McClurg et al v. MI Holdings, Inc. et al
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs motion for reconsideration of the Courts May 2, 2017 Order is GRANTED as set forth above. ECF No. 800.. Signed by District Judge Audrey G. Fleissig on 1/7/20. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SCOTT D. MCCLURG, et al.,
MALLINCKRODT, LLC, et al.,
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ 1 motion for reconsideration of the
Court’s May 2, 2017 Order (ECF No. 557), which held with respect to cases that had
been consolidated at that time and for reasons stated previously in a December 9, 2016
Memorandum and Order (ECF No. 467) granting in part Defendants’ motion for a
Plaintiffs shall continue to comply with their obligation to produce records
in their possession and shall pay 25% of the costs incurred in collecting and
maintaining additional records of Plaintiffs through third-party vendor the
Marker Group, in exchange for full access to all records collected and
maintained in the Marker Group’s portal, subject to reconsideration if the
parties demonstrate this allocation is unreasonable or that an offset or credit
is appropriate for records already collected and produced by Plaintiffs.
ECF No. 557 at 2.
Defendants assert that they collected records through the Marker Group from
December 2016 through May 2017, and paid approximately $401,494.10 to the Marker
The Plaintiffs at issue in this Order are those who filed suit before September 12,
2018, and who are represented by primarily by Tor Hoerman Law LLC.
Group for such records. It is undisputed that Plaintiffs never paid for the records that
Defendants collected from December 2016 through May 2017, and also never received
access to those records. Further, Defendants do not dispute that Plaintiffs were not
provided detailed invoices for these records until two years after the relevant time, and
Plaintiffs dispute the propriety of some of the charges.
Defendants contend that Plaintiffs’ counsel never received access because
Plaintiffs were only permitted access to records for which they paid. Nevertheless,
Defendants maintain that, pursuant to the May 2, 2017 Order, Plaintiffs owe them 25% of
this amount, or $100,373.78.
Since this issue first arose, the Court has consistently encouraged the parties to
mediate any issues regarding record collection and cost sharing with the Special Master
appointed in this case. By July of 2018, the parties were engaged in serious settlement
discussions, and they reached a settlement agreement shortly thereafter. However, the
parties failed to resolve—or even, it seems, address—this issue as part of their overall
settlement negotiations. Rather, they raise the issue now, post-settlement, and ask the
Court to resolve it.
Upon review of the record and careful consideration of the parties’ arguments, the
Court will grant Plaintiffs’ motion. As an initial matter, it is not clear to the Court that
the May 2, 2017 Order applied to records collected prior to that date, as opposed to
records collected going forward. Moreover, the Order itself contemplated cost-sharing
only “in exchange for” Plaintiffs’ access to such records. Indeed, the idea of cost-sharing
arose primarily because Plaintiffs sought production of the records Defendants had
collected. See, e.g., Defs.’ Mot. for Protective Order, ECF No. 428.
Defendants’ assertion that Plaintiffs no longer desire access only because the
cases have settled is irrelevant. The Order to share costs was premised on access. The
Court will not order Plaintiffs to share the cost of collection of the records at issue and,
likewise, Plaintiffs will not have access to those records.
If Defendants believed that they bore an undue burden with respect to the record
collection at issue, they could have filed a motion to that effect before the cases settled or,
at a minimum, addressed the issue during and as part of the settlement discussions. They
did not do so, and as such, they bore the risk that they would not be reimbursed for the
records to which they alone had access. Further, Defendants’ delay in producing the
relevant invoices frustrated Plaintiffs’ ability to address any disputes and obtain access
while it was relevant.
IT IS HEREBY ORDERED that Plaintiffs’ motion for reconsideration of the
Court’s May 2, 2017 Order is GRANTED as set forth above. ECF No. 800.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 7th day of January, 2020.
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