In SAGE PRODUCTS v. CHEMRITE COPAC, INC., No. 19 CV 5308 (N.D. Ill. Nov. 12, 2021) pending before the Court was a motion by Defendant ChemRite Copac, Inc., to compel Plaintiff, Sage Products, LLC, to produce text messages.
This was a breach-of-contract suit between Sage, a manufacturer and supplier of healthcare products, and ChemRite, a chemical manufacturer that provided cleaning, rinsing, and moisturizing solutions for inclusion in Sage products. ChemRite contracted with Sage to manufacture and provide Sage with mouthwash and mouth moisturizing solutions that were subject to regulation by the Food and Drug Administration (FDA).
In June and July 2017, the FDA issued warning letters to both parties. The letter to ChemRite advised that the company had failed to meet FDA regulations, resulting in possible adulteration of the Sage products. The letter to Sage advised the company that they failed to oversee ChemRite’s production and testing methods. On August 14, 2017, Sage voluntarily initiated a global recall of all oral-hygiene products that contained ChemRite manufactured solutions.
Before the recall, Sage sent ChemRite a written demand for records including a list of the ingredients in the products manufactured. A year later, Sage issued a formal “Notice of Claim” to ChemRite and sought more than $62 million in damages. During fact discovery, ChemRite requested documents and communications between Sage and its parent company, Stryker, following the letter from the FDA. In its responses at the time, Sage did not object to ChemRite’s requests nor did Sage state that it did not search for or was withholding communications that had occurred over text messages despite the fact that ChemRite’s document requests defined “communicate” and “documents” in broad terms that encompassed text messages.
ChemRite deposed several Sage and Stryker witnesses during discovery, including Brett Simmering, Stryker’s Vice President of Quality, and Clinical for the Medical Division, and Sean Haley, Sage’s former Vice President of Commercial Operations. Simmering testified that he had communicated by text with at least four other Stryker executives about the recall and the warning letters, and in fact, in email communications, specifically asked the recipient to consider the text messages Simmering had sent, e.g., “per my text.”
In mid-June, just prior to close of fact discovery, the parties engaged in a meet-and-confer process per Local Rule 37.2 regarding ChemRite’s request that Sage supplement its document production with responsive text messages. Sage contended that it did not include text messages because it “does not maintain a repository of its employees’ text messages sent from their mobile phones and therefore has no internal ability to search the contents of such devices.”
In its motion, ChemRite argued that Sage should be compelled to produce “all recoverable text messages relevant to this dispute” and that it properly requested the messages early in the discovery process from Sage, but that Sage led ChemRite to believe all responsive information was produced as Sage never objected or indicated it was withholding any information.
ChemRite also maintained that the text messages were relevant to its defenses, specifically, that the text messages represent “contemporaneous communications about Sage’s own regulatory concerns, its strategy in responding to the warning letters, Sage’s evaluation of ChemRite’s records, and Sage’s ultimate decision to throw ChemRite under the bus.”
Sage opposed the motion on two primary grounds. First, with respect to timeliness, Sage argued that ChemRite’s motion was untimely because it was filed “in the final weeks of nearly two years of discovery” and that prior emails produced by Sage demonstrated that some Sage employees in fact exchanged text messages, suggesting that ChemRite should have been aware of the text message issue earlier. Second, as to relevance/burden, Sage argued that any text messages that exist would not add any substantive information, not help ChemRite establish its defense, and would be unduly burdensome to produce because did not have a mechanism to gather and store employee texts.
On the issue of timeliness, the Court concluded that ChemRite’s motion was timely because Sage failed to comply with Civil Rule 34 which provides that “[f]or each item or category” in a request for production, “the response must either state that the inspection and related activities will be permitted or state with specificity the grounds for objecting to the request, including the reasons.” Specifically, the Court found that Sage failed to promptly inform ChemRite that it was not producing text messages. Had Sage complied with Rule 34, ChemRite could have moved to compel earlier.
The Court also rejected Sage’s argument that ChemRite should have inferred after reviewing Sage’s productions that text messages were not produced. Agreeing with ChemRite that such an argument “turns the rules of discovery upside down,” the court stated that it would be unreasonable for the clock to start ticking on a potential motion when Sage’s productions first began.
On the issue of relevance, the Court noted that during the depositions with Stryker executives, specific testimony was obtained about the extent text-messages were used for work-related communications, and that there had been text messages between the executives about the FDA warning letters and how Sage should respond to them. The Court also rejected Sage’s argument that any further production of text message was not likely to generate relevant evidence. As pointed out, how could Sage know that the texts are irrelevant without having gathered and reviewed the text messages? Sage also argued that ChemRite could have questioned the Sage executives during the depositions about the content of the text messages. But as decisions from the Northern District of Illinois have recognized: the “content of text messages cannot be replaced simply by eliciting testimony from [a party], and by having [another party] accept that testimony rather than relying on the actual message to as they deem fit. Schmalz v. Vill. of Rosemont, No. 13 C 8012, 2018 WL 1704109, at *4 (N.D. Ill. Mar. 23, 2018)
Regarding burden, apart from conclusory statements that the discovery would be “extremely costly,” Sage presented no other explanation or supporting documentation or declarations that detailed the costs and burden that Sage would have incurred had it properly responded to ChemRite’s discovery requests at the outset. Finally, the amount in controversy – $62 million sought by Sage against ChemRite – weighed in favor of requiring Sage to respond properly.
Accordingly, ChemRite’s motion to compel text messages was granted.