Holley v. Gilead Sciences, Inc.

Background

The court held a discovery hearing on May 18, 2021, and ruled on several pending discovery disputes. The disputes concerned the Plaintiff Fact Sheet Case Management Order, medical authorizations and declarations, social-media and other electronically stored information, Defendant Fact Sheets, sealing, and attorney-client privilege designations.

Rulings on sanctions and sealing

Defendants asked the court to impose retroactive monetary sanctions of $500 per day for each plaintiff who had not submitted what defendants considered fully completed medical authorizations and declarations. The court denied that request. It explained that defendants had not raised the issue in writing before an earlier hearing, that no order requiring the information had been included in the court’s later order, and that defendants had not shown the requirements for a civil contempt order. The court also stated that the Plaintiff Fact Sheet Case Management Order provides a process for addressing delinquent fact sheets and that defendants should use that process if they believed a plaintiff’s delinquency justified dismissal. The court stated that the magistrate judge did not have jurisdiction to dismiss any party’s claims.

The court granted the sealing request associated with Docket No. 657.

Plaintiffs’ social-media production

The court stated that hundreds of plaintiffs had not complied with their obligations under the Plaintiff Fact Sheet Case Management Order to produce social-media information. Although plaintiffs had asked the district court to modify that order and pause those obligations, the court stated that plaintiffs remained required to follow the existing orders unless and until the requested modification was granted.

The court adopted defendants’ proposal and ordered plaintiffs to complete production of all backlogged social-media electronically stored information by April 30, 2022, by making productions for at least 75 overdue plaintiffs per month.

Search terms

The parties had agreed to use 100 search terms to collect information about communications concerning plaintiffs’ HIV medications, the lawsuit, or their alleged injuries. Defendants sought to add 20 more terms, asserting that they concerned the causes of plaintiffs’ injuries, including possible causes other than defendants’ HIV drugs.

The court stated that information about alternative causation was relevant but was not required at this stage for every plaintiff under the Plaintiff Fact Sheet Case Management Order. It interpreted the reference to each plaintiff’s “alleged injuries” as referring to injuries allegedly caused by defendants’ drugs, rather than possible alternative causes. The court therefore did not require the additional search terms at this stage. It granted the sealing request associated with Docket No. 679.

Defendant Fact Sheets

The court ordered defendants to produce their Fact Sheets within 60 days after receiving a plaintiff’s complete Plaintiff Fact Sheet containing: applicable answers in specified sections; a signed and dated declaration; properly executed record-release authorizations; and a treating-healthcare-provider designation completed by plaintiff’s counsel. The court stated that defendants had not identified any other Plaintiff Fact Sheet information needed to complete their own Fact Sheets and that plaintiffs’ existing obligations had not changed.

The court denied plaintiffs’ request for expedited production. It noted that the request had been brought to the court’s attention on May 11, 2021, shortly before the June 1, 2021 Phase I Discovery Pool Selection deadline, and declined to order earlier production because of the delay in raising the issue. The parties were directed to submit a stipulated implementation order by May 21, 2021. The court granted the sealing request associated with Docket No. 673.

Attorney-client privilege

For documents submitted for confidential judicial review, the court ordered defendants to advise it by May 25, 2021, which attorney-client privilege designations they would withdraw.

Disposition

The order denied defendants’ request for retroactive monetary sanctions, granted the specified sealing requests, ordered production of the backlogged social-media information, declined to require the 20 additional search terms at that stage, ordered the Defendant Fact Sheet process and deadlines, denied plaintiffs’ request for expedited production, and issued the attorney-client privilege directive. The order states that it disposes of Docket Nos. 656, 657, 672, 673, 678, and 679. It was signed by United States Magistrate Judge Jacqueline Scott Corle.