Defendants request that plaintiffs be compelled to produce complete lab test reports and
data generated by Dr. Orozco, who was previously designated as an expert witness for plaintiffs
but was withdrawn by plaintiffs on March 6, 2019. (ECF No. 253-1 at 1). Defendants state that
they served an Amended Notice of Deposition Duces Tecum on Dr. Orozco on February 19,
2019 and requested that Dr. Orozco bring documents relevant to the litigation20 to his deposition,

As noted by defendants, they first asked for documents responsive to defendants’ outstanding discovery requests
for these non-Selected Plaintiffs on December 26, 2018. (ECF No. 273 at 4). While none of defendants’
outstanding discovery requests explicitly asked for documents from non-Selected Plaintiffs, it is clear from the
context of the correspondence that defendants were asking plaintiffs to produce documents responsive to their prior
discovery requests from the non-Selected Plaintiffs chosen for deposition, in addition to the Selected Plaintiffs. See
ECF No. 273-1 at 2. Further, defendants explicitly asked for several relevant documents during the depositions and
reiterated these requests after the depositions. (ECF No. 253-5 at 2).
20
Specifically, defendants’ requests included the following:
19

27

which took place on March 5 and 6, 2019. (ECF No. 253-1 at 9–10). Defendants note that
plaintiffs did not serve any objections to this Amended Notice, but that, during his deposition,
Dr. Orozco stated that he had not seen a copy of the deposition notice or reviewed it with
anyone, and defendants identified numerous records that had not been produced, including
reports on lab tests that Dr. Orozco claims to have performed.

(ECF No. 253-1 at 10).

Defendants note that plaintiffs have produced 299 such lab reports, but that “Dr. Orozco testified
in his deposition that he performed exams on approximately 1,100 to 1,200 people in connection
with this litigation.” Id. Defendants further state that Dr. Orozco brought 580 lab reports to his
deposition, but that “[p]laintiffs’ counsel refused to produce all of the approximately 580 lab
reports on the ground that they plan to drop those Plaintiffs from the case.” Id. Defendants
argue that, as long as these plaintiffs remain in the case, they are entitled to these reports. Id.
Plaintiffs have agreed, however, to produce “over 1700 lab reports, representing all of the test
reports that were provided by Dr. Orozco.” (ECF No. 265 at 7). It is unclear, however, whether
Dr. Orozco possesses any additional lab reports that were not provided to plaintiffs’ counsel.
Accordingly, plaintiffs are directed to determine whether there are any additional lab reports that
have not yet been produced to defendants, and produce any remaining lab reports, or certify that
Dr. Orozco does not possess any additional lab reports, within 21 days of this order.

7. All Documents created by You and/or given to You relating to this litigation, including but not limited
to any notes, photos, or recording taken or charts created in connection with Your examination of any
plaintiffs or potential plaintiffs in this litigation.
8. All serological, DNA and other lab data or reports—whether positive, negative, void, or inconclusive—
generated for any Person included in [the full list of original plaintiffs].
9. The originals of all lab reports generated for any Person included in [the full list of original plaintiffs].
(ECF No. 253-1 at 9–10 (citing ECF No. 253-17 at 9)).

28

Accordingly, it appears that no dispute remains as to these lab reports, and defendants’ Motion to
Compel is denied as moot on this issue.
Defendants also state that Dr. Orozco’s testimony “suggested that many of the lab reports
that were produced during the ligation are not the original reports but had been generated later
and modified to include, among other things, laboratory stamps.” Id. Defendants note that Dr.
Orozco testified that the original results “may be stored in the computers in his laboratory,” and
that “the original results were printed on sheets of paper by a thermal printer.” (ECF No. 253-1
at 10–11). Defendants request that plaintiffs be compelled to produce all of these original
reports. (ECF No. 253-1 at 11). Finally, defendants state that Dr. Orozco testified that he
produced statistics about certain plaintiffs to the Guatemala Ministry of Health’s Sexually
Transmitted Diseases Unit, but that those records have not been produced, although they fell
within several discovery requests, such as The Johns Hopkins’ Second Request for Production of
Documents and Things to Plaintiffs and the Amended Notice of Deposition Duces Tecum of Dr.
Orozco. Id.
In response, plaintiffs state that they do not have any additional documents from Dr.
Orozco. (ECF No. 265 at 7). Specifically, plaintiffs state, they “do not represent or control Dr.
Orozco . . . do not have authority to accept a subpoena on his behalf . . . [and] do not have access
to his computer to produce any electronic records or ‘thermal printouts.’” Id. Accordingly,
plaintiffs argue, “[t]o the extent [d]efendants seek additional documents from Dr. Orozco,
[p]laintiffs believe the proper way to obtain them is by way of subpoena served on Dr. Orozco
himself.” Id.

29

In their Reply, defendants argue that “these records were requested when Dr. Orozco was
still plaintiffs’ expert and under plaintiffs’ control” and “should have been collected and
produced at that time or at minimum brought to his deposition.”

(ECF No. 273 at 6).

