Rouviere v. Depuy Orthopaedics, Inc.

Background

Defendants Howmedica Osteonics Corp. and DePuy Orthopaedics, Inc. asked the court to intervene in a discovery dispute. They said Plaintiffs produced documents after 11:00 p.m. on August 21, 2020, the final day of fact discovery. The production consisted of approximately 131,327 pages sent to DePuy and approximately 90,112 pages sent to Howmedica, for a total of about 220,000 pages.

According to Defendants’ request, the production was not indexed and did not identify which documents were new, duplicative, or responsive to particular discovery requests. Defendants said Plaintiffs later identified what appeared to be thousands of previously unproduced documents, potentially amounting to tens of thousands of pages. Defendants also said Plaintiffs had not adequately explained the timing of the production and that Plaintiffs’ counsel was unavailable for a requested telephone meeting during the following week.

Defendants’ request

Defendants relied on Federal Rule of Civil Procedure 26(e), which requires timely supplementation of certain disclosures, and Rule 37(c), which can prevent a party from using information that was not properly disclosed unless the failure was substantially justified or harmless. Defendants asked the court to strike Plaintiffs’ supplemental disclosures and prohibit Plaintiffs from using or relying on documents produced on the final day of discovery. They also asked the court to consider awarding costs and attorneys’ fees related to the dispute.

Ruling

Following a telephone conference with the parties, the court denied without prejudice Defendants’ request that Plaintiffs be prohibited from relying on documents produced on the final day of discovery. The order stated that the ruling was for the reasons given on the record. The provided materials identify Gregory Woods as the judge, although the letter requesting court intervention was addressed to Magistrate Judge Stewart D. Aaron.