Eshelman v. Auerbach et al
ORDER denying 149 Motion to Compel. Signed by US Magistrate Judge Robert B. Jones, Jr on 9/14/2017. (Briggeman, N.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
FREDRIC N. ESHELMAN,
PUMA BIOTECHNOLOGY, INC.,
Plaintiff Fredric N. Eshelman ("Eshelman") moves the court to compel Defendant Puma
Biotecbriology, Inc. ("Puma") to produce the calendars of two of its corporate officers. [DE-149].
Puma opposes the motion. [DE-152]. For the reasons set forth below, Eshelman' s motion is denied.
On February 2,. 2016; Eshelman filed a complaint against Puma arid Alan H. Auerbach
("Auerbac}i"), Puma's chief.executive officer and Board Chairman, asserting claims oflibelper se
.· .• ·'· ~,.
and libel per quad related to statements contained in an allegedly defamatory !nvestor presentation. 1
See [DE-1, -5]. Specifically, Eshelman alleges that in the course of a proxy contest, Puma posted
a link on its investor-relations website to download an "Investor Presentation" that contained
defamatory statements about Eshelman. Compl. [DE-5]
. On, June 3, .2016, Eshelman served upon Puma his First Request for Production of
Documents, in which Eshelman sought " [a] ll documents relating to the Proxy Contest." Pl.' s Mem.
[DE-150Jat 2; Req. for Produc. of Docs. No. 10 [DE-44-1] at 9. The instructions provided within
the discovery requests defined the term "document" to include a "calendar." [DE-44-1] at 4-5 ~ 12.
Eshelman voluntarily dismissed Auerbach on May 2, 2016. [DE-27].
The term "relating to" was defined as "relating to, reflecting, concerning, referring to, constituting,
embodying, connected to, in connection with, comprising, regarding, evidencing, describing,
identifying, stating, analyzing, containing information concerning, and/or in any way pertaining to
the subject matter of this action." Id. at 5 ~ 13. "Proxy Contest" was defined as "Dr. Eshelman's
October 28, 2015 proposals to Puma's shareholders and all actions undertaken in response to or·
relating to those proposals." Id. at 4 ~ 7. In response to the document request, Puma produced the
relevant and non-privileged individual calendar entries for Auerbach and Senior Investor Dire..ctor
Mariann Ohanesian ("Ohanesian") from July 2015 through February 2016, which "relate on their
face to the topics in Eshelman's discovery requests." [DE-152] at 2, 6.
Eshelman concedes Puma produced calendar entries that on their face spe._cifically reference
either Eshelman or the proxy contest, but contend this is insufficient to satisfy__Puma's discovery
obligations. [DE-150] at 2 .. Eshelman takes the position that Puma must produce Auerbach's _and
Ohanesian's entire calendars for the period in question, reasoning there may be relevant calendar
entries that do not expressly reference the proxy contest or Eshelman. Id. ' Eshelman seeks to. use
the calendars as part of his deposition questioning of Auerbach and Ohanesian in order to ''jog their
memories" as to relevant topics that may have been discussed at meeting~ but that Auerpach., and
Ohanesian simply do not remember based on the "vaguely-titled" calend<;ti" entries .. Id. at 3.
Eshelman contends that when aided by contemporaneous emails and calendars, Auerbach and
Ohanesian may remember the relevance of a meeting that was otherwi_se not apparent. Id.
Puma asserts that it did not limit its review to documents that explicitly mention the proxy
contest or Eshelman, but rather reviewed the calendar entries in context to determine if they could
reasonably be said to relate to the topics identified in Eshelman' s request. [DE-152] at f.; [DE-1522
1] at 1-2; [DE-152-2] at 5-8. Puma contends that it has produced all responsive and non-privileged
documents, discharging its duty to respond to the discovery request, and that producing the calendars
in their entirety would necessarily result in the production of entries that are confidential, personal,
and unrelated to the claims and defenses in this case. [DE-152] at 3-4, 6.
Standard of Review
Rule 26 of the Federal Rules of Civil Procedure provides the general rule regarding the scope
of discovery: "Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party's claim or defense and proportional to the needs of the case .... " Fed. R. Civ. P. 26(b)(l).
"Relevancy under this rule has been broadly construed to encompass any possibility that the
information sought may be relevant to the claim or defense of any party." Equal Emp 't Opportunity
Comm 'n v. Sheffield Fin. LLC, No. 1 :06CV00889, 2007 WL 1726560, at *3 (M.D.N.C. June 13,
2007) (internal quotation marks, alterations, and citations omitted); Mainstreet Collection, Inc. v.
