Shipley v. Forest Laboratories

Filing 69

MEMORANDUM DECISION AND ORDER granting in part and holding in abeyance in part 48 Motion to Compel; denying in part and holding in abeyance in part 55 Motion for Protective Order. Signed by Magistrate Judge Dustin B. Pead on 8/29/14 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION

ELAINE J. SHIPLEY, Individually, as
Personal Representative of the Estate of Kurt
Philip Shipley, Deceased, and as Next Friend
of Jordon John Shipley, Brynn Shipley, Jason
Kent Shipley, Jensen Kurt Shipley, minors,
Plaintiff,

MEMORANDUM DECISION
Case No. 1:06-cv-00048-TC-DBP
District Judge Tena Campbell

v.

Magistrate Judge Dustin Pead

FOREST LABORATORIES,
Defendant.

I.

INTRODUCTION

On April 24, 2006, Plaintiff filed this products liability wrongful death action. (Dkt. No. 1.)
Plaintiff alleges that Defendant designed, manufactured, and marketed Lexapro, a defective antidepressant that led Plaintiff’s husband to commit suicide. Plaintiff also alleges that Defendant
failed to provide adequate suicide warnings for Lexapro.
On July 31, 2014, Plaintiff filed a motion to compel Defendant to produce paper documents
and electronically stored information (“ESI”) from custodial files belonging to four of
Defendant’s sales representatives who Plaintiff plans to depose. (Dkt. No. 48.) These
representatives contacted the healthcare providers who treated Plaintiff’s husband. On August
12, 2014, Defendant filed a cross-motion for protective order asking the Court to find it was not
required to produce custodial ESI. (Dkt. No. 55.)

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On Tuesday, August 26, 2014, this Court held a hearing on the parties’ motions. For the
reasons discussed at the hearing and set forth below, the Court GRANTS in part and HOLDS
IN ABEYANCE in part Plaintiff’s motion, and DENIES in part and HOLDS IN ABEYANCE
in part Defendant’s motion.
II.

PROCEDURAL HISTORY

On June 14, 2006, this case was transferred to the Eastern District of Missouri as part of an
MDL involving fifty-seven cases. (Dkt. No. 5.) The MDL was formed “to consolidate for
pretrial and discovery purposes cases alleging that Celexa or Lexapro . . . could cause individuals
to commit suicide.” (Dkt No. 54 at 3.)
A. MDL Procedural History
On December 21, 2006, the MDL court issued a Case Management Order for use as a
discovery form for all cases pending in the MDL. (Dkt. No. 48-4, Ex. E.) On February 29,
2008, Defendant signed the Case Profile Form (“CPF”) pertinent to this case. (Dkt. No. 48-1,
Ex. B.)
Within the CPF, Defendant identified all its sales representatives who contacted the
healthcare providers who prescribed Plaintiff’s husband Lexapro. (Id., Section B.1.i.a.)
Defendant identified Collings, Fisher, Fullmer, and Kotter as sales representatives. (Id.)
Pertinent here, CPF Section B.1.iii asked Defendant:
For each sales representative and medical liaison identified above, please identify
and produce all documents from his/her custodial files, including all traditional
‘paper’ documents, and computer files pertaining to Lexapro . . . and any issue
regarding suicide, suicidality, akathisia, motor akathisia, CNS stimulation, central
nervous system stimulation, agitation, irritable, irritability, tremor, emotional
lability, insomnia, insomnolence, nervousness, anxiety, fidgety, fidgeting,
restless, restlessness, wired, excited, excitement, and/or efficacy in the adolescent
or adult population.
(Dkt. No. 48-1, Ex. B, Section B.1.iii) (emphasis added.)
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Defendant responded to the aforementioned CPF request as follows:
The parties agree that Defendants will do the following in compiling information
responsive to the request made in this section (B)(1)(iii): (a) instruct current sales
representatives, and ask former sales representatives, to look through their paper
files for materials pertaining to the terms identified in the preceding sentence; and
(b) with respect to electronic data, Defendants will retrieve active electronic data
pertaining to current sales representatives and search that data for the terms
identified in the preceding sentence using EnCase. Defendants are not required to
image any hard drives or restore or search any back-up tapes in responding. The
parties agree that responsive information will be produced 45 days before each
sales representative’s deposition and not by February 15, 2008.
(Id.) (emphasis added.)
Counsel representing other plaintiffs in the MDL deposed “[a] few” of Defendant’s sales
representatives, but [P]laintiff’s counsel in this case never asked to depose a sales representative
in the MDL.” (Dkt. No. 54 at 4.) At the hearing before this Court, Defendant specified that only
three sales representatives were deposed in the MDL proceedings.
B. Remand Procedural History
On February 5, 2009, the MDL court remanded this case back to the Utah District Court.
(Dkt. No. 48-5, Ex. F.) On March 7, 2014, Magistrate Judge Furse set the parties’ fact discovery
deadline to April 30, 2014. (Dkt. No. 30.) On April 25, 2014, this Court extended fact discovery
to June 30, 2014. (Dkt. No. 32.) On June 26, 2014, this Court extended the fact discovery
deadline to July 30, 2014. (Dkt. No. 40.)
On May 30, 2014, when the fact discovery deadline was still June 30, 2014, Plaintiff’s
counsel contacted Defendant’s counsel to schedule depositions for Defendant’s sales
representatives Collings, Fullmer, Kotter, and Fisher. (Dkt. No. 48-6, Ex. G.) Plaintiff also
demanded that, prior to the depositions, Defendant produce the paper documents and custodial
ESI described in CPF Section B.1.iii.

