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McClurg v. Mallinckrodt, LLC

United States District Court, E.D. Missouri, Eastern Division

June 20, 2018

SCOTT D. MCCLURG, et al., Plaintiffs,
v.
MALLINCKRODT, LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiffs' motion (ECF No. 711) to compel and for sanctions against Defendant Mallinckrodt LLC. For the reasons set forth below, the motion will be granted in part and denied in part.

         BACKGROUND

         The current discovery dispute arises out of Plaintiffs' allegation that Mallinckrodt improperly delayed production of, or still has not produced, certain discovery related to Mallinckrodt's expert witnesses. Plaintiffs filed the instant motion on May 28, 2018, and have canceled the previously scheduled depositions of Mallinckrodt's experts (scheduled for the end of May and early June, 2018) pending resolution of Plaintiffs' motion.[1]

         The first category of documents at issue in Plaintiffs' motion is a set of documents obtained from a federal government database known as the Site Research Database, which contains historical documents and information (“SRDB Documents”). Plaintiffs argue that Mallinckrodt's retained expert, Dr. John E. Till of Risk Assessment Corporation (“RAC”), considered “almost 400” SRDB Documents and that not all of these documents were produced to Plaintiffs as of the date of Plaintiffs' motion, May 28, 2018. Plaintiffs seek a prompt production of these documents.

         Plaintiffs further contend that Mallinckrodt has been in possession of the SRDB documents since at least October 2016, and that Mallinckrodt should have produced such documents even before disclosing its expert, in connection with a timely supplementation to its Rule 26(a) initial disclosures or in response to Plaintiffs' discovery requests for such information. Plaintiffs argue that Mallinckrodt's failure to do so violates the Court's prior orders, including its March 8, 2016 Order (ECF No. 347), in which the Court denied Plaintiffs' request for a production of documents that Defendants' attorneys collected from the State Historical Society of Missouri and from Freedom of Information Act (“FOIA”) requests. In that Order, the Court held that Plaintiffs' request for a wholesale production of the documents compiled by the defense attorneys risked exposing the attorneys' mental impressions and thought processes protected under the work product doctrine. But the Court reminded Defendants that they were still obligated to timely supplement their Rule 26(a) disclosures to the extent such documents fell within the scope of Rule 26(a)(1)(A)(ii). Plaintiffs also point to statements by the Court during a September 2017 status conference (ECF No. 642), directing the parties to timely supplement their Rule 26(a) disclosures and responses to discovery requests, and although the Court could not give the parties a “bright line definition” of when supplementation must be made, directing the parties to proceed in good faith.

         Plaintiffs argue that they have attempted, unsuccessfully, to obtain the SRDB Documents through their own FOIA requests and other means, and that they believe that “Mallinckrodt may have had preferential access to these documents.” ECF No. 711 at 11. Plaintiffs contend that, had Mallinckrodt produced the SRDB Documents when Mallinckrodt first came into possession of them, Plaintiffs' experts could have used the documents in connection with their own reports. Thus, Plaintiffs seek sanctions against Mallinckrodt for failure to timely produce the SRDB Documents.

         The second category of documents at issue is the notes, memoranda, and presentations that Mallinckrodt's testifying experts prepared, or that other non-attorney staff prepared that were considered by Mallinckrodt's testifying experts, as well as communications between the testifying experts and non-attorney staff or consultants . Although Plaintiffs acknowledge that draft reports of testifying experts and attorney-expert communications are protected from disclosure under Rule 26, they argue that the above materials do not constitute either. Therefore, Plaintiffs request an order compelling Mallinckrodt to produce all documents its testifying experts considered or created, other than draft reports and attorney-expert communications.

         In response, Mallinckrodt argues that it has produced all SRDB Documents that its expert considered, which were all listed in an appendix (“Appendix H”) to Mallinckrodt's expert report. The expert report, including Appendix H, was produced to Plaintiffs on April 27, 2018. Mallinckrodt concedes that, on May 29, 2018 (the day after Plaintiffs filed the current motion), after reviewing Plaintiffs' motion, Mallinckrodt “discovered that some documents on Appendix H were inadvertently not transmitted.” ECF No. 712 at 6 n.2. Mallinckrodt states that it transmitted those documents to Plaintiffs on May 30, 2018, along with an index “so plaintiffs could easily determine what was being produced.” Id. Mallinckrodt argues that Plaintiffs failed to adequately meet and confer regarding any issue with respect to the SRDB Documents, and had they done so, Mallinckrodt would have produced the missing documents earlier. Mallinckrodt also maintains that Plaintiffs knew about any issue with the SRDB Documents on April 27, 2018 (when the expert report and appendix were produced to Plaintiffs) and that Plaintiffs should have raised such issue at the May 11, 2018 status conference before the Court, in which case the issue could have been promptly resolved and the expert depositions could have proceeded as scheduled.

         Next, Mallinckrodt disputes the notion that it was required to produce the SRDB Documents prior to its expert disclosures or that its conduct warrants sanctions. Rather, Mallinckrodt argues that, in accordance with the Federal Rules of Civil Procedure and the Court's Orders described above, it produced the documents when its experts considered or relied upon the documents. Mallinckrodt argues that neither it nor its experts had any special access to the SRDB Documents, and, instead, its counsel obtained these documents through “exhaustive research and thorough searches of National Archives or through Freedom FOIA requests, ” just as Plaintiffs have tried to do. ECF NO. 712 at 11. Indeed, Mallinckrodt contends that Plaintiffs, too, obtained historical documents through FOIA requests and did not immediately produce such documents but did so only in connection with their expert disclosures or, in some cases, after their experts had been deposed. Mallinckrodt argues that six of the eight SRDB Documents that Plaintiffs cited in their motion as examples of documents that Mallinckrodt should have produced earlier were documents that Plaintiffs' own experts listed in annexes to their expert reports as materials they relied upon.

         Regarding the second category of documents, Mallinckrodt argues that Plaintiffs are not entitled to the experts' notes, memoranda, presentations, and internal communications because such information is protected under the work product doctrine. Mallinckrodt further argues that Plaintiffs' experts did not produce all of the notes and other materials of the type that Plaintiffs now seek from Mallinckrodt.

         DISCUSSION

         Rule 26(a) sets out the requirements for parties' mandatory disclosures, including initial disclosures, expert disclosures, and other pretrial disclosures. The Rule requires that parties disclose, as part of their initial disclosures, all documents in their possession, custody, or control that they may use to support their claims or defenses, and that parties supplement these initial disclosures as well as responses to discovery requests “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(a)(1)(A)(ii), 26(e).

         As for expert witnesses, Rule 26(a) provides that parties must reveal the identity of expert witnesses as part of their mandatory disclosures, and retained experts are required to submit reports which must include “the facts or data considered ...


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