268 F.R.D. 226 (M.D.N.C. 2010)
L. PATRICK AULD, United States Magistrate Judge.
This matter comes before the Court on a Motion to Compel (Docket Entry 56) filed by Defendant ConvaTec Inc. (“ConvaTec”). In said motion, ConvaTec asks this Court to compel Plaintiffs Kinetic Concepts, Inc., KCI Licensing, Inc., KCI USA, Inc., KCI Medical Resources, Medical Holdings Limited, KCI Manufacturing (collectively “KCI”) and Wake Forest University Health Services (“WFUHS” and, collectively with KCI, “Plaintiffs”) and two related third-parties to produce certain items in response to Conva-Tec’s discovery requests. (Docket Entry 56 at 1-2.) For the reasons that follow, the Court will grant in part ConvaTec’s motion.
This patent infringement action (instituted upon Plaintiffs’ filing of a Complaint on December 18, 2008 (Docket Entry 1)) centers around certain patents involved in KCI’s wound care product, the Vacuum Assisted Closure System (“VAC”), specifically U.S. Patent Nos. 7,216,651 (“'651”), 5,636,643 (“'643”), 5,645,081 (“'081”), and 7,198,046 (“'046”). (Docket Entry 4 at ¶¶ 15, 17.) Doctors Louis Argenta and Michael Morykwas made the patented discoveries (Docket Entry 57 at 7), and Mr. Donald Piper, Esq., directed the prosecution and subsequent reexamination of said patents before the United States Patent and Trademark Office (id. at 7). These patents were acquired on behalf of WFUHS, which exclusively licensed them to KCI for use with the VAC. (Docket Entry 4 at ¶¶ 17-22.) Dr. David Zamierowski allegedly held U.S. Patent No. 4,969,880 (“'880”) (regarding a “wound dressing and treatment method”) which potentially related to and pre-existed the patents held by Plaintiffs. (Docket Entry 57 at 9,10 & n. 5.)
In June 2007, Defendants Boehringer Wound Systems, LLC, and Boehringer Technologies, LP (collectively “Boehringer”) allegedly met with “Plaintiffs” to discuss a business agreement regarding Boehringer’s wound treatment product, the Engenex System, but they did not reach an agreement. (Docket Entry 57 at 12.) In this action, Plaintiffs claim that Boehringer’s Engenex System (with which ConvaTec has become associated) incorporates Plaintiffs’ patents. (Docket Entry 4 at ¶¶ 23, 24 and 26.)
On April 29, 2009, Boehringer and Conva-Tec (collectively “Defendants”) served Plaintiffs with Defendants’ First Set of Document Requests. (Docket Entry 57 at Ex. 1.) Defendants requested that Plaintiffs produce 46 categories of documents “for inspection and copying at the offices of [Defendants’ lead counsel] … within thirty (30) days after service of this request, or at such other time and place as may hereafter be agreed upon by counsel.” (Id. at Ex. 1, p. 1 (emphasis added).) On May 22, 2009, Defendants’ counsel wrote to Plaintiffs’ counsel about “Plaintiffs’ electronically-stored information” (“ESI”) and identified certain categories of materials in which “Defendants [we]re most interested.” (Id. at Ex. 20, p. 1.) At the end of the letter, Defendants’ counsel stated: “Please let us know promptly when we can expect to receive documents.” (Id. at Ex. 20, p. 2.)
On May 29, 2009, Plaintiffs served Defendants with “Plaintiffs’ Objections and Responses to Defendants’ First Set of Document Requests.” (Id. at Ex. 2.) In that response, Plaintiffs first stated “General Objections,” such as “Plaintiffs object to the Requests to the extent they seek to impose obligations beyond those required by the Federal Rules of Civil Procedure and/or the Local Rules for the Middle District of North Carolina.” (Id. at Ex. 2, pp. 1-2.) Plaintiffs thereafter addressed ConvaTec’s 46 document requests with what they called “Responses and Specific Objections to Document Requests.” (Id. at Ex. 2, pp. 2-29.)
Two-thirds of the “Responses and Specific Objections” consist entirely of all or some portion of the following boilerplate:
Plaintiffs object to this Request because it is overly broad and unduly burdensome and it seeks information not relevant to this case, nor reasonably calculated to lead to such information. Plaintiffs also object to this Request because it seeks information that is protected by the attorney-client privilege, the work product doctrine, the investigative privilege and other applicable privileges or protections. Plaintiffs also object to this request because it seeks proprietary and confidential information that Plaintiffs should not be required to produce prior to entry of a Protective Order. Subject to and without waiving any objection set forth above, Plaintiffs will produce the relevant non-privileged documents in its [sic] possession, custody or control.
(Id. at Ex. 2, p. 2; see id. at Ex. 2, pp. 3-29.)
Most of the remaining third of the responses differed only in that, besides recycling some or all of the foregoing boilerplate, Plaintiffs added one or more of these other stock phrases:
“Plaintiffs also object to this Request because it seeks information that is not in their possession, custody, or control, or that does not exist” (id. at Ex. 2, p. 10);
“Plaintiffs also object to this Request because it is unreasonably cumulative or duplicative, or the information can be obtained from another source that is more convenient, less burdensome or less expensive” (id. at Ex. 2, pp. 11,12 and 24);
“Plaintiffs also object to this request to the extent it requires Plaintiffs to produce information that may be subject to a protective order or confidentiality agreement with a non-party” (id. at Ex. 2, pp. 14-16 and 24-26); and
“Plaintiffs also object to this Request because it is premature” (id. at Ex. 2, pp. 28, 29).
Only four of the 46 “Responses and Specific Objections” contained any non-boilerplate information: in one such instance, Plaintiffs supplemented their stock overbreadth/burdensomeness/relevance objection line with the phrase “particularly with regard to patent applications” (id. at Ex. 2, p. 6) and, at the end of three of the responses, Plaintiffs appended to the overbreadth/burdensomeness/relevance boilerplate the words “particularly with respect to Defendants’ request regarding foreign patent offices” (id. at Ex. 2, p. 8), “particularly with respect to foreign patent proceedings” (id. at Ex. 2, p. 11), or “particularly as it relates to foreign patent proceedings” (id. at Ex. 2, p. 12).
