Bartis v. Biomet, Inc. et al

Filing 91

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Defendants' Motion to Compel Discovery Responses (Doc. 84 ) is GRANTED in part. Plaintiff Guan Hollins shall produce all data, including step counts, from his Fitbit from the time he began wea ring the device through the present date. Hollins may redact any information concerning his heart rate, sleep records, or location, as such information is not relevant to this litigation and raises privacy concerns. Signed by District Judge John A. Ross on 5/24/2021. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN BARTIS, et al.,

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Plaintiffs,
v.
BIOMET, INC., et al.,
Defendants.

Case No. 4:13-CV-00657-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Compel Discovery Responses.
(Doc. 84). The motion is fully briefed and ready for disposition. For the reasons discussed below,
the motion will be granted in part.
I.

BACKGROUND
In this consolidated action, Plaintiffs allege that they suffered substantial injuries from the

implantation of an artificial hip manufactured and marketed by Defendants. Plaintiff Guan Hollins
(“Hollins”) claims that he will continue to experience pain and lack of mobility due to the allegedly
defective device. Hollins v. Biomet, Inc., et al., 4:18-CV-2093, Doc. 1 at ¶ 28. In response to an
interrogatory by Defendants, Hollins admitted that he consistently wears a Fitbit which tracks his
number of steps, heart rate, and sleep. (Doc. 84-2 at 3). Defendants requested production of all
data from the Fitbit and any other wearable device or other fitness tracker used by Hollins. (Doc.
84-1 at 7-8). Hollins initially objected that the requests are “overly broad, unduly burdensome, not
properly limited in time and scope, [ ] not calculated to lead to the discovery of admissible
evidence,” and that he is unable to obtain the information. (Id.). Hollins supplemented this
response by stating that fitness tracker data is potentially unreliable and he did not begin wearing
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the Fitbit until eight months after his revision surgery explanting the artificial hip. (Doc. 84-3 at
2-3). Defendants now seek an order from this Court compelling Hollins to produce the requested
data.
II.

LEGAL STANDARD
Pursuant to Fed. R. Civ. P. 26(b)(1), parties may obtain discovery “regarding any

nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs
of the case, considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.” See also Fed. R. Civ. P. 34 (discussing
production of electronically stored information). A party may move to compel production when
another party fails to produce requested electronically stored information (“ESI”). Fed. R. Civ. P.
37(a)(3)(B)(iv).
A district court has considerable discretion in handling pretrial discovery. Chavis Van &
Storage of Myrtle Beach, Inc. v. United Van Lines, LLC, 784 F.3d 1183, 1198 (8th Cir. 2015).
Discovery rules, moreover, are “broadly and liberally construed in order to serve the purpose of
discovery,” which is to “provide the parties with information essential to the proper litigation of
all relevant facts, to eliminate surprise, and to promote settlement.” Roberts v. Prime Transp. Inc.,
No. 1:09-CV-46 LMB, 2009 WL 2913917, at *1 (E.D. Mo. Sept. 4, 2009) (internal quotations
omitted); see also Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (“Rule 26(b) . . .
is widely recognized as a discovery rule which is liberal in scope and interpretation, extending to
those matters which are relevant and reasonably calculated to lead to the discovery of admissible
evidence.”).
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III.

ANALYSIS
Defendants argue that the ESI sought is directly relevant to causation and damages because

Hollins’ “claims of permanent injury are central to this lawsuit” and if Hollins “were walking or
running miles every day, the impact on the validity of his claim would be crucial.” (Doc. 84 at 45). Hollins responds that he has never claimed difficulty walking or jogging and Defendants’
request for production amounts to a fishing expedition. (Doc. 86 at 3-5). This Court finds that
Hollins’ post-explantation activity levels are relevant and a portion of the Fitbit data should be
produced, especially given the extremely low burden of production.
There is surprisingly little precedent on this issue given the ubiquitous presence of wearable
devices. In a New York state case, the defendant sought disclosure of plaintiff’s Fitbit records to
determine how plaintiff managed to lose 50 pounds following a car accident despite her injuries.
Spoljaric v. Savarese, No. 608838-2017, 2020 WL 611911, at *3 (N.Y. Sup. Ct. Jan. 28, 2020).
The court described defendant’s request as an “overly broad fishing expedition not based upon any
supportable evidence” and noted that diet is more important than exercise when it comes to weight
loss. Id. (internal quotation omitted). At least one federal court has recognized, however, that “a
mobile app that indicates Plaintiff performs strenuous activities may be relevant to claims of injury
or disability.” Cory v. George Carden Int’l Circus, Inc., No. 4:13-CV-760, 2016 WL 3460781, at
*2 (E.D. Tex. Feb. 5, 2016). Like most discovery disputes, the discoverability of wearable device
data depends upon the facts of the particular case.
Hollins claims that he suffers permanent physical injuries due to implantation of
Defendants’ allegedly defective artificial hip. Hollins began wearing the Fitbit approximately eight
months after his explantation surgery. At his deposition, Hollins admitted that he can walk over a
mile without pain or discomfort, move furniture, jog, and climb stairs. (Doc. 86 at 2-3). Instead,
Hollins’ long-term damages claims “concern activities that are more demanding on the hips, like
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basketball and softball.” (Id. at 5-6). Hollins’ admission that he can walk and jog without pain or
discomfort certainly diminishes the Fitbit data’s relevance. As Defendants note in reply, however,
Hollins has not been entirely consistent on this front. In response to an interrogatory, Hollins
specifically stated that he “has difficulty walking due to pain.” (Doc. 90-1 at 4). Plaintiffs’ expert
designations also reference difficulty walking. (Doc. 90-2 at 4).
Considering the liberal discovery rules, minimal burden of production, and limited privacy
risks, this Court will require production of a portion of the Fitbit data. A plaintiff’s wearing of an
activity tracker like a Fitbit does not warrant a fishing expedition into the data from such device.
See Hofer, 981 F.2d at 380 (Liberal standard of relevance “should not be misapplied so as to allow
fishing expeditions in discovery.”). But in this case, the extent of Hollins’ physical activity is
relevant to his claims of long-term physical injury. Hollins broadly alleges that he suffers longterm pain and lack of physical mobility due to the allegedly defective hip implant. Hollins’
supposed ability to walk or jog short distances without discomfort does not render the Fitbit data
completely irrelevant, as the data could reveal that Hollins is walking or jogging substantial
distances. Hollins’ objection speaks to the Fitbit data’s weight, not its discoverability. Hollins has
also not been entirely consistent as to whether he experiences pain while walking.
Finally, Hollins argues that Fitbit data is unreliable. This argument clearly goes to
admissibility and weight, not discoverability. See Fed. R. Civ. P. 26(b)(1) (“Information within
this scope of discovery need not be admissible in evidence to be discoverable.”). No inquiry into
the reliability of Fitbit data is necessary at this juncture. This Court finds the Fitbit data relevant
and reasonably calculated to lead to the discovery of admissible evidence. Hollins will be ordered
to produce his Fitbit data, provided that he may redact any information concerning his heart rate,
sleep records, or physical location as such information is entirely irrelevant and raises privacy
concerns.
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Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Compel Discovery Responses
(Doc. 84) is GRANTED in part. Plaintiff Guan Hollins shall produce all data, including step
counts, from his Fitbit from the time he began wearing the device through the present date. Hollins
may redact any information concerning his heart rate, sleep records, or location, as such
information is not relevant to this litigation and raises privacy concerns.
Dated this 24th day of May, 2021.
________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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