Kirkland's, Inc., 270 F.R.D. 238, 240 (E.D.N.C. 2010) ("During discovery, relevance is broadly
construed 'to encompass any matter that bears on, or that reasonably could lead to other matter that
could bear on, any issue that is or may be in the case."') (quoting Oppenheimer Fund., Inc. v.
Sanders, 437 U.S. 340, 351 (1978) (further citations omitted)). However, "[t]he court may, for good
cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense[.]" Fed. R. Civ. P. 26(c)(l); see Sheffield Fin. LLC, 2007 WL 1726560,
at *3 (citing Fed. R. Civ. P. 26(c)); McDougal-Wilson v. Goodyear Tire & Rubber Co., 232 F.R.b.
246, 249 (E.D.N.C. 2005) ("The court has the discretion to protect a party from "oppression" or
"undue burden or expense."). "When the discovery sought appears relevant ... the party resisting
the discovery has the burden to establish the lack of relevance by demonstrating that the requested
discovery (1) does not come within the broad scope ofrelevance as defined under ... Fed. R. Civ.
P. 26(b)(l), or (2) is of such marginal relevance that the potential harm occasioned by discovery
would outweigh the ordinary presumption in favor of broad disclosure." Sheffield Fin. LLC, 2007
WL 1726560, at *3 (quoting Garrettv. Sprint PCS, No. 00-2583-KHV, 2002 WL 181364, at *2 (D.
Kan. Jan. 31, 2002)). The district court has broad discretion in determining relevance for discovery
purposes. Watson v. Lowcountry Red Cross, 974 F.2d 482, 489 (4th Cir. 1992).
In support of his motion, Esheh:pan argues that Auerbach and Ohanesian have communicated
with numerous people about Eshelman verbally and by email. [DE-150] at 1. According to
Eshelman, Puma claimed that Auerbach and Ohanesian were unable to recall whether Eshelman was
discussed during meetings for which the calendar entries do not expressly mention Eshelman. Id.
at 3. Eshelman argues that this confirms there are "almost certainly calendar entries with vague titles
that reflect meetings during which Dr. Eshelman was discussed, but which Puma has refused to
produce." Id. Eshelman contends further that "witnesses typically have great difficulty remembering
the details of conversations ... that occurred several years ago" iftheir memories are not refreshed
with contemporaneous emails or calendars. Id. Eshelman reasons that he should therefore be
permitted to "jog their memories" by putting the entire calendar before Auerbach and Ohanesian and
match "vaguely-titled calendar entries with their emails about Eshelman." Id. Finally, Eshelman
asserts that "[b]ased on Auerbach's and Ohanesian's hostile and vulgar written comments about
Eshelman, there is ample reason to believe [they] had numerous conversations and meetings during
which they expressed their spite and hostility toward Dr. Eshelman," which Eshelman claims is
relevant to demonstrate Puma's actual malice. Id. (emphasis omitted).
The relevant documents at issue are the calendar entries related to the proxy context. Puma's
response satisfies Eshelinan's discovery request for documents related to a specific topic, where
Eshelman did not request entire calendars for a defined period. Based on Puma's description that
Auerbach and Ohanesian cannot recall whether Eshelman was discussed outside of specific calendar
entries, Eshelman speculates that there are calendar entries that would jog their memories of
information responsive to the discovery request. Indeed, based on the circumstances described by
the parties, there may be no entries at all. However, Puma has indicated that it reviewed the
calendars in context and that there are no calendar entries not produced that Puma believes relate to
the proxy contest. Puma's response satisfies-its burden fo· produce responsive discovery. See
Benjamin v. Sparks, No. 4:14-CV-186-D, 2017 WL 1497930, at *4 (E.D.N.C. April 26, 2017)
(holding that request seeking production of all diaries, journals or calendars· was overbroad and
sought irrelevant information, whereas all diary, journal and calendar entries concerning the
allegations· in the amended complaint were more appropriate in scope). Additionally, where
Eshelman appears to.have also received in discovery emails related to Eshelman or the proxy contest
about which he seeks to examine Auerbach and Ohanesian, the marginal value of producing the
calendars in their entirety is outweighed by the overbreadth of such a production, which would
include matters of a confidential, personal, and otherwise irrelevant nature. See Sheffield Fin., 2007
WL 1726560, at *3. Accordingly, the court finds that Puma sufficiently responded to Eshelman's
request for calendars relating to the proxy contest.
For the reasons set forth above, Eshelman's motion to compel [DE-149] is denied.
SO ORDERED, the l"I day of September 2017.
. United States Magistrate Judge
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