Retractable Technologies, Inc. et al v. International Healthcare Worker Safety Center
Filing
16
MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 8/11/11. (hnw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
RETRACTABLE TECHNOLOGIES, INC. and
THOMAS J. SHAW,
Movants,
MISC. NO. 3:11-MC-28
MEMORANDUM OPINION
v.
INTERNATIONAL HEALTHCARE WORKER
SAFETY CENTER
Respondent.
JUDGE NORMAN K. MOON
Respondent International Healthcare Worker Safety Center (“Center”) comes before the
court seeking reconsideration of this court’s order of June 30, 2011, compelling the Center to
comply with a subpoena duces tecum served upon it in connection with an action pending in the
Eastern District of Texas, Retractable Technologies, Inc. v. Becton, Dickinson and Co., No.
2:08-cv-00016 (E.D. Tex. filed 2008) (the “underlying action”). The Center further moves to
quash the said subpoena pursuant to Rules 26 and 45. As the Center fails to make a sufficient
showing that reconsideration is proper, I will deny the motion. (docket no. 9).
I.
Retractable Technologies, Inc., (“Retractable Technologies”), the plaintiff in the
underlying action, makes and sells a safety syringe that is designed to eliminate contaminated
accidental needlestick injuries. Becton, Dickinson and Company (“BD”), the defendant in that
case, is a competitor. The Center, a research group at the University of Virginia, has
acknowledged that it receives about one third of its outside funding from BD, and that BD has
endowed a professorship at the Center. Among other things, the Center collects data on
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accidental needlestick injuries from hospitals through the Exposure Prevention Information
Network (“EPINet”).
Retractable Technologies brought the underlying action as a combined action for patent
infringement, false advertising, antitrust violations, and related state law claims. The patent
claims were severed and tried separately. Among the issues in the underlying action are the
soundness of certain safety claims that BD has made about its products, and any efforts that BD
may have taken to co-opt or suppress research related the efficacy of its products. Information
concerning product-specific injury rates, the Center’s data collection practices, and any influence
that BD may have had on such practices appears to be germane to the underlying action.
Retractable Technologies filed the subpoena at issue in this case with the intention of uncovering
information concerning those issues.
Retractable Technologies served the Center with the subpoena in issue on March 16,
2011. By March 28, 2011, the deadline to produce documents and data in accordance with the
subpoena lapsed. As of that date, the Center had not produced any of the documents sought,
filed objections, or sought other relief that might have been available pursuant to Rules 45 and
26. Accordingly, Retractable Technologies filed a motion to compel on June 9, 2011. On June
17, 2011, the parties agreed, pursuant to the Center’s request, to extend the deadline to file an
opposition to the motion to compel to July 11, 2011. However, the Center did not move for an
extension of time, or otherwise inform the court of the agreement. Considering the motion to
compel unopposed, I granted the relief sought on June 30, 2011, and ordered the Center to
comply with the subpoena. On July 11, 2011, the agreed upon deadline to submit an opposition
lapsed. Then, on July 14, 2011, the Center filed the instant motion for reconsideration. On July
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15, 2011, the deadline to comply with the court’s order on the motion to compel lapsed.
However, the Center did not comply with the order.
II.
The Center bears the burden of showing that reconsideration is justified. See In re A.H.
Robins Co., No. 94-2639, 1996 WL 279077, at *2 (4th Cir. May 28, 1996) (unpublished
opinion). Rules 59(e) and 60(b) govern reconsideration of final orders. Fayetteville Investors v.
Commercial Builders, Inc., 936 F.2d 1462, 1469 (4th Cir. 1991). However, interlocutory orders
are not subject to the strictures of those rules, and may be reconsidered “as justice requires.”
Fayetteville Investors, 936 F.2d at 1473. “Discovery orders are ‘inherently interlocutory’ . . . .”
Nicholas v. Wyndham Int’l., Inc., 373 F.3d 537, 540 (4th Cir. 2004) (citation omitted).
Moreover, the Fourth Circuit has held that an order granting a discovery request in an ancillary
proceeding is not immediately appealable under the collateral order doctrine. See Nicholas, 373
F.3d 537 at 541 (citing MDK, Inc. v. Mike's Train House, Inc., 27 F.3d 116, 120-22 (4th
Cir.1994)). Accordingly, the order on Retractable Technologies’ motion to compel is an
interlocutory order that may be reconsidered “as justice requires.”
