Rouviere et al v. Depuy Orthopaedics, Inc. et al

Filing 221

ORDER granting 219 Letter Motion to Seal. Request GRANTED. ECF No. 218 shall be placed under seal. No later than 12/1/2020, Plaintiffs shall either (1) respond to Howmedica's request that "Plaintiffs should be ordered to reimburse rea sonable fees and costs incurred by [Howmedica] in connection with its efforts to remedy Plaintiffs' wrongful disclosures," or (2) reach a reasonable accommodation with Howmedica. So Ordered. (Signed by Magistrate Judge Stewart D. Aaron on 11/20/2020) (js) (Main Document 221 replaced on 11/20/2020) (kl). Modified on 11/20/2020 (kl).

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Case 1:18-cv-04814-LJL-SDA Document 221 Filed 11/20/20 Page 1 of 2 Paul E. Asfendis Director 11/20/2020 Gibbons P.C. One Pennsylvania Plaza 37th Floor New York, NY 10119-3701 Direct: 212-613-2067 Fax: 212-554-9650 pasfendis@gibbonslaw.com November 19, 2020 VIA ECF Honorable Stewart D. Aaron, U.S.M.J. Daniel Patrick Moynihan United States Courthouse 500 Pearl St. New York, NY 10007-1312 Re: Request GRANTED. ECF No. 218 shall be placed under seal. No later than 12/1/2020, Plaintiffs shall either (1) respond to Howmedica’s request that “Plaintiffs should be ordered to reimburse reasonable fees and costs incurred by [Howmedica] in connection with its efforts to remedy Plaintiffs’ wrongful disclosures,” or (2) reach a reasonable accommodation with Howmedica. SO ORDERED. Dated: November 20, 2020 Rouviere v. DePuy Orthopaedics, et al. Civil Action No. 1:18-cv-4814 (LJL-SDA) Dear Judge Aaron: This firm represents Defendant Howmedica Osteonics Corp. (“HOC”) in the abovereferenced action. We write for two reasons. First, incredibly, Plaintiffs have yet again disobeyed this Court’s clear orders that certain information pertaining to the disqualified expert and his company be redacted. Co-defendant, DePuy, recently moved to strike/preclude any opinions of Plaintiffs’ new engineering expert asserted against DePuy. (ECF No. 214) Plaintiffs filed their opposition late last night. (ECF No. 218) Plaintiffs’ opposition letter identifies the employer of the disqualified expert in both the body of the letter and in the first two exhibits. Indeed, Plaintiff attaches the disqualified expert’s company’s conflict of interest sheet in unredacted form, as well as the report of the disqualified expert redacted only as to the name of the disqualified expert, despite this Court’s approval of redaction of the employer, and its approval of HOC’s more inclusive redactions of these very documents that Plaintiffs now attach to their opposition. (ECF No. 217). Plaintiff also attaches the report of the new engineering expert although it is marked “Confidential” on every page and directly quotes from and even attaches certain of HOC’s confidential design and regulatory documents which were produced in the litigation pursuant to Protective Order, and related confidential deposition testimony (see ECF 218-5, Report pp. 27-30, 33, 65-67). The Court recently approved HOC’s redactions of this and similar information in the disqualified expert’s report. HOC regrets sounding like a broken record in multiple requests for sealing/redaction, but Plaintiffs’ repeated public filing of information they know to be confidential leaves us no choice but to once again request the Court’s intervention. HOC respectfully requests that the Court place Plaintiffs’ latest filing (ECF No. 218) under seal and that Plaintiffs be ordered to re-file the letter 2863715.1 100909-99814 Case 1:18-cv-04814-LJL-SDA Document 221 Filed 11/20/20 Page 2 of 2 Hon. Stewart D. Aaron November 19, 2020 Page 2 and exhibits with appropriate redactions. Respectfully, HOC submits that, after repeated disregard of the confidentiality surrounding this issue, at this point and going forward, Plaintiffs should be ordered to reimburse reasonable fees and costs incurred by HOC in connection with its efforts to remedy Plaintiffs’ wrongful disclosures. We also write with regard to the Court’s October 25, 2020 disqualification order (ECF No. 193), which permitted Plaintiffs to serve an alternate engineering expert disclosure by November 9, 2020 and DePuy’s motion regarding that order. That motion is based on an argument unique to DePuy that the disqualified expert did not issue any opinion against DePuy, and thus any new opinion against DePuy is by definition outside the scope of the disqualified expert’s report. DePuy’s unique motion argument does not apply to HOC. Accordingly, HOC does not intend to file or join in a motion based on this unique argument. However, HOC specifically reserves the right to move in the future based on the scope of the new expert’s opinions, if appropriate, after discovery related to the expert’s opinions has been completed. We thank the Court for its consideration of this letter. Respectfully submitted, s/Paul E. Asfendis Paul E. Asfendis cc: All counsel of record via ECF 2863715.1 100909-99814

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