United States District Court, E.D. Wisconsin
HEALTHWERKS, INC.; SPINE GROUP OF WISCONSIN, LLC; GREAT LAKES SPINE GROUP, LLC; and PAUL BREITENBACH, Plaintiffs,
STRYKER SPINE, A Division of Howmedica Osteonics Corp., Defendant. And BIOMET SPINE, LLC. Involuntary Plaintiff, HOWMEDICAL OSTEONICS CORP., Counter-Plaintiff, And BIOMET SPINE, LLC, Involuntary Counter-Defendant
HEALTHWERKS, INC.; SPINE GROUP OF WISCONSIN, LLC; GREAT LAKES SPINE GROUP, LLC; and PAUL BREITENBACH, Counter-Defendants, And MIKE ROGERS, SCOTT OLIN, DAN GRAY, JOHN MURRAY, NICK NOVACK, ANNIE BRAUER, and TODD POTOKAR, Third-Party Defendants.
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)
PAMELA PEPPER United States District Judge
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.
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.
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
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.
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.
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.
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.
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.
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
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 ...