On or about May 30, 2009, Plaintiffs apparently forwarded Defendants “two dvds” containing “Plaintiffs’ document production at KCLCON 00000001-KCLCON00063768.” (Id. at Ex. 15, p. 2.) According to an e-mail from Defendants’ counsel two days later, in the letter accompanying the “dvds,” Plaintiffs’ counsel promised to “supplement [the] production when agreement on the protective order is reached.” (Id.) Defendants’ counsel replied: “There is no reason to hold up production. Please send all Plaintiffs’ responsive documents immediately. Please let us know by tomorrow when production of Plaintiffs’ documents will be completed…. To the extent you have not produced ESI or are holding off on production, we would like a meet and confer tomorrow.” (Id.)
At the request of Plaintiffs’ counsel, the meeting requested by Defendants’ counsel was scheduled for June 4, 2009. (Id. at Ex. 16, p. 2.) In advance of that meeting, Defendants’ counsel forwarded Plaintiffs’ counsel these six topics for discussion:
“KCLCon 15399-20000 are missing”;
“Plaintiffs’ infringement contentions rely on certain documents … without identifying where those documents exist”;
“[t]he June 1 production is not text searchable”;
Defendants wish to know “[w]hen Plaintiffs’ production will be complete” and “to discuss any responsive, non-privileged documents which Plaintiffs are presently withholding”;
Defendants wish to know “[w]hen Plaintiffs will produce ESI responsive to the categories of documents identified in [Defendants’ counsel’s] May 22 letter, and when that production will be complete”; and
“there is no reason for Plaintiffs to hold up production until an agreement is reached over the protective order.” (Id. at Ex. 16, p. 2 (emphasis added).)
The materials submitted to the Court do not reflect what, if anything occurred at any meeting on June 4, 2009; however, prior to that scheduled conference, Plaintiffs’ counsel responded to the six topics identified by Defendants in relevant part as follows:
the missing “KCLCon” documents “should have been included” and would be delivered “by [June 8, 2009]” (id. at Ex. 17, p. 2);
the documents cited in “Plaintiffs’ infringement contentions” appear “in the product literature provided to [Plaintiffs] by [D]efendants, except for [one document], which will be produced by [June 8]” (id.);
“We will re-produce the [files in search-able format] by [June 8] … if we receive written confirmation [Defendants will produce documents in that] format” (id. (emphasis in original));
“Our goal will be to have substantially all of the production complete … three weeks from the deadline for the document responses if [Defendants will agree to [produce documents responsive to Plaintiffs’ requests] … on a rolling basis beginning June 15 [with a goal of being] substantially complete 3 weeks later…. [W]e will plan to send some additional new production for delivery on Monday …, again later next week, and the following week…. There are not any specific responsive, non-privileged documents that we are aware of that are being withheld at this time, but we are still in the process of reviewing for production. We believe it will make more sense to have that discussion once our production is substantially complete….” (id. at Ex. 17, p. 3 (internal parentheses omitted));
“We are in the process of collecting the responsive ESI … and will plan to have substantially all of it produced within the next two weeks” (id.); and
“We will agree not to hold up further production if [Defendants will agree (i) to treat all documents produced as outside attorneys eyes only until the protective order has been finalized and … (ii) to destroy and replace any production we provide now that does not contain confidentiality designations [consistent with the protective order ultimately adopted]” (id.).
On July 10, 2009, Defendants’ counsel sent an e-mail to Plaintiffs’ counsel that stated in relevant part as follows:
We are still awaiting production of substantial documents from Plaintiffs. The last production you sent was on June 5, which included KCI—Con 15399-20000 … and [a text-searchable] version of the May 30th production. When can we expect the remaining documents? …
We have no problem with your proposed conditions … [limiting availability of produced documents to] outside counsel eyes only, and substitution later.
Please also produce immediately [documents] … relied on in Plaintiffs’ Infringement Contentions. Those are long overdue.
Your June 4 email stated that you were unaware of any documents being withheld. Please confirm that no responsive documents are being, or will be, withheld for Defendants’ Request Nos. 18, 19, 30, 31, 35, 36, 43, and 16.
(Id. at Ex. 18, p. 2 (emphasis added).)
On July 14, 2009, Defendants’ counsel followed up with an email noting that Plaintiffs’ counsel had not responded to the above-quoted July 10 e-mail and asking for a “response by tomorrow … [or a date this week] for a meet and confer to discuss Plaintiffs’ failure to produce documents.” (Id. at Ex. 18, p. 2.) Plaintiffs’ counsel responded as follows on July 16, 2009:
We had not produced additional documents because we understood from our last conversation that your team wanted to review the protective order and get back to us with proposed revisions before additional documents were produced to avoid the need to substitute a substantial number of documents with confidentiality labels after agreement was reached. We understood you would be getting back to us regarding the protective order within a few days from our conference on June 4, and sent at [sic] follow-up email, but never heard back from you. Also, Boehringer’s and Convatec’s [sic] production is long past due, and we have not received a single document, notwithstanding the fact that we have already produced more than 60,000 pages of documents. Now that defendants have agreed to the conditions [regarding handling of produced documents pending finalization of a protective order], and based on your representations that we will begin receiving defendants’ document production next week, we will likewise provide additional documents next week. Access to those documents must be limited to outside counsel only, and they will need to be replaced with documents with confidentiality labels once agreement on the protective order is reached. We will be happy to set up a conference call if you feel we need to discuss these issues further.
(Id. at Ex. 19, p. 2 (emphasis added).)
On July 23, 2009, Plaintiffs’ counsel sent the following email to Defendants’ counsel:
Please confirm that you will begin producing documents this week. On July 10, 2009, you indicated that you would be producing documents the following week; however, that time has come and gone and we have still received no documents. We are prepared to produce a second set of documents this week pursuant to my email of July 16 if you will promptly notify us that you also plan to produce documents this week.
(Id. at Ex. 30, pp. 2-3 (emphasis added).) Within ten minutes, Defendants’ counsel responded as follows:
We will be producing ConvaTec documents tomorrow. We are continuing to collect and process responsive documents, and will produce them on a rolling basis.
Your efforts, however, to hold off production are improper. Plaintiffs’ documents are long overdue.
Further, despite repeated requests in my June 3 and July 10 letters, Plaintiffs have not produced any responsive documents other than the missing pages from Plaintiffs’ May 30th production produced on June 5. ConvaTec served its document requests 2 weeks prior than Plaintiffs and we would expect Plaintiffs to have completed their production by now.
(Id. at Ex. 30, p. 2 (emphasis added).) That evening, Plaintiffs’ counsel replied: “We will also be producing documents tomorrow and are likewise continuing to collect and process responsive documents that will be produced on a rolling basis.” (Id.)
