J.F. v. Abbott Labs., Inc.
J.F. v. Abbott Labs., Inc.
2015 WL 11439049 (S.D. Ill. 2015)
December 4, 2015
Williams, Stephen C., United States Magistrate Judge
Summary
The Court ordered Abbott to produce non-duplicative documents from the June 2015 back-up tape to Plaintiffs prior to Schwamlein's deposition. However, some of the ESI restored and produced from the back-up tapes were in an unusable and unreviewable format, and nothing could be done to fix the documents.
J.F. and Parent Michelle Leal, Plaintiffs,
v.
Abbott Laboratories, Inc., Defendant
v.
Abbott Laboratories, Inc., Defendant
Case Nos. 14-cv-847-NJR, 12-cv-52-NJR
United States District Court, S.D. Illinois
Signed December 04, 2015
Counsel
Blair R. Loocke, Heath A. Novosad, Nancy R. McEvily, Phillip L. Sampson, Jr., Ralph D. McBride, Bracewell & Giuliani LLP, Jay H. Henderson, Fibich Leebron Copeland Briggs Josephson, Jeffrey D. Meyer, Meyer Law Firm, John T. Boundas, John E. Williams, Jr., Margot G. Trevino, Sejal K. Brahmbhatt, Brian A. Abramson, Williams Kherkher Hart Boundas, LLP, Kenneth T. Fibich, Fibich Hampton et al, LLP, Houston, TX, Christopher F. Cueto, Michael J. Gras, Law Office of Christopher Cueto, Ltd., Belleville, IL, Janet G. Abaray, Burg, Simpson et al., Cincinnati, OH, Joshua C. Ezrin, S. Clinton Woods, Audet & Partners LLP, San Francisco, CA, Carlton D. Wilde, III, Bracewell LLP, Houstoin, TX, Allen N. Schwartz, Jennifer K. Scifo, Kralovec, Jambois & Schwartz, Chicago, IL, for Plaintiffs.Dan H. Ball, Stefan Mallen, Bryan Cave, LLP, St. Louis, MO, Dino S. Sangiamo, James E. Gray, Jason C. Rose, Jason Sayers, Kathleen Sullivan Hardway, Michael B. MacWilliams, Michaela F. Roberts, Paul F. Strain, Stephen E. Marshall, Thomasina E. Poirot, David S. Gray, Venable LLP, Baltimore, MD, James F. Hurst, Winston & Strawn, L.L.P., Chicago, IL, Michael R. Klatt, Gordon & Rees LLP, Austin, TX, for Defendant.
Williams, Stephen C., United States Magistrate Judge
MEMORANDUM AND ORDER
*1 On December 4, 2015, the Court held a discovery dispute conference. The following memorializes the Court's findings and rulings at that hearing.
A. Production of Sales Representatives and Sales Manager Documents
The parties indicate that they have nothing new to report besides what is in the joint report, that Abbott is in the process of compiling documents and is producing them on a rolling basis. As to the sales manager documents, Abbott is also in the process of gathering and producing documents. Plaintiffs indicate that the results of those productions may necessitate the taking of some of the sales representatives' and managers' depositions.
B. Back-up Tape Restoration
Plaintiffs indicate that they have received the back-up tape restoration from Dr. Charles Schwamlein's files from April 15, 2007. There are two previous back-up dates, including April 13, 2005 and June 28, 2005, which Plaintiffs would also like restored. Abbott objects to the restoration of these earlier dates as there is no indication that relevant documents will be found on the earlier back-up tapes that were not produced with the April 15, 2007 back-up tape. Abbott previously offered to restore the June 28, 2005 back-up tapes which Plaintiffs initially accepted and then subsequently rescinded the acceptance. Abbott indicates that the parties never discussed with the Court how many of the tapes would be restored and that Plaintiffs initially requested the most recent tape and then the remaining two.