Defendants further argue that “[t]he fact that plaintiffs withdrew Dr. Orozco does not change
their discovery obligations or mean that defendants must now issue a subpoena.” Id.
Here, defendants have established that these documents were properly requested in The
Johns Hopkins’ Second Request for Production of Documents and Things to Plaintiffs and the
Amended Notice of Deposition Duces Tecum of Dr. Orozco. These requests were served on
plaintiffs prior to Dr. Orozco’s deposition on March 5, 2019, and plaintiffs were therefore
required to produce the requested documents by this date. Although plaintiffs later withdrew Dr.
Orozco as an expert witness, this does not obviate the need for plaintiffs to cure their earlier
failure to comply with their discovery obligations. Accordingly, defendants’ Motion to Compel
is granted as to these requests, and plaintiffs are directed to produce the documents at issue
within 21 days of the date of this order.
Although defendants also briefly request that plaintiffs be compelled to produce all
documents requested in a subpoena duces tecum to Dr. Werner (ECF No. 273 at 6), this request
is premature. Although the court is not aware if Dr. Werner’s deposition has yet been scheduled,
plaintiffs have represented to the court during a telephone conference held on March 27, 2019,
that they would use good faith efforts to schedule this deposition and assist in the production of
documents relating thereto. (ECF No. 251). Accordingly, defendants’ motion to compel is
denied without prejudice as to these documents.

30

c.

Original Documents

Finally, defendants ask that the court compel plaintiffs to produce “originals of certain
illegible or incomplete documents bearing on the identity of [p]laintiffs.” (ECF No. 253-1 at 1).
Specifically, defendants state that they issued deposition notices duces tecum to eleven
plaintiffs21 who were deposed in Guatemala during the week of February 4, 2019. (ECF No.
253-1 at 13). These notices “requested that [p]laintiffs bring with them to their depositions ‘[t]he
original versions of any document for which a photocopy was previously produced.’” Id. (citing
ECF No. 253-20). Defendants state that plaintiffs failed to produce these documents, although
plaintiffs did not serve any objections to the deposition notices. Id. Defendants argue that these
original copies are critical, as many photocopies produced are illegible, and state that “there is
evidence that documents produced in this litigation have been altered.” Id. Defendants also state
that they requested these materials again on February 12, 2019, after the depositions were
completed. (ECF No. 253-1 at 14 (citing ECF No. 253-5)).
In response, plaintiffs state that they “have produced photocopies of vital documents such
as birth certificates, marriage certificates, death certificates, and government identification
cards,” but “are unable, and should not be required, to turn over ‘originals’ of these documents to
[d]efendants’ lawyers in the United States and be without them for weeks or months.” (ECF No.
265 at 8). Plaintiffs further argue that defendants are able to obtain their own copies of birth,
death, or marriage certifications from the National Registry of Persons (“RENAP”) in
Guatemala. Id. Plaintiffs state that “[d]efendants can point to only one example of an ‘illegible’
photocopy that may require examination of the original: the military registration of Antonio Caal
21

These plaintiffs are Carlos Garcia Garcia, Guillermo Caal Pop, Ramiro Galvez Villalobos, Reginaldo Ramirez
Mendez, Victor Vicente Catun Coy, Antonio Caal Pop, Aurelia Caal Pop, Jorge Armondo Bol, Maria Elena Bol,
Norma Alicia Lorenzo Lopez and Ricardo Bol. (ECF No. 253-1 at 13).

31

Ramirez (a Direct Victim and Selected Plaintiff) from the 1940s,” and state that they are making
good faith efforts to secure the original of this document. (ECF No. 265 at 9). Plaintiffs also
state that, if there are other specific documents in plaintiffs’ possession that defendants believe
require examination of an original, plaintiffs’ counsel will make similar good faith efforts to
obtain them. Id.
In their Reply, defendants state that they “are willing to resolve plaintiffs’ purported
concern by agreeing to inspect the documents in Guatemala in the offices of defendants’ local
counsel.” (ECF No. 273 at 7). As to plaintiffs’ argument that defendants should obtain their
own copies of documents from RENAP, defendants argue that plaintiffs turned over numerous
incomplete documents from RENAP and failed to cure these errors when asked to do so by
defendants. (ECF No. 273 at 8). Defendants further argue that “[r]equiring defendants to seek
out documents from RENAP imposes more cost and burden on defendants and is not an
acceptable alternative to plaintiffs complying with their discovery obligations.” Id.
Here, defendants properly requested that plaintiffs produce “[t]he original versions of any
document for which a photocopy was previously produced” at or before the scheduled
depositions during the week of February 4, 2019 in Guatemala. (ECF No. 253-20). Plaintiffs
failed to do so, and accordingly, defendants are entitled to inspect the original versions of these
documents. Further, plaintiffs’ suggestion that defendants should be required to obtain original
records from RENAP is unreasonable, particularly in light of defendants’ agreement to inspect
the documents in Guatemala to alleviate plaintiffs’ concerns about relinquishing possession of
these documents. Accordingly, defendants’ Motion to Compel is granted on this issue, and

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plaintiffs must make these documents available for defendants to view in Guatemala within 21
days of this order.
III.

Conclusion
For the foregoing reasons, plaintiffs’ Motion to Compel (ECF No. 252) is GRANTED in

part and DENIED in part and defendants’ Motion to Compel (ECF No. 253) is GRANTED in
part and DENIED in part. A separate order will be issued.

Date: May 21, 2019

/s/
Beth P. Gesner
Chief United States Magistrate Judge

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