According to ConvaTec, “despite [the above-quoted] e-mails between ConvaTec and Plaintiffs in June and July 2009 discussing these discovery deficiencies, Plaintiffs [sic] production remained inadequate. A meet and confer was held on July 28, 2009, where Plaintiffs’ counsel assured Defendants that all documents responsive to Defendants’ Rule 26(f) Report and May 22 discovery letter had been produced by Plaintiffs.” (Id. at 14-15 (internal citations and footnote omitted).)
On August 27, 2009, Defendants’ counsel sent (via e-mail) a four-plus-page, single-spaced letter to Plaintiffs’ counsel asserting that, notwithstanding assurances made at the July 28 meeting, “there remain serious deficiencies in Plaintiffs’ May 30 and July 24, 2009 document productions to [four] categories, that we request KCI correct immediately.” (Id. at Ex. 21, p. 1.) The letter thereafter identifies the four categories as:
“Research and development, conception and reduction to practice” (id.);
“Documents authored by Drs. Morykwas and Argenta supporting or refuting statements during prosecution that (a) to promote healing, the application of a negative pressure to the wound of about 0.1 is required; (b) if the pore size of the screen means is too small, the growth of new tissue will be inhibited” (id. at Ex. 21, p. 2);
“Correspondence between Plaintiffs and David S. Zamierowski, or otherwise concerning David S. Zamierowski, regarding his patents or negative pressures wound therapy, including all monies paid” (id.); and
“Prior art cited against Plaintiffs in the Related U.S. and Foreign Litigations and Patent Office Proceedings” (id. at Ex. 21, p. 3).
For each category, the letter offers a detailed description of documents Defendants perceive as missing from Plaintiffs’ prior production (as well as the basis for such perception and the related document request numbers) and asks for “immediate” or “prompt” production of the items at issue (or, alternatively, confirmation that such documents either “do not exist” or “that the production is complete with respect to these documents”). (Id. at Ex. 21, pp. 1-4.) Following that discussion, the letter states: “we assume, based on our document requests and Plaintiffs’ lack of substantive objections, that the production will include all expert reports, transcripts (depositions, hearing, trial, and appellate proceedings), affidavits and decisions from the Related Litigations and Proceedings.” (Id. at Ex. 21, p. 4 (emphasis added).) The letter gives examples of both documents and related actions and cites the corresponding document request numbers. (Id.)
Plaintiffs’ counsel later contended that, “[o]n August 28, 2009 [Plaintiffs’ counsel] responded to [the above-referenced] letter [from Defendants’ counsel] dated August 27, 2009, complaining about Plaintiffs’ document production.” (Id. at Ex. 23, p. 1.) According to Defendants’ counsel, however, Plaintiffs’ counsel’s “August 28 letter replied only with an acknowledgment that [Plaintiffs’ counsel] were ‘reviewing the specific questions raised … and will respond in due course, as production continues.’ ” (Id. at Ex. 24, p. 1.)
On September 25, 2009, Defendants’ counsel sent Plaintiffs’ counsel an e-mail stating in relevant part:
In reviewing KCI’s documents, it appears that KCI did not produce the requested documents concerning Zamierowski (See Doc Reqs 18-19), including documents referred to in our August 27 letter to you. We did not receive a substantive response to our August 27 letter. Please let us know promptly if you will produce the requested documents, or we will have to seek the Court’s assistance. We are available Monday [September 28, 2009] for a call if needed.
Also, please let us know, by Monday if possible, whether you will accept a subpoena for Dr. Zamierowski, or if we should serve it on him personally.
(Id. at Ex. 22, p. 2 (emphasis added).) According to Defendants’ counsel, based on their foregoing September 25 e-mail “another meet and confer [was set] for September 30[, 2009]. Plaintiffs did not provide any substantive response to [the above-quoted August 27 letter and September 25 e-mail] until hours before the September 30 meet and confer.” (Id. at 15 (internal footnote omitted).)
The record does reflect that, on September 30, 2009, Plaintiffs’ counsel sent Defendants’ counsel a letter (via e-mail) described as a “further response to the August 27 correspondence [from Defendants’ counsel].” (Id. at Ex. 23, p. 1.) The first substantive paragraph of the September 30 letter states as follows:
As a preliminary matter, we are compelled to address the mischaracterization that Plaintiffs did not provide substantive objections to Request Nos. 1, 2, 9, 35 and 36. As you are aware, Plaintiffs set forth substantive objections to each of the foregoing Requests pursuant to the Rules of Federal Civil Procedure in Plaintiffs’ Objections and Responses to Defendants’ First Set of Document Requests (“Plaintiffs’ Responses”). Defendants’ position is especially confounding with respect to Request Nos. 9, 35 and 36. In response to Request No. 9, Plaintiffs specifically noted that the Request is “overly broad and unduly burdensome and it seeks information not relevant to this case, nor reasonably calculated to lead to such information, particularly with respect to Defendants’ request regarding foreign patent offices.” Further, in response to Request Nos. 35 and 36, Plaintiffs did not agree to produce documents because these requests are, among other things, so overly broad that a complete response would require collecting, reviewing and potentially producing hundreds of thousands of pages of documents not relevant to this litigation. However, despite Plaintiffs’ objections to Request Nos. 35 and 36, in the spirit of cooperation, Plaintiffs have produced pleadings and court filings in connection with the U.S. litigation involving BlueSky and Richard Weston (Western District of Texas) and the current litigation involving Innovative Therapies, Inc. (Middle District of North Carolina). Plaintiffs will also include in their next document production the live or final pleadings from all related U.S. litigation.
(Id. (emphasis added).)
Said letter then addresses the four, above-quoted categories of documents discussed in Defendants’ counsel’s August 27 letter:
As to the first and second categories … all relevant, responsive non-privileged documents have now been produced.
As to the third category … such documents are requested in connection with Request Nos. 18 and 19—both of which Plaintiffs objected to in Plaintiffs’ Responses. In fact, Plaintiffs do not agree to produce any documents in response to Request No. 19. However, in an effort to avoid unnecessary delay and discord, to the extent such documents have not already been produced, Plaintiffs will produce agreements with Dr. Zamierowski and documents demonstrating monies paid to Dr. Zamierowski.
As to the fourth category … Plaintiffs object to request as set forth in Plaintiffs’ Responses. As to the specific request that Plaintiffs produce “all prior art cited by Smith & Nephew and/or Medela,” to the extent such documents have not yet been produced, Plaintiffs will include in their next document production the prior art references relied upon by Smith & Nephew and Medela in the current U.S. litigation.
(Id. at Ex. 23, p. 2 (italics in original; other emphasis added).)
