Li v. Merck & Co., Inc.

Background

This order followed an earlier discovery order and addressed several disputes identified by docket entries 86, 88, 98, 104, 105, 106, 108, 109, 110, 112, and 113.

Li’s document production

The defendants argued that Li had produced documents in unusable form, including very long, unorganized PDF files; incomplete email threads; documents without dates, senders, recipients, or attachments; and pictures or screenshots of electronic documents. After reviewing examples submitted by the defendants, the court found that the production was “a complete mess” and was not proper document production.

The court ordered Li to redo her document collection and production. Her counsel must retain a document vendor to collect the documents in the normal way used for litigation, and counsel must review and produce them. The court noted that screenshots might be all that exists for emails from Li’s former Merck account, but found that documents from her personal email account, cell phone, and other electronic devices had not been properly collected.

Privilege review

The defendants requested an in-camera review, meaning a private review by the court, of documents on Li’s privilege log that involved non-lawyer third parties. The identified third party was Li’s daughter. The court found that, under California Evidence Code § 912(d), including Li’s daughter in the communications did not waive the attorney-client privilege because her daughter was fluent in English and acted as Li’s interpreter or translator.

Request for production 95

The parties disagreed about Request for Production 95, which sought all documents Li sent from her work email account to her personal email address. The court ruled that Li must produce responsive documents rather than merely identify them. It rejected the argument that production was unnecessary because Merck might already possess the documents.

The court also ruled that Li did not have to produce the emails in their native format because the requests did not specify a production format. Instead, under Federal Rule of Civil Procedure 34(b)(2)(E)(ii), she must produce them in the form in which they are ordinarily maintained or in a reasonably usable form. The court GRANTED Defendants’ motion to compel as to Request for Production 95 and ordered Li to comply with that rule.

Merck’s document production

Li argued that the defendants had produced documents that were not labeled to correspond to her requests and were not produced as kept in the ordinary course of business. After reviewing examples of the defendants’ production, the court found no significant problems and DENIES Plaintiff relief.

Rule 30(b)(6) deposition topics

Li sought discovery from witnesses designated under Federal Rule of Civil Procedure 30(b)(6). The court agreed with the defendants that topics 3 through 11, 12(d), and 13 through 15 were improper contention topics. The court explained that these topics sought the defendants’ litigation positions and legal conclusions, including details about their counterclaims, rather than factual information known by a company witness. Li’s motion to compel on those topics was DENIED.

Forensic examination

The defendants requested an order compelling a forensic examination of Li’s and her husband’s devices. The court found that the defendants had not shown that such an examination was warranted merely to conduct document production, even though the court had ordered Li to redo her collection. The defendants’ request was DENIED. The court stated that it would separately decide whether a forensic examination was warranted in connection with the defendants’ sanctions motion.

Sealing

Li had clawed back docket entry 77-24, but the document remained publicly available. After reviewing the document and counsel’s declaration, the court found that the document was protected by the attorney-client privilege and ORDERED that docket entry 77-24 be SEALED.

Disposition

The order required Li to redo her document collection and production, GRANTED the defendants’ motion to compel as to Request for Production 95, DENIES Li relief regarding the defendants’ document production, DENIED Li’s motion to compel on the specified deposition topics, DENIED the defendants’ request for a forensic examination, and ordered docket entry 77-24 sealed.