Braun et al v. Medtronic Sofamor Danek et al

Filing 229

MEMORANDUM DECISION denying 206 Motion for Ruling on MSD's Redesignation of Documents. Signed by Magistrate Judge Dustin B. Pead on 05/01/2013. (tls)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

JOHN T. BRAUN, MD

MEMORANDUM DECISION & ORDER

Plaintiff,

Case No. 2:10-cv-1283

v.

United States District Court
Judge Robert Shelby

MEDTRONIC SOFAMOR DANEK, INC.,
Magistrate Judge Dustin Pead
Defendants.

Currently pending before the Court, pursuant to Paragraph six (6) of the parties’
Stipulated Protective Order, is Plaintiff John T. Braun’s (Dr. Braun) Motion For Ruling On
Medtronic Sofamor Danek Incorporated’s (Medtronic) Re-designation Of Documents (Document
Number 206).1
Background
In July of 2012, Medtronic began its initial production of documents in this case.
Document production continued through November 2012, during which time more than 89,000
pages of documents were produced. Thereafter, on February 28, 2013, Medtronic issued a letter
informing Dr. Braun that it intended to re-designate 567 of its documents, consisting of over
10,409 pages, to “Attorney Eyes Only” (AEO)----the highest designation possible under the

1

The parties’ Stipulated Protective Order provides that if a party objects to a designation
and the parties are unable to mutually resolve the objection, the objecting party “may apply for a
ruling from the Court determining whether the materials in question are properly designated
under the terms of the Protective Order.” (Document Number 51, ¶6).

parties’ Stipulated Protective Order (Document Number 206-1).2 Along with the letter,
Medtronic provided Dr. Braun with two CD-ROMs containing the re-designated documents.
(Document Number 217-1).
Through his currently pending motion, Dr. Braun objects to re-designation of the
produced documents, arguing that Medtronic waived its right to alter its designations and that
any re-designation, at this point, would be highly prejudicial and place an undue burden upon Dr.
Braun (Document Number 206). Medtronic counters that the documents at issue qualify for
AEO status, and therefore any burden placed upon Dr. Braun is outweighed by the harm that
Medtronic could suffer from the disclosure of its confidential and sensitive business information
(Document Number 217).
Analysis
The parties’ Stipulated Protective Order does not address the re-designation of
documents, nor provide any guidance on the timing for, or waiver of, re-designations (Document
Number 51). While Dr. Braun argues that because re-designation is not contemplated under the
2

To qualify for AEO designation, a document must “contain confidential, commercially
sensitive information, or proprietary information related to any of the following: (1) sensitive
technical information, including current research, development, and manufacturing information
and patent prosecution information, (2) sensitive business information, including highly sensitive
financial or marketing information and the identity of suppliers, distributors and potential or
actual customers, (3) competitive technical information, including technical analyses or
comparisons of competitor’s products, (4) competitive business information, including nonpublic
financial or marketing analyses or comparisons of competitor’s products and strategic product
planning, or (5) any other confidential information the disclosure of which to the qualified
persons listed in paragraph 8a and b, but not 9a, the producing party reasonably and in good faith
believes would likely cause harm, including information in written, oral, electronic, graphic,
pictorial, audiovisual, or other form, whether it is a document, information contained in a
document, item produced for inspection, information revealed during deposition, information
revealed in an interrogatory answer or otherwise (Document Number 51, ¶2).
2

Order it is not permitted, the Court disagrees. Further, the Court finds that there is no challenge
to the re-designation of documents per se since Dr. Braun does not allege that, based upon their
content, the documents do not qualify for AEO status. Instead, Dr. Braun argues on procedural
grounds, that re-designation, at this juncture, is improper and prejudicial. Finding that there is no
objection to Medtronic’s assertion that the relevant documents contain information relating to
strategies, pricing information, market analyses, projects under development and other sensitive
commercial information, the Court concludes that, based upon content, the documents qualify for
and should be re-designated as AEO.
In so ruling, the Court is not unsympathetic to the burden placed upon Dr. Braun as a
result of Medtronic’s failure to initially designate the documents as AEO. Medtronic waited
nearly four months--- from the time of Tommy Carls’ November 5, 2012, deposition when
Medtronic alleges that it first became aware of the re-designation issue, to February 28, 2013, the
day that Medtronic informed Dr. Braun it would be re-designating documents---before advising
Dr. Braun that it intended to re-designate over 10,000 pages of documents (Document 217-4).
And, while Medtronic notes that over half of the documents at issue were produced as recently as
February 1, 2013, Dr. Braun still had four weeks within which to review, rely upon and
incorporate those documents into his case preparation before he was notified of the redesignation.
Accordingly, the Court is persuaded that any burden stemming from untimely redesignations should be borne by Medtronic as the designating party (Document Number 217).
The Court hereby orders that Dr. Braun submit an itemized statement of costs associated with re-

3

designation of the produced documents.3 The itemization should be detailed and specifically
describe work done and expenses generated that are related to re-designation of the relevant
documents to AEO status. Upon consideration, the Court shall rule accordingly and require
Medtronic to pay for reasonable costs directly associated with Dr. Braun’s re-designations.
Order
1. Dr. Braun’s Motion For Ruling On MSD’s Re-designation Of Documents, requesting
that all re-designations be deemed improper and that the initial designations for the documents at
issue be retained is DENIED (Document Number 206).
2. Dr. Braun is Ordered to provide a statement of costs to the Court related to his redesignation efforts. The statement should be detailed and specifically describe work done and
expenses related to re-designation of the relevant documents to AEO. After consideration, the
Court shall rule accordingly.

DATED this 1st day of May, 2013.

__________________________________
Dustin Pead
United States Magistrate Judge

3

Dr. Braun’s predicts that re-designation will require him to: identify over 10,000 pages
of documents, determine how the document has been used or relied upon, determine which
deposition exhibits have been re-designated, substitute a re-designated version of the documents,
and re-create trial preparation or other documents that incorporate information in a way that
conforms with the new designation (Document Number 221).
4