Healthwerks, Inc. v. Stryker Spine

          ORDER DENYING PLAINTIFFS' AND THIRD-PARTY DEFENDANTS' CIVIL L.R. 7(h) EXPEDITED NON-DISPOSITIVE MOTION TO COMPEL STRYKER SPINE TO PRODUCE ITS WITNESSES' RELEVANT TEXT MESSAGES (DKT. NO. 205)

          HON. PAMELA PEPPER United States District Judge

         Motion

         On April 25, 2016-ahead of what was then the March 23, 2016 trial date-the plaintiffs/third-party defendants filed this motion. Dkt. No. 205. The motion indicated that on April 12, 2016, the plaintiffs/third-party defendants had received from Stryker twenty-one text messages, all from a records custodian who had not been working for Stryker until after the filing of the lawsuit. Id. at 2. Several days later, Stryker informed the plaintiffs/third-party defendants that it had not searched any of its other employees' phones for relevant text messages. Id. The movants indicated that, while Stryker never had objected to their discovery demands that Stryker produce such text messages, Stryker now was arguing that it would not produce the texts absent a court order. Id.

         The movants reminded the court that Stryker had produced tens of thousands of pages of “rolling” discovery in the nine months between March and November 2015. Id. Some of that discovery contained text messages. Id. at 2. The movants argue, however, that because of the format in which Stryker produced the discovery, the movants couldn't search the discovery for texts, and therefore, the movants asked Stryker “several times” to state whether Stryker had produced texts, along with other discovery. Id. According to the movants, Stryker did not respond to these requests; rather, it pushed the movants to respond to its own discovery demands. Id. Finally, in April 2015, with trial looming, the movants “isolated the Stryker text issue.” Id. At this point, Stryker first said it would look into the issue, but, according to the movants, then refused to review the texts of Ed Macy and Eric Romsey to determine whether they had any responsive texts. Id. at 3-4. Apparently, Stryker's theory-according to the movants-was that by waiting throughout the discovery period for Stryker to produce the texts, the movants somehow had waived their right to expect them. Id. at 4.

         Supporting Documentation

         In support of the motion, the movants provided the declaration of Attorney Maher, dkt. no. 206, and several attachments. The last attachment provides the background for the tangled facts that result in this motion. It is the plaintiffs' first set of interrogatories and requests for production, dated December 31, 2014. Dkt. No. 206-4. The sixteen-page document contains forty-three requests for production and five interrogatories. Each request for production demands that the other side “produce every document that you claim supports” a particular contention, or “produce any document that you claim” supports any contention. Paragraph B of the demand, which defines the word “document, ” is almost a full page long. Id. at 2-3. At the beginning of its list of every possible thing that the word “document” could mean, the definition includes “computer-stored or generated” things, and later mentions “any written or oral communication(s) of any kind.” Id. At the end of the definition are these sentences:

The term shall include data or information in the electronic or magnetic form including but not limited to emails, with any and all attachments, and databases and/or spreadsheets. Electronic information shall be produced as single-paged TIFFs with a load file (.OPT or .LFP) and a load file that contains a path to the OCR.

         Another attachment contains an email from Attorney Maher to Attorney Werber, dated November 1, 2015-ten months after the discovery demands, and two weeks before the close of discovery. Dkt. No. 206-1. The email contains the following sentence: “On a separate note, please confirm that you have produced all responsive texts from Stryker employees' phones.” Id. at 1.

         The movants also attached the deposition of Edward Macy, taken on July 21, 2015. Dkt. No. 206-3. The transcript reflects a confusing series of questions and answers between Attorney Harvey and Mr. Macy. While Harvey was asking questions about texts, Macy did not seem to understand, or directly answer, the questions. It appears that Macy did text with people; it is not clear who those people were, or what the subjects of those texts might have been. While Harvey asked Macy if he texted “with anybody about this lawsuit, ” “[o]r about the breakup, any of it, ” Macy responded that if he was “texting someone about this situation, it would be about arrival or departure information getting into Wisconsin. It would not be about substantive information.” Id. at 2-3.

         The final attachment contains an email chain forty-nine pages long, which appears to start with an email from Attorney Werber to Attorney Maher dated March 31, 2016, asking about texts the plaintiffs/third-party defendants had produced. Dkt. No. 206-2 at 45-6. The chain contains an email from Attorney Maher to Attorney Werber dated April 4, 2016, in which Attorney Maher says, “On a separate but related note, I would appreciate it if someone from your team would respond to our inquiries about the lack of any texts in the Stryker production despite testimony from several witnesses that they texted about the subject the relationship between the parties. We have reviewed the tens of thousands of documents produced by Stryker and I do not believe that there is a single text among them.” Id. at 36-37.

         In response, Werber stated that same day, “Whether we have or have not produced texts is irrelevant to what we are following up on here.” Id. at 34. Maher wrote back (the same day): “ . . . what I'm trying to follow up on here . . . is the absence of Stryker texts. I am trying to avoid a motion on a question we have asked your team several times over the past few months but have received no response. Not even a ‘we are looking into it.' Perhaps we should set up a meet and confer on the subject. Please let me know. I would like to avoid further motion practice.” Id. at 33.

         Werber in response: “We do not agree that Stryker's texts are relevant to Olin's incomplete production. * * * In order to be responsive, however, I refer you to your own brief (in response to the motion to compel) where Spine Group represented to the Court that Stryker Spine did not produce a single text message in this case. As it turns out, that representation is not true because we did produce text messages (see e.g. STRSGW00003627).” Id. at 32.

         At this point, Attorney Harvey joined the chain, indicating that the text Werber had referred to was from Todd Potokar to Mariano Luna. Id. at 29. Harvey indicated that the movants couldn't see “any texts between Luna and any other Stryker witness/employee, and we are also not finding any texts to/from Eric Romsey, Ed Macy, or any other Stryker witnesses/employees.” Id. Harvey explained that the format of production made it impossible for the movants to search the discovery solely for texts, and said, “That is why we have been asking-for months-whether you produced any texts.” Id. Harvey asked Werber to identify any other texts Stryker may have produced, or in the alternative, for a meet-and-confer. Id. Werber responded that he was checking on “your metadata question, ” but said, “As for the meet and confer, what would this be about? Fact discovery closed ...