According to ConvaTec, shortly after delivery of the foregoing letter, “[t]he September 30, 2009 meet and confer was held via telephone among [three of Defendants’ counsel] and Plaintiffs [sic] counsel including at least Mr. Macon.” (Id. at 15 n. 12.) ConvaTec reports that, during said meeting, in addition to reaffirming the document production commitments in the September 30 letter, “Plaintiffs’ counsel agreed to accept service of ConvaTec’s subpoena to Dr. Zamierowski … and [to produce] KCI’s marketing and analysis documents.” (Id. at 15-16 n. 12.)
On October 2, 2009, Defendants’ counsel sent (via e-mail) a three-plus-page, single-spaced letter to Plaintiffs’ counsel “to confirm [the] discussions at [the] September 30, 2009 meet and confer, and to point out KCI’s discovery deficiencies that still remain.” (Id. at Ex. 24, p. 1.) After describing the agreements reached regarding further document production by Plaintiffs, the letter declares that “[t]hese agreements, however, only cover a subset of the highly relevant documents that ConvaTec has been requesting for months.” (Id. at Ex. 24, p. 2.) The letter then details (including with citations to bates-numbers from related portions of Plaintiffs’ prior production, as well as the corresponding document request numbers) four issues as to which disputes remained: 1) “Dr. Zamierowski’s Deposition and Documents”; 2) “Other Documents From Related Litigations”; 3) “Drs. Argenta and Morykwas’ Documents”; and 4) “Communications and Meetings With Boehringer.” (Id. at Ex. 24, pp. 2-3.)
As to the first such category, Defendants’ counsel stated:
[I]n the spirit of cooperation, we are narrowing our requests here as a final effort to obtain these documents without motion practice, and without prejudice if the need arises for additional documents, as follows: All documents concerning any communications with David Zamierowski concerning (1) [the '880 patent] and/or any patent or patent application claiming priority to U.S. Patent Application No. 332,699, (2) wound drainage involving suction and/or wound healing involving suction, and/or (3) any agreements related to the foregoing. Additionally, yesterday I served upon you our subpoena to Dr. Zamierowski calling for the production of certain categories of documents. We request that KCI search its own files for these same categories of documents, which are subsumed by ConvaTec’s Document Requests to KCI, including, but not limited to, documents (1) concerning the prosecution or analysis of any patent naming Dr. Zamierowski as an inventor, (2) concerning the types of intermediate and covering layers disclosed in any patent naming Dr. Zamierowski as an inventor, and (3) concerning the use of a vacuum manifold to treat wounds. We believe that this sufficiently limits Conva-Tec’s requests to address your concerns.
Further, ConvaTec has requested all documents produced in the Related Litigations, which should include any production by or for Dr. Zamierowski in those litigations. KCI’s production of such documents appears to be incomplete, as many exhibits from Dr. Zamierowski’s prior deposition have not been produced.
(Id. at Ex. 24, pp. 2-3 (internal citations and footnote omitted) (emphasis added).)
As to the other three categories of documents that remained in dispute, the October 2 letter declares:
You indicated in your September 30 letter to me that KCI would only produce “pleadings and court filings” from the Related Litigations. Please confirm that KCI will also produce other relevant documents that are not pleadings and court filings …, such as contentions, expert reports, and deposition transcripts….
You indicated in your September 30 letter to me that KCI’s production of documents concerning Drs. Argenta and Morykwas’ research and development and conception and reduction to practice is complete. ConvaTec continues to disagree that this is the case because KCI has produced only select pages from certain laboratory notebooks, instead of producing the entire notebook. The entire notebooks are relevant and/or potentially necessary for at least the reasons of authenticity, ownership and context. Please immediately produce the entire laboratory notebooks….
KCI has only produced a small subset of emails concerning its meeting(s) with Boehringer. These emails indicate that KCI held one or more meetings with Boehringer regarding Boehringer’s proposed product. Documents concerning these meetings are highly relevant … and should be produced promptly. If no such non-privileged documents exist, then please state so.
(Id. at Ex. 24, p. 3 (internal citations omitted) (emphasis added).)
“For each of the[se] outstanding items,” Defendants’ counsel asked Plaintiffs’ counsel to “please advise by October 7 whether KCI will make a full production in response to those requests, and by when it will do so.” (Id. at Ex. 24, p. 2.) Defendants’ counsel further gave notice of their “availabilit[y] for a final meet and confer on or before October 7, 2009, to discuss the remaining outstanding issues if [Plaintiffs’ counsel] believe that is necessary.” (Id. (emphasis added).) Conva-Tec has reported that, as of October 22, 2009, “Plaintiffs ha[d] failed to respond to Conva-Tec’s October 2 letter….” (Docket Entry 57 at 15.)
As the foregoing letter indicates, the day before (October 1, 2009), with Plaintiffs’ consent, ConvaTec served Plaintiffs’ counsel with a subpoena for Dr. Zamierowski (including 19 requests for documents to be produced at the office of Defendants’ lead counsel on October 15, 2009). (Id. at Ex. 6.) Plaintiffs responded with objections to those document requests on October 15, 2009. (Id. at Ex. 7.) The format of those objections largely mirrored Plaintiffs’ response to ConvaTec’s earlier document requests. (Compare id. with id. at Ex. 2.) Plaintiffs set out “General Objections” (id. at Ex. 7, pp. 2-4), followed by 19 separate “Specific Objections to Document Categories for Production” (id. at Ex. 7, pp. 4-18). Each of these “Specific Objections” actually consisted (with but one exception) entirely of the same type of boilerplate as did Plaintiffs’ earlier objections. (Compare id. with id. at Ex. 2, pp. 2-29.) For example, as to “Document Category No. 1,” Plaintiffs’ counsel stated only:
Dr. Zamierowski objects to this document category to the extent it seeks for [sic] information that is neither relevant to the claim or defense of any party nor reasonably calculated to lead to such information, particularly with respect to foreign litigations and/or judicial proceedings and involving any “Related Patent Application.” Dr. Zamierowski also objects to this document category because it is unreasonably cumulative or duplicative, or the information can be obtained from another source that is more convenient, less burdensome, or less expensive. Dr. Zamierowski also objects to this document category because it places a burden on him that outweighs its likely benefit. Dr. Zamierowski also objects to this document category because it is overly broad and unduly burdensome. Dr. Zamierowski also objects to this document category to the extent it seeks to impose obligations beyond those required by the Federal Rules of Civil Procedure. Dr. Zamierowski also objects to the lack of timeframe in this document category.