The Court finds that there is some value in looking at the June 2015 snapshot to compare with the April 2007 snapshot given the length of time between the two. However, the Court sees little value in the comparison of the April 2005 and June 2005 tapes as they are only 11 weeks apart and there is no indication that the earlier snapshot would have anything different than the June snapshot, especially since the June snapshot has an increased size from the April 2005. Thus, the Court will ORDER the restoration of the June 2015 back-up tape. Abbott must produce any non-duplicative documents from that back-up tape to Plaintiffs prior to Schwamlein's deposition so that Plaintiffs have a reasonable amount of time to review the documents prior to the deposition.
C. Unusable ESI
Plaintiffs note that some of the ESI restored and produced from the back-up tapes are in an unusable and unreviewable format. Abbott indicates that the documents were produced in their original format as they were stored and that they are unviewable due to that format. Abbott represents that there is no way for the documents to be changed into a viewable format. The Court cannot do anything about the documents if they are simply unusable. It appears that the documents are unviewable and nothing can be done to fix the documents.
D. Deposition of Schwamlein
The parties indicate that they are working on scheduling a deposition date for Schwamlein. Abbott has proposed dates which Plaintiffs have rejected. Abbott's counsel indicates that he will need to speak to Schwamlein about further available dates and will meet and confer with Plaintiffs. Should the parties be unable to agree on a date, they can contact the Court for a hearing on the issue.
E. Rule 30(b)(6) Depositions of Clinical Team
*2 Abbott is in the process of identifying witnesses for Plaintiffs' Rule 30(b)(6) notice regarding the clinical team. The parties are still working on the issue and working on dates for the deposition. The parties may call the Court if there are any remaining issues with the clinical team depositions.
F. Rule 30(b)(6) Depositions of Psychiatric Clinical Trials
The parties dispute whether Rule 30(b)(6) depositions regarding clinical trials conducted by Abbott as to the use of Depakote in psychiatric conditions should focus only on bipolar disorder or may focus on all psychiatric uses for Depakote. Plaintiffs argue that the deposition was noticed as to all cases, not just the bellweathers, and that call notes suggest that Depakote was promoted to the doctors for a variety of psychiatric conditions. Plaintiffs indicate that the main disorder at issue in the bellweather cases is bipolar disorder, although there is some indication that the mother in Raquel may have had a schizoaffective disorder, but that is not quite clear to the parties. However, the disorder for which all of the mothers in the bellweather cases were prescribed Depakote was bipolar disorder. Thus, given the remaining time for discovery and the increased burden that Abbott has articulated with allowing the depositions to include the entire scope of psychiatric disorders, the Court DIRECTS that the psychiatric clinical trial depositions focus on bipolar disorder as that is the focus of the pending bellweather trials.
G. Rossi Deposition
The parties also dispute whether Abbott should be allowed to proceed with a video deposition of Dr. Rossi for trial purposes. The Court previously ordered that if any party, after taking a deposition of a treating physician that is not automatically subject to a trial subpoena, wishes to take a video deposition of the physician for trial purposes, they may do so upon reasonable notice (Doc. 424, p. 3). At the time that the Court issued its order, it was not apparent that Dr. Rossi would appear live or was subject to the Court's subpoena power. Plaintiffs have now informed the Court that Dr. Rossi has provided a written agreement to appear at trial live and confirmed that he is subject to subpoena. As such, the Court agrees with Plaintiffs that a video deposition is not warranted at this time. It is clear that Rossi will appear at trial and that he can be compelled to come by subpoena. Thus, if Abbott wishes to compel his appearance at the trial, it can issue a subpoena for his appearance. This is consistent with the Court's prior reasoning for allowing video depositions.
H. Verification of Interrogatory Responses and Defendant Fact Sheets
Plaintiffs seek verification from Abbott for their Defendant Fact Sheets. Abbott indicates that it is working on verifications and will provide those to Plaintiffs prior to the close of fact discovery. The Court agrees with Abbott that the verifications should be provided by close of discovery.
I. Scheduling Issues
Finally, the parties discussed the discovery schedule as to the bellweather cases. The parties asked that the fact discovery deadline be moved to the end of January to allow depositions and other discovery matters to be completed. The Court GRANTS that request and sets the fact discovery deadline for January 29, 2015. All other deadlines remain the same at this time.
*3 IT IS SO ORDERED.
DATED: December 4, 2015.