Kwasniewski et al v. sanofi-aventis U.S., LLC et al

Filing 190

ORDER Granting 181 Motion to Compel. See Order for details/deadlines. Signed by Magistrate Judge Nancy J. Koppe on 3/3/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JENNIFER KWASNIEWSKI, et al.,
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Plaintiffs,
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vs.
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SANOFI-AVENTIS U.S. LLC, et al.,
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Defendants.
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__________________________________________)

Case No. 2:12-cv-00515-GMN-NJK
ORDER
(Docket No. 181)

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Pending before the Court is Defendant Sanofi-Aventis U.S. LLC’s motion to compel

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inspection of decedent’s computer hard drive and mobile telephone. Docket No. 181. Plaintiffs filed

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a response, and Defendant filed a reply. Docket Nos. 184, 188. The Court finds this motion properly

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resolved without oral argument. See LR 78-1. For the reasons discussed below, Defendant’s motion

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to compel, Docket No. 181, is hereby GRANTED.

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I.

BACKGROUND

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This action arises from the death of Andrew A. Kwasniewski (“decedent”), who committed

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suicide while prescribed Ambien CR. See, e.g., Docket No. 148 ¶ 64. Plaintiffs initially commenced

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the action in state court. Docket No. 1 at 2. On March 27, 2012, Defendant Sanofi-Aventis removed

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the action to this Court. Docket No. 1. On April 25, 2016, Plaintiffs filed an amended complaint,

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alleging, inter alia, failure to warn, negligence, and strict liability claims. Docket No. 148. Plaintiffs

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allege that Ambien CR caused the decedent to commit suicide. See, e.g., id. ¶ 64.

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II.

DISCUSSION

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When a party fails to provide requested discovery, the requesting party may move to compel

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that discovery. See Fed. R. Civ. P. 37(a). “[B]road discretion is vested in the trial court to permit

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or deny discovery.” Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Parties are permitted to

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seek discovery of any nonprivileged matter that is relevant and proportional to the needs of the case.

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Fed. R. Civ. P. 26(b)(1). The party seeking to avoid discovery bears the burden of explaining why

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discovery should be denied. See, e.g., Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, 469

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(N.D. Tex. 2015) (addressing burdens following 2015 amendments to the discovery rules).

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Defendant submits that it seeks the discovery at issue in order to determine whether personal,

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professional, or financial stressors could have contributed to the decedent’s suicide. Docket No. 181

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at 6-8. Defendant further notes that the parties previously agreed to a stipulated protocol for

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allowing Defendant to search the decedent’s electronic devices which, it submits, the Court should

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enforce. Id. at 6. Plaintiffs respond that the discovery requested is neither relevant nor proportional

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because Defendant has not yet filed an answer. Docket No. 184 at 2-3. Plaintiffs do not dispute the

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validity of the stipulated protocol. See Docket No. 184. Defendant replies that, inter alia, Plaintiffs

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placed the cause of decedent’s death in issue by alleging that Ambien CR caused his suicide. Docket

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No. 188 at 2. Defendant also submits that the discovery sought is relevant and proportional, and that

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Plaintiffs impliedly agreed as such because “the parties previously stipulated to a cost-sharing

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agreement that distributes the cost of data retrieval between the two parties.” Id. at 4.

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The Court finds that the discovery that Defendant seeks is clearly relevant to the issues

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presented, specifically the decedent’s state of mind before his suicide, and any factors that

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contributed to his suicide. Additionally, the Court finds the discovery requested proportional to the

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needs of the case. Moreover, the Court has repeatedly rejected Plaintiffs’ argument that discovery

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should not ensue prior to the filing of an answer. See, e.g., Docket Nos. 165, 174. Further, as

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Defendant notes, the fact that Plaintiffs previously agreed to a stipulated protocol for the exact

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searches at issue here weighs in favor of granting this motion. See, e.g., Docket No. 181 at 6 (citing

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Direct Lineal Descendants of Jack v. Sec’y of the Interior, 2014 WL 5439781, at *1 (D. Nev. Oct.

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24, 2014)).

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III.

CONCLUSION

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Accordingly, Defendant’s motion to compel inspection of decedent’s computer hard drive

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and mobile telephone, Docket No. 181, is hereby GRANTED. Plaintiffs shall allow Defendant

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access to the decedent’s electronic devices in accordance with the parties’ stipulated protocol for

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preservation and forensic evaluation of electronically stored information, Docket No. 105, no later

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than March 17, 2017.

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IT IS SO ORDERED.
DATED: March 3, 2017
______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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