(Id. at Ex. 7, pp. 4-5 (emphasis added).) All of the other 18 “Specific Responses” consist entirely of the foregoing and other stock phrases. (See id. at Ex. 7, pp. 4-18.)
Plaintiffs’ earlier response to Defendants’ First Set of Document Requests does differ from Plaintiffs’ above-cited response to the Zamierowski subpoena in one important respect; in the former response, Plaintiffs committed to produce some documents for most requests, whereas, in the latter response, Plaintiffs gave no indication that any documents would be produced as to any requests. (Compare id. at Ex. 2, pp. 3-29 with id. at Ex. 7, pp. 4-18.)
On October 16, 2009 (the day after service of the foregoing response), Defendants’ counsel sent Plaintiffs’ counsel an e-mail stating: “We received Dr. Zamierowski and KCI’s objections to ConvaTec’s subpoena to Dr. Zamierowski. Please let me know your availability for Monday, Oct. 19, for a meet and confer to discuss these objections.” (Id. at Ex. 27, p. 3 (emphasis added).)
On October 18, 2009, Plaintiffs responded to a subpoena Defendants’ counsel had served on Mr. Piper (the attorney who prosecuted and handled the re-examination of Plaintiffs’ patents at issue). (Id. at Ex. 13.) That response mirrored Plaintiffs’ response to the subpoena for Dr. Zamierowski; specifically, it consisted entirely of the same boilerplate objections and indicated no intent to produce any documents. (See id. at Ex. 13, pp. 2-13.)
On October 20, 2009, Defendants’ counsel sent another e-mail to Plaintiffs’ counsel; it stated: “[W]e did not receive a response to our request on [October 16, 2009] for a meet and confer yesterday. Please let us know promptly when you are available, so we can avoid unnecessarily burdening the Court. In addition to the Zamierowski subpoena, we want to discuss Plaintiffs’ objections to the Piper subpoena as well. Plaintiffs’ delay and refusals to cooperate are seriously hampering the case, given the fact discovery cutoff of December 3.” (Id. at Ex. 27, pp. 2-3.) Later that day, Plaintiffs’ counsel (in an email identified as from “Larry Macon”) responded: “I apologize but Karen [Guide, another of Plaintiffs’ eight attorneys of record] and I are separately out of state all week in depositions. What about 1:00 p.m. [on October 27, 2009,] for the call?” (Id. at Ex. 27, p. 2.).
Defendants’ counsel immediately replied: “[W]e are concerned that we cannot wait for a week to have the call, given the Dec. 3 discovery cutoff. We have discussed several times already our concerns about Plaintiffs’ responses. So there seems to be little need to wait a week for you to reconsider. We can have the call tonight after your deposition, but we are intending to seek the Court’s assistance unless Plaintiffs agree to provide full responses to ConvaTec’s requests.” (Id.) According to Defendants’ counsel, Plaintiffs did not respond further. (See id. at 15.)
On October 22, 2009, ConvaTec filed the instant Motion to Compel. (Docket Entry 56.) According to ConvaTec, as of the filing of said motion, “Plaintiffs ha[d] failed to respond to ConvaTee’s October 2 letter [seeking further production related to Defendants’ First Set of Document Requests], and the document deficiencies [cited in the letter] remain[ed]. In addition, … Plaintiffs, as well as [Dr. Zamierowski and Mr. Piper], objected to the subpoenas [to said witnesses] in their entirety and did not produce any documents.” (Docket Entry 57 at 15.)
As to its First Set of Document Requests, ConvaTec contended that Plaintiffs failed to produce requested documents regarding:
“Dr. Zamierowski’s prior art patents’ wound dressing and treatment methods, including the so-called ‘Zam patch’ (Requests Nos. 18-19, 36)”;
Drs. Argenta and Morykwas’ research work “concerning among other things the use of pressures below 80 mm Hg (Request Nos. 1-4, 7,10,17)”;
“Plaintiffs’ 2007 meetings(s) with Defendants Boehringer (Request No. 25)”; and
“Plaintiffs’ marketing and sales documents concerning competitors in the marketplace (Request Nos. 32-33, 38-39).” (Docket Entry 56 at 1-2).
On November 16, 2009, Plaintiffs responded to ConvaTec’s instant motion. (Docket Entries 63 and 64.) In so doing, Plaintiffs argued that ConvaTec “premature[ly]” moved to compel and “refused to wait for a meaningful meet and confer.” (Docket Entry 64 at 2, 7.) Plaintiffs also contended that they were “not withholding or refusing to produce relevant, responsive, non-privileged documents sought by ConvaTec in its Motion to Compel. In fact, Plaintiffs have produced, to the best of their knowledge, all documents sought by the Motion to Compel.” (Docket Entry 64 at 1 (italics in original) (underline emphasis added).)
On November 17, 2009, the parties’ counsel held a conference regarding the discovery requests underlying ConvaTec’s instant Motion to Compel. (Docket Entry 65 at Ex. 31, pp. 1-2.) In connection with that meeting:
“Plaintiffs stipulate[] that they are only withholding privileged documents regarding Plaintiffs’ meetings with Boehringer” (id. at Ex. 31, p. 1);
Plaintiffs agreed to “investigate the existence of any inventors’ lab notebooks and to the extent they exist and contain relevant information will produce them or make them available for inspection” (id. at Ex. 31, p. 2);
Plaintiffs agreed to “investigate the existence of patient records that support research performed by Drs. Argenta and Morykwas. If the patient records exist and have been produced, Plaintiffs will identify the bates numbers. If the records exist and have not been produced, Plaintiffs will produce them subject to [federal health information privacy] restrictions.” (id.);
Plaintiffs stated that they had no record of receiving the letter from Defendants’ counsel dated October 2, 2009, narrowing Defendants’ requests regarding Plaintiffs’ communications with Dr. Zamierowski (id.); and
Plaintiffs agreed “to determine if any documents were withheld from [Dr. Zamierowski’s files] under any relevancy objections” and “to determine if [Mr. Piper’s law firm] withheld any documents on the basis of any relevancy objections” (id).
On November 19, 2009, ConvaTec filed its Reply asserting that areas of dispute remained, including due to Plaintiffs’ “refus[al] to produce any substantive documents from their files concerning Dr. Zamierowski,” failure to produce “the inventors’ complete notebooks,” and Plaintiffs’ continued reliance on the qualification that they have produced all “relevant” documents. (Docket Entry 65 at 3, 5, and 8 (emphasis in original).) On November 30, 2009, and again on December 2, 2009, Plaintiffs sent Defendants a “Supplemental Document Production” to address, respectively, the lab notebook issue and Defendants’ request for Plaintiffs’ documents regarding Dr. Zamierowski. (Docket Entry 73 at Exs. F and G.) On December 9, 2009, Plaintiffs filed a Sur-Reply opposing the instant motion on the grounds that they complied with their discovery duties. (Docket Entry 73.)
