United States District Court, N.D. Oklahoma
IN RE GENENTECH HERCEPTIN (TRASTUZUMAB) MARKETING AND SALES PRACTICES LITIGATION
OPINION AND ORDER
F. JAYNE, MAGISTRATE JUDGE.
States District Judge Terence Kern issued several written
discovery rulings between the time of United States
Magistrate Judge Lane Wilson's resignation and the
undersigned's appointment. On September 12, 2017, Judge
Kern expressed his view that his most recent discovery ruling
would “necessitate a significant extension of the
current deadlines.” ECF No. 263 at 6. Judge Kern
ordered the parties to meet and confer regarding scheduling
and, if they could not agree, submit separate briefs
regarding their proposed amended deadlines. The parties could
not agree and submitted their proposals. ECF Nos. 266, 267.
Judge Kern referred these submissions to the undersigned for
the purpose of entering an amended schedule governing the
remainder of Phase I. The undersigned heard oral argument,
ordered supplemental briefing on Plaintiffs' proposed
interim deadlines, and took all scheduling issues under
Extension of Phase I Schedule
requested that Defendant complete its written document
production by November 22, 2017, while Defendant requested
six months from the date of entry of the new schedule. The
Court accepts Defendant's representation that it needs
six additional months to complete production but will start
these six months from the date Defendant filed its proposed
schedule on September 22, 2017. Therefore, Defendant shall
have until March 23, 2018, to complete its written document
Court adopts Defendant's proposal for five reasons.
First, the Court finds that Defendant has proceeded at a
reasonable pace of production from the time it received Judge
Kern's May 8, 2017, Order until the present. With respect
to the most recent production ordered by Judge Kern on
September 12, 2017, Defendant submitted a chart showing the
collection status for all new custodians. Defendant
represented that it has fifty lawyers working considerable
hours to review the documents for privilege and compliance
with privacy laws. Although Defendant has elected a
time-consuming production method, the Court will not force
any change in production methodology at this late stage of
Phase I discovery.
Defendant's proposed time for production of the
additional custodial files is commensurate with its
reasonable production pace for the custodial files already
produced. Plaintiffs argue that the newly added custodial
files should take less time because they are presumably
individuals with less knowledge. Even assuming this is true,
the Court is not persuaded that having less knowledge results
in fewer loaded documents, fewer search hits, or reduced
review time for each custodian.
the Court interprets Judge Kern's September 12, 2017,
Order as giving Defendant the option of producing all of the
custodial files requested by Plaintiff or negotiating a
reduced number with Plaintiffs. See ECF No. 263 at
3. Defendant opted to produce all of the compelled files.
Plaintiffs will reap the benefit of receiving all its
requested custodial files but must also bear the consequence
of added time to complete production.
the Court's primary objective is to set a realistic
schedule that builds in adequate time for the remaining
production. Plaintiffs urge the Court to discount
Defendant's representations regarding time needed based
on Defendant's past secrecy and inaccurate statements.
Plaintiffs are correct that: (1) either Defendant or
Defendant's counsel provided misinformation regarding
organizational charts; (2) Defendant refused to reveal the
universe of databases it was searching until Judge Kern
ordered it to do so; and (3) Defendant's motion for
summary judgment on the issue of federal preemption
necessitated substantially more discovery than Defendant
originally represented at the case management conference,
leading to unanticipated delays in Phase I. However, the
Court finds that Defendant's current estimate of time
needed is reasonable and not made for the purpose of delay.
Further, setting a truncated schedule that punishes Defendant
for past discovery delays does not further the Court's
objective of completing Phase I without further extensions.
Judge Kern expressed his desire to consider Defendant's
preemption motion “based on a fair and complete
evidentiary record rather than on Defendant's version of
scientific and other evidence, ” ECF No. 207 at 6, and
stated that “there is benefit to permitting Plaintiffs
expansive discovery in Phase I, ” ECF No. 263 at 2.
Plaintiffs successfully argued for this expansive discovery,
and the Court will permit Defendant reasonable time to comply
with Judge Kern's Orders.
this schedule permits time for the Court to resolve potential
disputes regarding privilege logs, sources of documents, and
other issues forecasted at the hearing. While the Court is
hopeful the parties will resolve most issues, it is prudent
to build in time for the Court's consideration of
disputes. Accordingly, the Court will permit Defendant until
March 23, 2018, to complete its written production and will
enter Case Management Order # 3 (“CMO #3”)
immediately following entry of this Opinion and Order.
reflected in CMO #3, the Court grants Plaintiffs' request
for interim deadlines, including deadlines for specific
custodians. As explained above, the Court's overarching
aim is orderly production that enables Plaintiffs to complete
a focused review of documents, complete depositions by the
discovery deadline, and prepare its response to the motion.
Specific interim deadlines serve that goal. Although two
first-priority custodians now reside in foreign countries,
the Court has permitted adequate time for Defendant to
resolve these issues and meet the deadline. If Defendant
determines it cannot comply with any interim deadlines, it
must schedule a conference call with Plaintiffs and the Court
prior to the deadline. Defendant shall be prepared to explain
the reasons and the additional time needed.
Expert Rebuttal Declarations
requests that the Court include language in CMO #3 permitting
it to file any expert rebuttal declarations in its reply
brief. Plaintiff objects, arguing that Defendant should not
be permitted to “modify [its prior] approach to
briefing, particularly in a manner that places plaintiffs at
a complete disadvantage.” ECF No. 266 at n.1. As stated
at the hearing, the Court directs Defendant to raise this
issue by separate motion, which may or may not be referred at
a later time. The Court does not consider this a
“scheduling” issue, the arguments were buried in
footnotes in the parties' scheduling submissions, and it
is not clear Judge Kern intended to refer this question.