In reaching my determination, I may consider, but I am not bound by the factors set forth
in Rule 60(b). See Fayetteville Investors, 936 F.2d at 1470. Under that rule, a court may grant
relief from a judgment or order for, inter alia, excusable neglect. Fed. R. Civ. P. 60(b)(1).
Although “the goal is to reach the correct judgment under law,” I must also be mindful that
“routine reconsideration of interlocutory orders would undermine judicial economy and respect
for the finality of decisions.” Hinks v. Bd. of Educ. of Hartford County, No. WDQ-09-1672,
2010 WL 5087598, at *1 (D. Md. Dec. 7, 2010) (quotation omitted).
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A.
As an initial matter, I observe that the Center could not prevail under the standard
required for relief under Rules 59(e) or 60(b).1 I further note that the Center has repeatedly
missed opportunities to voice its objections to the subpoena in issue. It could have sought relief
as early as March, when service of the subpoena was complete. It could have filed a timely
response to the motion to compel. Rather, it brought the instant motion nearly four months after
being served the subpoena, two weeks after its response to the motion to compel was due under
Local Rule 11(c), three days after it had agreed to file a response to the motion to compel, and
merely six weeks before Retractable Technologies’ expert witness disclosures are due in the
underlying action, on September 5, 2011. Furthermore, it has not complied with this court’s
order of June 30. And it has not produced any documents in accordance with the subpoena.
Standing alone, this conduct counsels strongly against granting the relief sought. See Robinson
v. Wix Filtration Corp LLC, 599 F.3d 403, 413 (4th Cir. 2010) (finding that a party cannot show
“excusable neglect” under Rule 60(b)(1) if it “fails to act with diligence[.]”).
Moreover, the Center has not produced any evidence to support its claims that failing to
grant its motion would (a) jeopardize confidential research; (b) subject the center to overly
burdensome document production; or (c) require disclosure of irrelevant information concerning
BD’s relationship with the Center.
1
Under Rule 59(e), the Fourth Circuit has recognized three grounds for granting relief: “(1) an intervening change
in the controlling law, (2) new evidence that was not available at trial, or (3) that there has been a clear error of law
or a manifest injustice.” Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th Cir. 2010). None of these are
applicable here. In addition, “motions under [Rule 59] may not be used ‘to raise arguments which could have been
raised prior to the issuance of the judgment [.]’” Fernandez-Pineiro v. Bausch & Lomb, Inc., No. 10-1566, 2011
WL 1654347, at *3 (4th Cir. Apr. 29, 2011) (citing Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th
Cir. 1998)). Rule 60(b) allows for reconsideration of a final order where the movant shows “excusable neglect” or
“any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(1), (6). In seeking reconsideration under the catch-all
provision, the movant must show “extraordinary circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). In
seeking reconsideration under the “excusable neglect” standard, a party cannot succeed if it “fails to act with
diligence. . . .” Robinson, 599 F.3d at 413.
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1.
The Center contends that paragraphs 1-21 of the subpoena seek confidential research that
should not be disclosed. Pursuant to Rule 45(c)(3)(B), on motion of a party, the court “may”
quash a subpoena if it requires “disclosing . . . a trade secret or other confidential research.” In
applying this rule, courts have adopted a balancing approaching, weighing the need for the
confidential information against the harm that would result from disclosure. See Cusumano v.
Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998); Dow Chemical Co. v. Allen, 672 F.2d 1262,
1270 (7th Cir. 1982).
Where, as here, academic research is dependent upon promises of confidentiality to
research participants, courts have been solicitous of Rule 45(c)(3)(B) movants. See id.
However, quashing a subpoena is inappropriate where confidentiality interests can be
safeguarded by means of a protective order. See, e.g., Deitchman v. E.R. Squibb & Sons. Inc,
740 F.2d 556, 559-60 (7th Cir. 1984). A protective order has been filed in the underlying case.
Paragraph I(A) of that order provides in relevant part that “any third party who objects to making
discovery except pursuant to a Protective Order shall have the right to designate as
CONFIDENTIAL any document or other tangible items relevant to this litigation[.]” Paragraph
II sets forth restrictions on use of items marked “CONFIDENTIAL.” The Center may seek
refuge in the protective order, and it has offered no cogent argument that the protective order
would be ineffective in safeguarding its interests. Therefore, it appears that any harm to
confidentiality interests that would result from compliance with the subpoena in this case would
be minimal.
