Merz North America, Inc. v. Cytophil, Inc.

Filing 253

ORDER granting in part and denying in part 212 Cytophil's Motion to Compel. Signed by Magistrate Judge Kimberly A. Swank on 9/26/2017. (Foell, S.)

Merz North America, Inc. v. Cytophil, Inc.
Cytophil v.
Merz North America, Inc.

Cytophil

Cytophil
see Cytophil, Inc. v Merz North America, Inc.

2

Eshelman v. Puma Biotech., Inc.
EEOC v. Sheffield Fin., LLC

inter alia

3

see generally Boykin Anchor Co., Inc. v. Wong

4

Pro Fit Mgmt., Inc. v. Lady of Am. Franchise Corp.

converse, confer, compare views, consult and deliberate
Id.

5

6

all

refer

7

any

any

8

See
Cytophil

See
Cytophil, Inc. v. Merz North
America, Inc.

9

Id.

Id.

See
Cytophil,
Inc. v. Merz North America, Inc.

See
North America, Inc.

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Cytophil, Inc. v. Merz

Columbus-America Discovery Group v. Atl. Mut. Ins. Co., 203 F.3d 291, 304 (4th Cir. 2000).
Pretrial rulings, however, are always subject to reconsideration by the district court and thus are
not necessarily barred by the court’s prior rulings. Lester v. City of Lafayette, Colo., 639 F. App'x
538, 542 (10th Cir. 2016) (whether to apply the law-of-the-case doctrine to discovery rulings is a
discretionary matter).
While the decision of the United States District Court for the Eastern District of Wisconsin
does not operate as a bar to the discovery sought by Cytophil, Cytophil has not demonstrated any
basis for reconsideration of Judge Adelman’s prior rulings. Accordingly, the court denies
Cytophil’s motion to compel Merz to respond to Request Nos. 137-40.
CONCLUSION
For the foregoing reasons, Cytophil’s motion to compel [DE #212] is GRANTED IN
PART and DENIED IN PART as follows:
1.

Merz shall provide Cytophil with samples of its Prolaryn Plus® and Radiesse®

products sought by Request Nos. 120-21. Within ten (10) days of the date of this order, the parties
shall meet and confer, in person or by telephone, in an effort to reach an agreement concerning the
terms and conditions for Merz’s production of the samples. In the event the parties are unable to
reach such an agreement through the meet-and-confer process, the parties shall request a discovery
conference by filing a joint motion with the court advising the court of the general nature of any
disputes, the efforts taken to resolve such disputes, and the need for the court’s involvement;
2.

The court denies Cytophil’s requests to compel further responses to Request Nos.

63, 74-77, and 137-40; and
3.

Due to the concerns expressed hereinabove concerning the parties’ efforts to

resolve their disputes without court intervention and based upon the outcome of Cytophil’s motion,
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