The Court held a Thirteenth Case Management Conference with the parties on January 16, 2025. See Doc. 2342. This order reflects matters discussed and decided during the conference.

1. The Court will hold a Fourteenth Case Management Conference on February 20, 2025, at 1:00 p.m. Arizona time.[1] The conference will be held by Zoom. By close of business on February 18, 2025, the parties shall file a joint memorandum.

2. The Court discussed with the parties a privilege issue raised in the Joint Memorandum filed in advance of the conference. See Doc. 2315 at 5-13. Plaintiffs contend that Defendants have taken an incorrect position on when the attorney-client privilege applies to attachments to privileged communications, and ask the Court to order Defendants to conduct further reviews of all attachments withheld as privileged. Defendants contend that they have not taken an incorrect position and that no further review of attachments is required. Defendants also contend that this issue is untimely under CMO 19 (Doc. 528).

The Court concludes that when (1) a nonprivileged document (2) is responsive to Plaintiffs’ document request and (3) is attached to a privileged communication, the document must be produced to Plaintiffs (without the privileged communication), even if the only location where the document is found in Defendants’ possession is as an attachment to the privileged communication. See In re: Bard IVC Filters Prods. Liab. Litig., No. MDL 15-2641 PHX DGC, 2016 WL 3970338, at *9 (D. Ariz. July 25, 2016) (requiring production of nonprivileged portions of documents attached to privileged communication). Defense counsel seemed to agree with this conclusion during the conference, and also stated that when nonprivileged responsive documents were found attached to privileged documents during Defendants’ review of documents in this case, they were withheld from disclosure with the privileged communication and identified in Defendants’ privilege log, but Defendants did not check to see whether the nonprivileged attachments had been produced elsewhere to Plaintiffs. Defense counsel argued that further review of the withheld attachments is not warranted because when Defendants, as a result of conferrals with Plaintiffs, checked 39 of such attachments, it found that all 39 had been produced to Plaintiffs elsewhere. Defense counsel argued that this sample set shows that nonprivileged documents have not been withheld from production.

The Court does not find that Defendants failed to act in good faith in reviewing documents and compiling their privilege log, but the discussion described above clearly reveals the possibility that responsive nonprivileged documents have been withheld from production because they were attached to a privileged communication and were not found elsewhere in Defendants’ possession. Such documents should be produced. The Court cannot conclude that a sample set of 39 is sufficient assurance that some responsive documents have not been withheld. As a result, Defendants’ will be required to review all documents attached to privileged communications to determine if they are responsive, nonprivileged, and have not been produced elsewhere to Plaintiffs.[2] 

It is true that Plaintiffs did not raise this issue within 70 days of the privilege logs’ production as required by CMO 19, but the CMO provides that challenges may be brought later if there is good cause to conclude they could not have been made earlier. Doc. 528 at 5-6. The Court finds good cause. Defendants’ practice of not checking to ensure that responsive, nonprivileged attachments had been produced elsewhere was only recently made clear. Defendants shall complete their review of attachments and produce any previously undisclosed responsive and nonprivileged documents by January 31, 2025.

3. The Court agreed with the parties’ proposal to amend CMO 8 to deal with incomplete and nonverified Plaintiff Profile Forms (PPFs). See Doc. 2315 at 19-21. The Court and the parties agreed that the amended language will be expanded to include certain Plaintiffs with deficient PPFs discussed at pages 24-25 of the Joint Memorandum. The parties have submitted red-lined and clean copies of the amended CMO to the Court.

4. The Court will issue a separate order to show cause with respect to the following six Plaintiffs who have not served PPFs despite the deadline passing and Defendants having sent them deficiency letters: Tanya Taylor, Amjad Assaf, Sharon Daniels, Michael Dore, Harietta Ware, and Carla Rembert. Id. at 21-24 (Plaintiffs Johnson Portia, Meghan Murphy, and Ciera Brown have cured this deficiency since the Joint Memorandum was filed).

5. The Court discussed Plaintiffs’ argument that Defendants are not promptly producing Plaintiff-specific complaint files as required in section V(2) of the Defendant Profile Forms (DFSs). Id. at 26-30. During the discussion, Defendants agreed to produce such complaint files for the five Plaintiffs identified in the Joint Memo for whom files have not yet been produced, within 40 days of the conference (Plaintiffs Ramio Bucio, Patrick Piano, Patricia Brown-Johnson, Angela Stith, and Jerry Story). The Court will not at this time require Defendants to hire additional staff to expedite the complaint-file-completion process for other Plaintiffs. Defendants have provided the complaint-file information for the 48 cases in PFS/DFS Group 1, which includes the 15 cases the parties selected for Discovery Group 1. See id. at 26, 29; Doc. 2024. Plaintiffs may raise this issue again for other Plaintiffs if they feel slow production of complaint files is causing prejudice.

5. The Court and parties discussed Defendants’ supplementation of DFSs. Id. at 30-31. Defendants shall provide the supplemental information to Plaintiffs for the remaining five Plaintiffs in Discovery Group 1 by January 24, 2025.

6. The following 15 Plaintiffs have been selected by the parties for Discovery Group 1:

• Robert Cook, 23-cv-01975
• Jeannette Cunningham, 24-cv-00664
• Kimberly Divelbliss, 23-cv-01627
• Lei Ann Faust, 23-cv-02565
• Tiffany Gaither-Hawkins, 23-cv-01735
• Judy Hicks, 23-cv-01703
• Peter James, 23-cv-02669
• Kriston Kelley, 23-cv-01631
• May Lattanzio, 24-cv-00680
• Wanda Miller, 24-cv-00612
• Auntron Reed, 23-cv-02695
• Lisa Sanders, 24-cv-00568
• Lloyd Sorensen, 23-cv-02557
• Jay Sours, 23-cv-01706
• Karen Stant, for the Estate of Ruth Genevieve Davilman, 24-cv-00211

7. Plaintiff Tamekia Franklin, Case No. 24-cv-02415, failed to timely serve a PPF as required by CMO 8 (Doc. 113). See Doc. 1885 at 11. The Court issued an order to show cause why the claims of Plaintiff Franklin should not be dismissed for failure to comply with CMO 8. Doc. 1892. Plaintiff Franklin has now complied with CMO 8 and Defendants have withdrawn their show cause request. Docs. 2020, 2064.

8. Plaintiff Brittney Isidore, Case No. 24-cv-01501, failed to comply with CMO 8 and CMO 26 (Doc. 1348 at 3). See Doc. 1657 at 24. The Court issued an order to show cause why the claims of Plaintiff Isidore should not be dismissed. Doc. 1703. The timeline provided in the response to the order to show cause suggested that Plaintiff Isidore’s counsel, Ben C. Martin, took no steps to comply with CMO 26 requiring a completed PPF by October 16, 2024. Doc. 1737.

In CMO 28, the Court explained that it likely would impose sanctions against Mr. Martin and directed Defense counsel to identify in the next joint memorandum the amount of attorneys’ fees expended in seeking to obtain full compliance by Ms. Isidore and her counsel. Doc. 1891 at 4. Defendants state in the Joint Memo that Mr. Martin has now paid those fees. Doc. 2315 at 16 n.9. This issue is resolved.

Dated this 17th day of January, 2025.

Footnotes