At a hearing on the instant motion, counsel for the Center proffered that the Center does
not “systematically” track product-specific data of the type that Retractable Technologies seeks,
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or “require” hospitals to provide such information. It therefore argues that the discovery sought
is irrelevant to the underlying action, and that the balance tips in favor of protecting
confidentiality. This objection is not well taken. There is no dispute that the form the Center
sends to hospitals to collect EPINet data contains a blank for the specific product involved in
reported needlestick accidents. Moreover, the database tool that the Center distributes to
hospitals contains a field for the product type. Furthermore, it is evident that the Center has
produced memoranda discussing product-specific data in the past. See Opp’n Br. Exs. A-8, A-9,
A-10. It is immaterial whether the Center systematically tracks, or “requires” this data, because
it clearly possesses it to some extent. It therefore appears that the subpoena is “reasonably
calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1).
In light of the foregoing, and in consideration of the Center’s delay in raising any
objection, the Center’s confidentiality arguments fail to show that justice requires
reconsideration of the motion to compel.
2.
The Center also objects that the discovery sought would be unduly burdensome because
the subpoena seeks an overly broad set of documents, speeches, and presentations that the Center
has produced over the course of its twenty-year history. “On timely motion, the issuing court
must quash or modify a subpoena that . . . subjects a person to undue burden.” Fed. R. Civ. P.
45(c) (3)(A)(iv). Although the term “timely” is not defined, four and a half months after the
return date of the subpoena is clearly not timely. On the other hand, a court “may, on motion,
quash or modify the subpoena” for the reasons set forth in Rule 45(c)(3)(B). However, these
reasons do not include undue burden.
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In any event, the Center has not shown any undue burden.2 It contends that the
subpoena’s overbreadth is evident on its face, and that the Center need not provide any additional
evidence of the burden it would have to confront if ordered to comply. I disagree. First, the
categories of documents sought pertain to needlestick injuries and BD’s relationship with the
Center, which are of evident importance to the underlying action. Second, the Center keeps
much of its data in electronic files, which would take little effort to produce. Finally, the Center
has provided no evidence of the quantity of documents sought. Twenty years worth of
documents may be thousands, or hundreds of thousands of documents, depending on a host of
factors about which I might only speculate. But I am constrained to rest my decision on the
evidence, and there is simply no evidence of the burden that the Center faces. The conclusory
assertion that the discovery sought is unreasonable will not carry the Center’s motion.3
3.
Finally, the Center contends that requests related to the Center’s relationship with BD are
irrelevant to the underlying action. It protests that it is wholly free from the influence of BD.
But Retractable Technologies intends to contest precisely this point, and it need not take the
Center at its word. Furthermore, there is reason to believe that the Center’s claim may not bear
scrutiny. As noted, BD provides nearly a third of the outside funding that the Center receives,
and has endowed a chair at the Center.4 In addition, one of the memoranda that the Center
produced in earlier discovery includes what appears to be an inadvertently copied note stating
“Per Bob Atkins,” who is an attorney for BD, “[m]ay use to attempt to show collection of brand
2
While the Center correctly notes that Rule 45(c)(1) ordinarily places the burden on the party seeking discovery to
avoid exposing persons to undue burden, this matter is before the court on the Center’s motion for reconsideration.
3
The Center also seeks to shield itself from discovery because it has “no dog in the fight” as a non-party to the
underlying action. See Reply Br. at 5 (citing Cusumano, 162 F.3d at 717). However, for reasons touched upon in
part C, below, I am not persuaded by the Center’s claim that it is a disinterested party
4
The Center protests that BD does not provide the majority of its funding, and that BD’s competitor has also
endowed a chair at the Center. But it is clear that the Center has a significant stake in maintaining a good
relationship with BD given the substantial support that BD provides.
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specific data.” Opp’n Br. Ex. A-9. It is therefore clear that the Center has collaborated with
BD’s attorneys. Moreover, for reasons that have not been explained, BD’s trademarks and
copyrights appear on many EPINet forms. As the extent to which BD may be collaborating with
the Center is one of the very issues that Retractable Technologies intends to explore in the
underlying litigation, Retractable Technologies may seek discovery concerning the relationship
between BD and the Center. See Fed. R. Civ. P. 26(b)(1).
III.
For the foregoing reasons, the Center’s motion for reconsideration will be denied.
The Clerk of the Court is directed to send a certified copy of this opinion and the
accompanying order to all counsel of record.
Entered this _____ day of August, 2011.
11th
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