Auge v. Stryker Corporation et al

Filing 125

ORDER by Magistrate Judge Stephan M. Vidmar GRANTING IN PART and DENYING IN PART 113 Plaintiff's Motion for an Order Compelling Responses to Document Requests and GRANTING IN PART and DENYING IN PART 114 Plaintiff's Motion to Amend Scheduling Order. (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CLARKE COLL,
Plaintiff,1
v.

No. 14-cv-1089 KG/SMV

STRYKER CORPORATION and
HOWMEDICA OSTEONICS CORPORATION,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTIONS TO AMEND THE SCHEDULING ORDER
AND COMPEL PRODUCTION OF DOCUMENTS
THIS MATTER is before the Court on: (1) Plaintiff’s Motion to Amend Scheduling
Order [Doc. 114] and (2) Plaintiff’s Motion for an Order Compelling Responses to Document
Requests [Doc. 113], both filed on January 31, 2017. The Court has considered the briefing on
the motions [Docs. 113, 114, 115, 117, 118], the relevant portions of the record, the oral
argument of February 27, 2017, and the relevant law. Being otherwise fully advised in the
premises and for the reasons stated on the record at the February 27, 2017 oral argument,
IT IS ORDERED, ADJUDGED, AND DECREED that both motions [Docs. 113, 114]
are GRANTED IN PART and DENIED IN PART, as follows:
1. The Scheduling Order and Order Amending Scheduling Order [Docs. 64, 84] are deemed
amended to allow 30 requests for production for each side beyond those that had already
been served by September 9, 2016 (the date of the Rule 16 Scheduling Conference).

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Mr. Coll was substituted as Plaintiff in this matter when the original Plaintiff, Wayne Augé, II, M.D., filed for
bankruptcy. Mr. Coll is the trustee of the bankruptcy estate. [Doc. 30].

Otherwise, Plaintiff has failed to show good cause to amend, and his motion to amend the
Scheduling Order is DENIED.
2. Plaintiff’s Motion to Compel responses to Request for Production (“RFP”) numbers
70−73 is GRANTED.
3. Plaintiff’s Motion to Compel responses to RFP numbers 74–77 is DENIED.
4. Plaintiff’s Motion to Compel responses to RFP numbers 78–81 is DENIED.
5. Plaintiff’s Motion to Compel responses to RFP numbers 82–85 is GRANTED IN PART
and DENIED IN PART. The motion is GRANTED only to the extent that any third party
has contested Defendants’ ownership of proprietary rights in any medical device or
system they have marketed under the names TwinLoopFlex, Iconix, VersitTomic, or
MicroFX, on the ground that the ownership rights actually belonged to Dr. Augé. Any
other challenge to Defendants’ ownership is irrelevant, and to the extent the motion seeks
documents related to other challenges, it is DENIED.
6. Plaintiff’s Motion to Compel a response to RFP number 86 is GRANTED IN PART and
DENIED IN PART.

If Defendants intend to move to exclude the testimony of

Dr. Wayne Z. Burkhead on the ground that he has a conflict of interest (considering that
he has worked for Defendants in the past), then such a motion must be filed no later than
March 20, 2017. If Defendants fail to file such a motion by March 20, 2017, the
argument (that Dr. Burkead’s testimony is precluded by a conflict of interest) will be
waived, and Plaintiff’s Motion to Compel a response to RFP number 86 will be DENIED.
If, however, Defendants file such a motion to exclude Dr. Burkhead’s testimony (on the
ground that he has a conflict of interest), then Plaintiff’s Motion to Compel a response to
RFP number 86 will be GRANTED, and Defendants shall serve responsive documents
within five days of filing their motion to exclude Dr. Burkhead’s testimony.
7. Plaintiff’s Motion to Compel responses to RFP numbers 87–90 is GRANTED.
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8. Plaintiff’s Motion to Compel responses to RFP numbers 91–93 is GRANTED IN PART
and DENIED IN PART. To the extent that Defendants have already identified the five
biggest customers (as described in RFP numbers 91–93), no further response is required,
and Plaintiff’s motion is DENIED. However, if Defendants have not already identified
the five biggest customers (as described in RFP numbers 91–93), then Plaintiff’s motion
is GRANTED IN PART, and Defendants must produce some document(s) that identify
the customers. Defendants need not produce every responsive document.
9. Plaintiff’s Motion to Compel responses to RFP numbers 94–96 is DENIED.
10. Except as to RFP number 86, Defendants must produce the materials described herein no
later than March 20, 2017. Any objection to this order under Fed. R. Civ. P. 72 will stay
the order but only to the extent of the objection.

In other words, for example, if

Defendants object to this order’s compelling a response to RFP number 70 but not RFP
number 71, then Defendants must respond to RFP number 71 no later than March 20,
2017, but are not required to respond to RFP number 70 until their objection is resolved.
IT IS FURTHER ORDERED that, pursuant to Fed. R. Civ. P. 37(a)(5)(C), no expenses
are appropriate, and Plaintiff’s request for expenses is DENIED.
IT IS SO ORDERED.

_____________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

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