In discussing ConvaTec’s instant Motion to Compel, the Court first sets out the standard for compelling production of documents and then addresses Plaintiffs’ contentions regarding ConvaTec’s alleged premature filing of the instant motion (including its purported failure to consult properly prior to moving to compel), as well as the parties’ substantive arguments regarding Plaintiffs’ responses to ConvaTec’s discovery requests.
In assessing a motion seeking an order requiring production of documents, the Court must consider the scope of discovery, the rules for requesting production of documents and responding to such requests, the obligations of counsel during discovery, and the procedure governing motions to compel.
“The purpose of discovery is to provide a mechanism for making relevant information available to the litigants.” Fed.R.Civ.P. 26 advisory committee’s notes, 1983 Amendment. Accordingly, under the Federal Rules of Civil Procedure (the “Rules”), “[u]nless otherwise limited by court order, … [parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense ….” Fed.R.Civ.P. 26(b)(1) (emphasis added). “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. See also Elkins v. Broome, No. 1:02CV305, 2004 WL 3249257, at *2 (M.D.N.C. Jan.12, 2004) (unpublished) (“[R]elevancy at discovery is a far different matter from relevancy at trial. At discovery, relevancy is more properly considered synonymous with ‘germane’ as opposed to competency or admissibility.”); Flora v. Hamilton, 81 F.R.D. 576, 578 (M.D.N.C.1978) (“It is clear that what is relevant in discovery is different from what is relevant at trial, in that the concept at the discovery stage is much broader.”).
However, “[a]ll discovery is subject to the limitations imposed by Rule 26(b)(2)(C).” Fed.R.Civ.P. 26(b)(1). That cross-referenced provision sets out the following limitations:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
Fed.R.Civ.P. 26(b)(2)(C) (emphasis added). See also Nicholas v. Wyndham Int’l Inc., 373 F.3d 537, 543 (4th Cir.2004) (“Even assuming that this information is relevant (in the broadest sense), the simple fact that requested information is discoverable … does not mean that discovery must be had. On its own initiative or in response to a motion for protective order under Rule 26(c), a district court may limit [such discovery] … if it concludes that [a limitation in Rule 26(b)(2)(C) applies].”); Fed.R.Civ.P. 26(c)(1) (stating that “court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or from undue burden or expense, including … forbidding … discovery [or] … inquiry into certain matters, or limiting the scope of … discovery to certain matters”).
Notwithstanding the foregoing limitations, the United States Court of Appeals for the Fourth Circuit has declared that “[d]iscovery under the Federal Rules of Civil Procedure is broad in scope and freely permitted.” Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir.2003) (emphasis added). Moreover, the commentary to the Rules indicates that “[a] variety of types of information not directly pertinent to the incident in suit could be relevant to the claims or defenses raised in a given action. For example, other incidents of the same type, or involving the same product, could be properly discoverable under the [governing] standard.” Fed.R.Civ.P. 26 advisory committee’s notes, 2000 Amendment, Subdivision (b)(1).
The Rules provide a number of discovery devices, including requests for production of documents, see Fed.R.Civ.P. 34. Under this Rule, “[a] party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect [and] copy … any designated documents or electronically stored information—including writings … and other data or data compilations—stored in any medium ….” Fed. R.Civ.P. 34(a). See also Fed.R.Civ.P. 34(c) (providing that, through the use of a subpoena under Rule 45, “a nonparty may be compelled to produce documents”); Fed.R.Civ.P. 45 advisory committee’s notes, 1991 Amendment, Subdivision (a) (“The non-party witness is subject to the same scope of discovery under [Rule 45] as that person would be as a party to whom a request is addressed pursuant to Rule 34.”). “The request: (A) must describe with reasonable particularity each item or category of items to be inspected; [and] (B) must specify a reasonable time, place, and manner for the inspection….” Fed.R.Civ.P. 34(b)(1). Accord Fed.R.Civ.P. 45(a)(1)(A)(iii) (providing that subpoena must “specif[y] time and place … [for witness to] produce designated documents”); Fed. R. Civ. 45(c)(3)(A) (“[T]he issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply….”).
“The party to whom the request is directed must respond in writing within 30 days after being served. A shorter or longer time may be stipulated to [by the parties provided any extension does not interfere with dates set for the close of discovery or any hearing or trial] or be ordered by the court.” Fed. R.Civ.P. 34(b)(2)(A). “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.” Fed. R.Civ.P. 34(b)(2)(B) (emphasis added).
Accord Fed.R.Civ.P. 45(c)(2)(B) (“A person commanded to produce documents … may serve on the party or attorney designated in the subpoena a written objection to inspecting [or] copying … any or all of the material….The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.”); Fed.R.Civ.P. 45(d)(1)(A) (“A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize them to correspond to the categories in the demand.”). “[A]n evasive or incomplete … response must be treated as a failure to … respond.” Fed.R.Civ.P. 37(a)(4).
As one court has summarized it:
[T]here are only three appropriate responses to a request for production of documents: (1) an objection to the scope, time, method and manner of the requested production; (2) an answer agreeing to the requested scope, time, place, and manner of production; or (3) or [sic] a response offering a good faith, reasonable alternative production, which is definite in scope, time, place or manner.
Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173 F.R.D. 651, 656 (D.Md.1997). Although “[a] party may file a hybrid answer, which objects to some of the requested production, while answering the unobjectionable portions,” id. at 656 n. 14, “a response to a request for production of documents which merely promises to produce the requested documents at some unidentified time in the future, without offering a specific time, place and manner, is not a complete answer as required by Rule 34(b) and, therefore, pursuant to [the provision now codified at Rule 37(a)(4) ] is treated as a failure to answer or. respond,” id. at 656.
Further, “[w]hen a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A). Accord Fed.R.Civ.P. 45(d)(2)(A) (adopting same rule for subpoenaed items withheld “under a claim that it is privileged or subject to protection as trial-preparation material”). See also United States v. Bornstein, 977 F.2d 112, 116 (4th Cir.1992) (holding that one who invokes a privilege “bear[s] the burden of proving that [it] applies”); RLI Ins. Co. v. Conseco, Inc., 477 F.Supp.2d 741, 751 (E.D.Va.2007) (“[I]t is incumbent upon the proponent to specifically and factually support his claim of privilege.”).
