In re HIV Antitrust Litigation
- Edward Chen
- 3:19-cv-02573
- U.S. District Court · Northern District of California
- 2
In re HIV Antitrust Litigation: Judge Chen granted in part and denied in part plaintiffs’ motion, allowing expert access but rejecting a supplemental report.
Plaintiffs, defendants, and Dr. Strobos. Dr. Strobos may review defendants’ protected material subject to the protective orders, while plaintiffs could not proceed with the requested supplemental report.
What happened
In re HIV Antitrust Litigation involved plaintiffs’ request to let their expert, Dr. Strobos, review defendants’ protected confidential information and potentially use it in preparing for trial.
The court found that defendants had not shown the disclosure would harm or prejudice them. It allowed Dr. Strobos to review the material if he signed the protective-order acknowledgments and agreed to follow those orders. The court did not allow a supplemental report because plaintiffs had not acted diligently in raising that issue.
The court granted in part and denied in part the motion, vacated the hearing, and closed the matter. Judge Edward M. Chen signed the order.
The detailed version
- In re HIV Antitrust Litigation · No. 3:19-cv-02573
- Edward Chen
- Oct. 12, 2022
Background
Plaintiffs moved to disclose defendants’ protected material—including confidential information designated at all levels—to their expert, Dr. Strobos. The motion also raised whether Dr. Strobos could prepare a supplemental report after reviewing that material. The court decided the motion without oral argument and vacated the hearing.
Disclosure to Dr. Strobos
The court found that defendants had not shown that allowing Dr. Strobos to review the protected material would cause harm or prejudice. It therefore allowed him to review the information after signing the acknowledgments required by the protective orders and agreeing to be bound by them. He could review the material both to consult with plaintiffs in preparing for trial and to hear confidential information presented at trial.
The court also explained that it was not automatically improper for Dr. Strobos to serve both as a testifying expert and as a consulting expert. It noted, however, that this dual role could create disputes over attorney-client or work-product privilege if plaintiffs showed him documents they claimed were privileged.
Supplemental Report
The court acknowledged that the supplemental-report issue was technically premature because plaintiffs had not yet shown Dr. Strobos the protected material. It nevertheless decided the issue because it had already been briefed and because the relevant facts would not change after his review. Applying the requirement that a pretrial schedule may be changed only for good cause, with the judge’s consent, the court focused on plaintiffs’ diligence.
The court found that plaintiffs were not diligent. They did not raise the possibility of a supplemental report with defendants until the day Dr. Strobos’s rebuttal report was due, even though they could have raised the issue with defendants or the court earlier. The order therefore did not permit the requested supplemental-report step.
Disposition
The court granted in part and denied in part Plaintiffs’ motion to disclose protected material, Docket No. 1385. Dr. Strobos may review the protected material subject to the protective orders, while plaintiffs’ request concerning a supplemental report was rejected based on their lack of diligence. The order stated that it disposed of Docket No. 1385.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.