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On June 25, 2014 and July 2, 2014, Defendant’s counsel responded to Plaintiff’s deposition
and document request. Defendant agreed that Plaintiff could depose the sales representatives.
Defendant’s counsel stated that Defendant would direct its current sales representatives Collings
and Fullmer to search their paper documents as required in the CPF. (Dkt. No. 48-2, Ex. C.)
Kotter and Fisher no longer worked for Defendant. Therefore, Defendant would ask them to
search their paper documents as required in the CPF. (Id.)
However, Defendant’s counsel refused Plaintiff’s request for ESI as untimely. Defendant
emphasized that, given the then-June 30, 2014 fact discovery deadline, Defendant would not
have 45 days as mandated by the CPF to produce the ESI. (Id.)
On July 25, 2014, the parties agreed that Plaintiff could depose sales representatives Collings
and Fullmer on August 15, 2014. (Dkt. No. 48-10, Ex. K.) However, this Court stayed those
depositions pending its resolution of the motions below. (Dkt. No. 57.)
III.

PLAINTIFF’S MOTION TO COMPEL & DEFENDANT’S CROSS-MOTION
FOR PROTECTIVE ORDER
A. Whether Custodial Files for Former Sales Representatives Required

Defendant argues that, under the CPF, Defendant bears no obligation to produce custodial
ESI for Fisher and Kotter as they no longer worked for Defendant when Plaintiff requested their
depositions. (Dkt. No. 54 at 11-12.) Admittedly, “with respect to electronic data,” the CPF only
requires Defendant to “retrieve active electronic data pertaining to current sales
representatives . . . .” (Dkt. No. 48-1, Ex. B, Section B.1.iii) (emphasis added.)
However, at the August 26, 2014 hearing before this Court, Defendant conceded that it had
preserved custodial files for its sales representatives back in 2008 when Fisher and Kotter still
worked for Defendant. The Court interprets Defendant’s preservation actions to mean that the
CPF imposed an obligation to produce custodial ESI files for sales representatives who were
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currently working for Defendant in 2008 when Defendant signed the CPF. Therefore, this Court
believes Defendant bears a continuing obligation under the CPF to produce the custodial ESI for
Fisher and Kotter.
B. Whether Plaintiff’s Request for Custodial Files is Untimely
Defendant also opposes Plaintiff’s motion to compel because Plaintiff “misinterprets” the
CPF. (Dkt. No. 54 at 2.) Defendant notes that, unlike Defendant’s counsel, Plaintiff’s counsel in
this case “were not involved in [] negotiations of the [CPF].” (Dkt. No. 56 at 1.) Defendant
claims that, in the negotiations, all “plaintiffs in the MDL acknowledged it would not be feasible
(or necessary) for [Defendant] to cull, process, and produce custodial information for hundreds
of sales representatives that might never be deposed.” (Dkt. No. 54 at 5.) Consequently, the
parties agreed that a plaintiff’s request to “depose a given sales representative triggered
[Defendant’s] obligation to cull, process, and produce the information 45 days in advance of the
sales representative’s deposition.” (Id.)
When Plaintiff requested sales representatives’ depositions on May 30, 2014, Defendant did
not have 45 days to produce custodial files before the then-June 30, 2014 fact discovery
deadline. Given this lack of time, Defendant opposes Plaintiff’s motion to compel as untimely.
The Court shares Defendant’s concerns about Plaintiff’s decision to delay requesting
depositions until May 30, 2014. However, the Court rejects Defendant’s timeliness argument
because the Court can remedy any untimeliness issues by extending the fact discovery deadline
in this case.
C. Whether Undue Burden of ESI Production Outweighs Benefit of Production
“The court may, for good cause, issue an order to protect a party . . . from . . . undue burden
or expense” by “forbidding the . . . discovery . . . .” Fed. R. Civ. P. 26(c)(1)(A). Additionally,

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“[a] party need not provide discovery of [ESI] from sources that the party identifies as not
reasonably accessible because of undue burden or cost.” Id. 26(b)(2)(B).
i.

