Eshelman v. Auerbach et al

Filing 305

ORDER denying 276 Motion to Compel. Signed by Chief Judge James C. Dever III on 10/2/2018. (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTII CAROLINA
SOUTHERN DMSION
No. 7:16-CV-18-D

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FREDRIC N. ESHELMAN,
Plaintiff,

v.
PUMA BIOTECHNOLOGY, INC.,
Defendant.

ORDER

On March 12,2018, Fredric Eshelman ("Eshelman") moved to compel Puma Biotechnology,
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Inc. ("Puma") to produce complete, unredacted deposition transcripts, deposition videos, and
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deposition exhibits relating to the depositions of Puma witnesses in Hsingching Hsu v. Puma
Biotechnology. Inc., No. 8:15-cv-00865-AG-JCG (C.D. Cal.) [D.E. 276]. Eshelman also filed a
memorandum in support and several exhibits [D.E. 277]. On March 26, 2018, Puma responded in
opposition [D.E. 285].
"A party who has made a disclosure under Rule 26(a}-or who has responded to an
'interrogatory, request for production, or request for admission-must supplement or correct its
disclosure response in a timely manner ifthe party learns that in some material respect the disclosure
or response is incomplete or incorrect ...." Fed. R. Civ. P. 26(e). Eshelman argues that the
documents from the Hsu case are relevant because (1) Puma witnesses Alan Auerbach and Charles
Eyler reference Eshelman in their testimony in the Hsu case; (2) Eshelman needs the deposition
materials to rebut Puma's efforts to falsely smear him as an aggressive outlier whose concerns about
Puma were unfounded; and (3) the evidence is relevant to impeach Auerbach and Eyler. See [D.E.
277] 3-4.
Discovery in this case closed on September 22, 2017. See [D.E. 54]. Charles Eyler was
deposed in the Hsu case on September 21, 2017. Alan Auerbach was deposed in the Hsu case on

January 28 and 29, 2018. Puma provided Eshelman "37 pages of substantive excerpts from Hsu
deposition materials and the complete word indices." [D.E. 285] 7. "The excerpts contain every
mention of Dr. Eshelman that occurred during the deposition, and where appropriate, the following
page or pages to ensure the production oftestimony related to Dr. Eshelman." ld. Puma also invited
Eshelman's counsel to use ''the indices to indicate additional pages they wished to inspect." Id.
Eshelman's counsel declines Puma's invitation and filed the motion to compel.
In this case, Eshelman deposed Auerbach twice, deposed Eyler once, and otherwise engaged
in extensive discovery. Puma's duty to supplement is not unlimited and infinite, and Puma has met
its obligation in this case. See Thompson v. Ret. Plan for Emps. of S.C. Johnson & Sons. Inc., No.
07-CV-1047, 2010 WL 2735694, at *1 (E.D. Wis. July 12, 2010) (unpublished); Dong Ah Tire &
Rubber Co. v. Glasform.s. Inc., No. C06-3359JFRS, 2008 WL 4786671, at *2 (N.D. Cal. Oct. 29,
2008) (unpublished); Fed. R. Civ. P. 26(e)(1). To adopt Eshelman's view of Rule 26(e)(1) would
create a substantial burden on litigants that outweighs the benefits given the alternative means of
discovering relevant evidence. See Fed. R. Civ. P. 26(b)(1). Moreover, good cause does not exist
to modify the scheduling order. See Fed. R. Civ. P. 16(b)(4). Accordingly, the cotirt denies
Eshelman's motion to compel.
In sum, the court DENIES Eshelman's motion to compel [D.E. 276].
SO ORDERED. This __t__ day of October 2018.

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