Finally, magistrate judges in at least five district courts in the Fourth Circuit have declared boilerplate objections to discovery requests, including for documents, invalid. See, e.g., Barb v. Brown’s Buick, Inc., No. 1:09CV785, 2010 WL 446638, at *1 (E.D.Va. Feb. 2, 2010) (unpublished) (“Defendant’s objections to plaintiffs Request for Production of Documents are, again, nothing more than boilerplate and are stricken, except with regard to any legitimate privilege objections for which a privilege log is submitted along with discovery responses.”); Hy-Ko Prods. Co. v. Hillman Group, Inc., No. 5:09MC32, 2009 WL 3258603, at *2 (E.D.N.C. Oct.8, 2009) (unpublished) (“In the usual instance, objections to discovery which simply recite stock phrases are not colorable. Generally, the mere cry of burdensomeness or irrelevance without any statement in support of these objections is disfavored by the court.” (internal citation omitted)); Mills v. East Gulf Coal Preparation Co., 259 F.R.D. 118, 132 (S.D.W.Va.2009) (“Objections to Rule 34 requests must be stated specifically, and boilerplate objections regurgitating words and phrases from Rule 26 are completely unacceptable.”); Cappetta v. GC Servs. Ltd. P’ship, No. 3:08CV288, 2008 WL 5377934, at *3 (E.D.Va. Dec. 24, 2008) (unpublished) (“Just as with relevance objections, merely stating that a discovery request is ‘over-broad’ or ‘unduly burdensome’ will not suffice to state a proper objection.”); Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 364 (D.Md.2008) (“[B]oilerplate objections that a request for discovery is ‘over-broad and unduly burdensome, and not reasonably calculated to lead to the discovery of material admissible in evidence’ … are improper unless based on particularized facts.” (internal citation omitted)); Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co., Inc., 246 F.R.D. 522, 528 (S.D.W.Va.2007) (“There is abundant caselaw to the effect that boilerplate objections to Rule 34 document requests are inappropriate.”); Sabol v. Brooks, 469 F.Supp.2d 324, 329 (D.Md.2006) (“[The non-party served with a subpoena containing document requests] did not particularize its objections to these requests, and instead used the boilerplate objections that this Court repeatedly has warned against, thereby waiving its objections.”); PLX, Inc. v. Prosystems, Inc., 220 F.R.D. 291, 293 (N.D.W.Va.2004) (“The mere recitation of the familiar litany that an interrogatory or document production request is overly broad, burdensome, oppressive and irrelevant will not suffice.” (internal quotation marks omitted)).
By Local Rule, this Court has directed “counsel to conduct discovery in good faith and to cooperate and be courteous with each other in all phases of the discovery process.” M.D.N.C. R. 26.1(b)(1) (emphasis added). Moreover, the Rules mandate that:
[E]very discovery request, response, or objection must be signed by at least one attorney of record … or by the party personally, if unrepresented…. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry … a discovery request, response, or objection [is] … (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
Fed.R.Civ.P. 26(g)(1)(B) (emphasis added).
“Rule 26(g) imposes an affirmative obligation to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37.” Fed.R.Civ.P. 26 advisory committee’s notes, 1983 Amendment, Subdivision (g) (emphasis added). “[T]he spirit of the [R]ules is violated when advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues….” Fed.R.Civ.P. 26 advisory committee’s notes, 1983 Amendment. See also Mills, 259 F.R.D. at 130 (“The civil discovery process is to be engaged in cooperatively.”); Wagner v. St. Paul Fire & Marine Ins. Co., 238 F.R.D. 418, 422 (N.D.W.Va.2006) (“Gamesmanship to evade answering [discovery requests] is not allowed.”).
The certification requirement in Rule 26(g) thus “obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.” Fed.R.Civ.P. 26 advisory committee’s notes, 1983 Amendment, Subdivision (g) (emphasis added). See also id. (“The signing requirement means that every discovery request, response, or objection should be grounded on a theory that is reasonable under the precedents or a good faith belief as to what should be the law.”). Moreover, Rule 26(g) “requires that the attorney make a reasonable inquiry into the factual basis of his response, request, or objection.” Id.
By signing a Rule 26(g) certification, an attorney “certifies that [he or she] has made a reasonable effort to assure that the client has provided all the information and documents available to [the client] that are responsive to the discovery demand.” Id. (emphasis added). See also Fed.R.Civ.P. 37 advisory committee’s notes, 1993 Amendments, Subdivision (a) (“[Discovery requests] should not be read or interpreted in an artificially restrictive or hypertechnical manner to avoid disclosure of information fairly covered by the discovery request, and to do so is subject to appropriate sanctions under [Rule 37(a) ].”).
“If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.” Fed.R.Civ.P. 26(g)(3) (emphasis added). This provision “mandates that sanctions be imposed on attorneys who fail to meet the standards established in the first portion of Rule 26(g).” Fed.R.Civ.P. 26 advisory committee’s notes, 1983 Amendment, Subdivision (g). See also id. (“Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions.”); M.D.N.C. R. 83.4 (providing that, “[i]f an attorney or a party fails to comply with a local rule of this court, the court may impose sanctions against the attorney or party, or both” and authorizing litigation-based and monetary sanctions).
Despite the unambiguous dictates of the Rules (including Rule 26(g)) and related local rules (like this Court’s Local Rule 26.1(b)(1)) that require attorneys to conduct discovery in a cooperative fashion, courts continue to find that “[h]ardball discovery … is still a problem in some cases ….” Network Computing Servs. Corp. v. Cisco Sys., Inc., 223 F.R.D. 392, 395 (D.S.C.2004) (noting that such conduct “is costly to our system and consumes an inordinate amount of judicial resources”). See also Frontier-Kemper, 246 F.R.D. at 530 (“[T]his court encounters discovery disputes involving boilerplate and other inappropriate objections far too frequently.”); Jayne H. Lee, Inc., 173 F.R.D. at 656 (“As with interrogatories, answers to requests for production of documents are also subject to frequent abuse during pretrial discovery.”). Accordingly, although the Rules provide that the “primary responsibility for conducting discovery … rest[s] with the litigants, [who are] obliged to act responsibly and avoid abuse,” Fed.R.Civ.P. 26 advisory committee’s notes, 1983 Amendment, Subdivision (g), the Rules also “acknowledge[] the reality that [the discovery process] cannot always operate on a self-regulating basis,” Fed.R.Civ.P. 26 advisory committee’s notes, 1983 Amendment, Subdivision (b).
