United States District Court, E.D. Missouri, Eastern Division
SCOTT D. MCCLURG, et al., Plaintiffs,
MALLINCKRODT, LLC, et al., Defendants.
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE.
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.
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.
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which contains historical documents and information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.
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.
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.
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
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.
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.
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.
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.
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