Likelihood that ESI Exists

Defendant moves for a protective order because “[t]he likelihood the custodial ESI contains
discoverable information [] is slim” when “compared with the burden of producing that data and
[P]laintiff’s years-long delay in seeking the depositions . . . .” (Dkt. No. 54 at 2.)
Defendant reiterates that Plaintiff’s husband committed suicide on April 29, 2004. Notably,
Defendant’s sales force did not receive company “e-mail accounts until late 2004, months after”
the suicide. (Id. at 12.) In fact, the sales force “did not receive company laptops until the JuneJuly 2005 time frame.” (Id.) “Prior to that, sales representative used Jornada PDA devices to
store and download” company data. (Id.) The Jornada devices had no e-mail capability, and
could only store and download sales call information, which Defendant “already has produced.”
(Id.) Defendant also produced call notes, as well as “sales and marketing materials it provided to
its sales representatives to use with physicians . . . and labeling (package inserts) for
Lexapro . . . .” (Dkt. No. 54 at 13-14.)
Plaintiff argues that the information produced by Defendant does not “include any . . .
documentation related to specific information provided to the sales representatives by
[Defendant].” (Dkt. No. 65 at 4.) For instance, the information produced does not include what
sales representatives were instructed to say in response to healthcare providers’ questions about
suicide risks. (Id.) This concerns Plaintiff because one of Defendant’s sales representatives
deposed in another case admitted that Defendant instructed her not to proactively discuss
Lexapro’s side effects. (Id.)

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ii.

Burden of Producing ESI Given Low Likelihood Relevant ESI Exists

Regarding undue burden, Defendant notes “[t]his case has been pending for more than seven
years and [P]laintiff had more than five years to request depositions of [Defendant’s] sales
representatives. She opted not to do so and her untimely and burdensome discovery demands
should be rejected as a result.” (Dkt. No. 54 at 3.)
Defendant explains that producing the custodial ESI at this point would take “at least weeks,
and perhaps months . . . .” (Id. at 9.) Defendant would have to cull the ESI, it would then be
“processed by a vendor (the search terms run across the corpus of data culled by [Defendant],”
and then Defendant would have to manually review the results for privilege “document by
document, and page by page.” (Id.) At the hearing, Defendant feared it would cost thousands of
dollars to run this full search.
The Court shares Defendant’s burden concerns in light of the allegedly low likelihood that
responsive ESI exists. However, the Court is also concerned by Defendant’s admission at the
hearing that it does not know the volume of responsive documents that exist, how long it will
take to process them, and how much such a process will cost. The Court cannot speculate about
Defendant’s burden without more information.
IV.

ORDERS

The Court GRANTS in part and HOLDS IN ABEYANCE in part Plaintiff’s motion to
compel. (Dkt. No. 48.) The Court DENIES in part and HOLDS IN ABEYANCE in part
Defendant’s cross-motion for protective order. (Dkt. No. 55.)
The Court ORDERS Defendant to run a preliminary search of the custodial files belonging
to sales representatives Collings, Fullmer, Kotter, and Fisher using the search terms and temporal
time limits provided in the CPF. That is, Defendant must run a preliminary search for responsive

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documents containing the search terms in CPF Section B.1.iii and the temporal time limit in CPF
Section B.1.i. of January 1, 2001 until three (3) months after Plaintiff’s husband committed
suicide.
Within two (2) weeks from the date of this order, Defendant must submit a certification to
the Court identifying the volume of responsive documents identified in its preliminary search
and the approximate cost Defendant will incur in running a full search through its vendor and
through privilege review.
If Defendant fails to file a certification, the Court will grant in full Plaintiff’s motion to
compel. If Defendant certifies that no responsive documents were identified, Defendant must
serve this certification on Plaintiff. When the Court receives Defendant’s certification, the Court
will determine whether the burden of producing such custodial documents outweighs the benefit
of production.
If the Court determines that Defendant must produce custodial documents in compliance with
the CPF, Defendant must produce them by October 15, 2014. The Court encourages the parties
to conduct the sales representatives’ depositions soon thereafter, but no later than December 1,
2014.
The Court extends the parties’ fact discovery deadline to December 1, 2014. The Court
extends the parties’ dispositive motion deadline to January 2, 2014. The Court encourages the
parties to file dispositive motions far in advance of this deadline. All other deadlines remain the
same.
Dated this 29th day of August, 2014.

By the Court:

Dustin Pead
United States Magistrate Judge
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