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).
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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