Plaintiffs Prevail on Electronic Discovery Dispute in Surgical Mesh MDL Regarding International Data
In ongoing multidistrict litigation involving surgical mesh that has been alleged to have injured over ten thousand plaintiffs, an eDiscovery dispute arose over international electronic data. In the case In Re: Ethicon, Inc. Pelvic Repair Systems Product Liability Litigation, MDL No. 2327, (S.D.W.Va. September 18, 2013), plaintiffs sought electronic data relating to the testing, manufacturing, design and foreign regulation of the surgical mesh.
Plaintiffs move to compel the production of additional ESI from defendants regarding these issues in 67 countries. Defendant supplied some data regarding three of these 67 countries, but it argued that further production would be duplicative and overburdensome. Defendant sought a protective order limiting discovery and claimed any benefit would be far outweighed by the expense of gathering and producing the international data. Finally, if ordered to produce the data, defendant alternatively requested cost shifting.
In its analysis, the court first found that the requested data was relevant to claims and defenses. Having determined relevancy, the court then turned to whether the production would be overly burdensome or duplicative as to merit limiting additional production. Finding that defendant’s Affidavit in support of the motion to have “internal inconsistencies,” it noted that plaintiffs had found significant variations in the data from the production regarding three of the 67 countries. The court granted plaintiffs’ Motion to Compel and concluded defendant failed to bear its burden that the requests were overly burdensome or would solely result in duplicative data.
After ordering defendant to comply with plaintiff ESI requests, the court considered whether cost-shifting was appropriate. The first factor in this analysis was whether the remaining production would be unreasonably duplicative, which the court held was unknown at the time and therefore a neutral factor. Secondly, the court noted that there was no less burdensome, less expensive or more convenient way to gather the data, and plaintiffs so far only received the defense production from three out of the 67 countries at issue. Finally, with ten thousand injured plaintiffs, the amount in controversy far outweighed the discovery costs and the litigation will likely have a broad public impact. Nothing that defendant, as a multi-billion dollar family of companies, could easily bear the expense, the request for cost shifting was denied.