Westmoreland v. Medtronic, Inc.
Westmoreland v. Medtronic, Inc.
2019 WL 7929952 (E.D. Mo. 2019)
April 19, 2019
Fleissig, Audrey G., United States District Judge
Summary
The court granted the defendant's motion for a protective order to limit the plaintiff's requests for admission, requiring the plaintiff to revise her requests to apply only to documents she likely will seek to adduce at trial. The court also urged the parties to use the remaining time to complete discovery rather than expending additional resources on motion practice.
EVA WESTMORELAND, Plaintiff,
v.
MEDTRONIC, INC., et al., Defendants
v.
MEDTRONIC, INC., et al., Defendants
Case No. 4:17CV01626 AGF
United States District Court, E.D. Missouri, Eastern Division
Filed April 19, 2019
Counsel
Douglas P. Dowd, Kevin D. Lane, Paul G. Lane, Dowd And Dowd, P.C., St. Louis, MO, for Plaintiff.Anne E. Bode, Jonathan T. Barton, Kristin L. Jordan, Michael Anthony Langella, Stanton Barton LLC, St. Louis, Alison Shana Cooney, Dechert LLP, George C. Lombardi, Pro Hac Vice, Lee B. Muench, Pro Hac Vice, Maria R. Marek, Pro Hac Vice, Scott M. Ahmad, Pro Hac Vice, Winston And Strawn LLP, Chicago, IL, for Defendants
Fleissig, Audrey G., United States District Judge
ORDER
*1 This matter is before the Court on Defendants’ motion for a protective order to limit Plaintiff’s requests for admission. ECF No. 120. For the reasons set forth below, the motion will be granted in part and denied in part.
On August 15, 2018, this Court issued an order (ECF No. 96) partially granting Plaintiff’s three motions to compel discovery (ECF Nos. 49, 55, 61) with respect to various records, reports, regulatory documents, policies and procedures, and other information in Medtronic’s possession. On November 6, 2018, this Court issued another order (ECF No. 116) granting Plaintiff’s motion to compel Medtronic’s compliance (ECF No. 114) with the Court’s earlier order.
Plaintiff has served on Medtronic 193 requests for admission, of which 186 ask Medtronic to admit that the documents it produced in compliance with the Court’s orders are “true and accurate cop[ies] of a business record made and maintained in the ordinary course of business which meet the requirements of 28 U.S.C. § 1732.” Medtronic claims that Plaintiff’s request is unduly burdensome, warranting a protective order under Rule 26(c)(1). In response, Plaintiff asserts that, under Rule 36(a)(1), she is entitled to request admissions to establish the authenticity of documents, and Medtronic could simply stipulate that the records are authentic business records. In reply, Medtronic argues that authenticity under Rule 36(a)(1)(B) and admissibility under 28 U.S.C. § 1732 are separate inquiries, the latter requiring verification by a custodian or other qualified witness.
Rule 36(a)(1) permits a party to request admissions relating to “the genuineness of any described documents.” 28 U.S.C. § 1732 provides that a copy of a business record is as good as the original for purposes of admissibility.[1] The Court is familiar with the nature of the documents in question, having considered them in the context of Plaintiff’s motions to compel, and finds unpersuasive Medtronic’s claim that it would have difficulty determining whether those documents are in fact business records. Though Medtronic further argues that many of the documents in question are voluminous FDA submissions comprising multiple sub-documents and layers of hearsay, Plaintiff seeks only to dispense with the threshold matter of business records foundational questions. Medtronic remains free to challenge the admissibility of specific documents or excerpts thereof on other grounds at trial. Thus, Medtronic’s wholesale objection to Plaintiff’s requests is unfounded.
*2 However, Medtronic also suggests that Plaintiff’s requests are disproportional in that Plaintiff has not yet identified which documents she intends to adduce at trial. Medtronic’s motion is meritorious in this regard. Other district courts have limited a party’s requests for admission to documents likely to be offered at trial. Hydro Eng’g, Inc. v. Petter Investments, Inc., 2:11-CV-00139-RJS, 2013 WL 6621099, at *2 (D. Utah Dec. 16, 2013); Fish v. Air & Liquid Sys. Corp., CV GLR-16-496, 2017 WL 697663, at *21 (D. Md. Feb. 21, 2017). Such an approach is appropriate here, given the volume and scope of the documents in question. Though the Court will not limit Plaintiff’s requests to 25 as Defendants seek, the Court will require Plaintiff to revise her requests to apply only to those documents that, in her good faith belief, she likely will seek to adduce at trial.
Finally, the Court notes that the parties have litigated eight discovery disputes in this case. Requiring the Court to rule on discovery motions has ultimately afforded the parties less time to actually conduct discovery, which closes in less than two months. The Court strongly urges the parties to use that time to complete discovery rather than expending additional resources on motion practice.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ motion is GRANTED in part and DENIED in part. ECF No. 120.
IT IS FURTHER ORDERED that Plaintiff shall revise and re-submit her requests for admission with respect to business records, limiting such requests to the documents she may seek to adduce at trial, by May 3, 2019.
Dated this 19th day of April, 2019.
Footnotes
28 U.S.C. § 1732 states in its entirety: If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence, or event, and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement, or facsimile does not preclude admission of the original. This subsection shall not be construed to exclude from evidence any document or copy thereof which is otherwise admissible under the rules of evidence.