The Rules thus afford a number of mechanisms for litigants to seek judicial intervention in discovery disputes, including authorizing “[a] party seeking discovery [to] move for an order compelling an answer, designation, production, or inspection. This motion may be made if … a party fails to respond that inspection will be permitted … as requested under Rule 34.” Fed.R.Civ.P. 37(a)(3)(B) (emphasis added). Accord Fed.R.Civ.P. 45(c)(2)(B) (“If an objection [to production of documents] is made … the serving party may move the issuing court for an order compelling production or inspection.”). A motion to compel “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed.R.Civ.P. 37(a)(1). See also M.D.N.C. R. 37.1(a) (“The court will not consider motions and objections relating to discovery unless moving counsel files a certificate that after personal consultation and diligent attempts to resolve differences the parties are unable to reach an accord…. [A]t any party’s request, the conference may be held by telephone.”).
Over the course of more than four decades, district judges and magistrate judges in the Fourth Circuit (including members of this Court) have repeatedly ruled that the party or person resisting discovery, not the party moving to compel discovery, bears the burden of persuasion. See, e.g., Wagner, 238 F.R.D. at 424-25 (citing with approval another court’s observation that “courts have long held that the burden is on the objecting party to show why an interrogatory is improper and while the burden is on the moving party to seek court action, the burden of persuasion remains at all times with the objecting party” (internal quotation marks omitted)); United Oil Co., Inc. v. Parts Assocs., Inc., 227 F.R.D. 404, 411 (D.Md.2005) (“Generally, the burden is on the party resisting discovery to clarify and explain precisely why its objections are proper given the broad and liberal construction of the federal discovery rules. This includes, of course, where the resisting party asserts that the discovery is irrelevant.”); Elkins, 2004 WL 3249257, at *2 (Dixon, M. J.) (“It is the rule in federal court that the burden is on the party resisting discovery on relevancy grounds to support his objection; it is not the party’s burden propounding discovery, at least in the first instance, to show relevancy.”); Spell v. McDaniel, 591 F.Supp. 1090, 1114 (E.D.N.C. 1984) (“[T]he burden of showing that the requested discovery is not relevant to the issues in this litigation is clearly on the party resisting discovery.”); Flora, 81 F.R.D. at 578 (Gordon, C.J.) (“[T]he burden of showing that the requested discovery is not relevant to the issues in the case is on the party resisting discovery.”); Rogers v. Tri-State Materials Corp., 51 F.R.D. 234, 247 (N.D.W.Va.1970) (“The burden is upon the objecting party to show that her objections to the interrogatories should be sustained.”); Pressley v. Boehlke, 33 F.R.D. 316, 318 (W.D.N.C.1963) (“[T]he burden is on defendant to show his objections to interrogatories should be sustained.”).
In addition to establishing a process for judicial resolution of discovery disputes, “Rule 37 provides generally for sanctions against parties or persons unjustifiably resisting discovery.” Fed.R.Civ.P. 37 advisory committee’s notes, 1970 Amendment. More specifically:
If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
Fed.R.Civ.P. 37(a)(5)(A) (emphasis added).
Conversely, because “‘[t]he great operative principle of [Rule 37] is that the loser pays,’ ” Biovail Corp. v. Mylan Labs., Inc., 217 F.R.D. 380, 382 (N.D.W.Va.2003) (quoting Rickels v. City of South Bend, 33 F.3d 785, 786 (7th Cir.1994)), it further directs that:
If the motion [to compel] is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney’s fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.
Fed.R.Civ.P. 37(a)(5)(B) (emphasis added).
See also Fed.R.Civ.P. 37(d)(1)(A)(ii) (“The court … may, on motion, order sanctions if … a party, after being properly served with … a request for inspection under Rule 34, fails to serve its answers, objections, or written response.”).
As an initial matter, because Plaintiffs argue that, before filing this motion, ConvaTec “[r]efused to wait for a meaningful meet and confer” (Docket Entry 64 at 7), the Court considers ConvaTec’s compliance with the consultation requirements of Rule 37(a)(1) and Local Rule 37.1(a), see Discussion, supra, p. 243. In this regard, the Court notes first that the record before it generally reflects that Defendants’ counsel diligently sought the cooperation of Plaintiffs’ counsel to obtain documents responsive to Defendants’ First Set of Document Requests, including by instigating numerous conferences and by sending detailed communications outlining alleged shortcomings in Plaintiffs’ responses. See Background, supra, pp. 229-30, 231-32, 232-33, 234-35, 236, 237. Conversely, the record before the Court indicates that Plaintiffs’ counsel at times failed to promptly respond or, in some cases, to respond at all to Defendants’ counsel’s inquiries about document production. See id. at 231, 233, 235-36, 236-37.
For example, on October 2, 2009, Defendants’ counsel e-mailed Plaintiffs’ counsel a lengthy letter describing remaining areas of disagreement as to Defendants’ original document request (served more than five months earlier). See id. at 234-35. At the letter’s end, Defendants’ counsel solicited a “final meet and confer on or before October 7, 2009,” (Docket Entry 57 at Ex. 24, p. 2); however, it seems Plaintiffs’ counsel never responded (id. at 15). Similarly, on October 16, 2009, Defendants’ counsel sought (by email) a conference with Plaintiffs’ counsel on October 19, 2009, to discuss Plaintiffs’ objections to the Zamierowski subpoena, see Background, supra, p. 236; however, Plaintiffs’ counsel failed to respond, despite the fact that, during the intervening time, Plaintiffs’ counsel served Defendants’ counsel with objections to the Piper subpoena, see id.
On October 20, 2009, Defendants’ counsel again requested a conference and explained the need for urgent action (i.e., the looming close of fact discovery), but Plaintiffs’ counsel would not agree to meet for another week (citing litigation obligations of two of Plaintiffs’ eight attorneys of record without explaining why the other six lacked the ability to confer). See id. at 237. Defendants’ counsel then made a final request for a conference during the evening (after lead Plaintiffs’ counsel’s out-of-state depositions broke for the day), but Plaintiffs’ counsel did not respond. See id.
In light of all these circumstances, the Court does not find that ConvaTec failed to comply with the consultation requirements of Rule 37 and Local Rule 37.1, before it filed the instant motion. Even if one focused only on the final sequence of events (which the Court deems too limited a perspective), Defendants’ counsel began seeking a meeting on October 16, 2009, and waited until October 22, 2009, to move to compel. That six-day window afforded Plaintiffs a sufficient opportunity to engage on these issues, particularly given Defendants’ legitimate concern about the impending discovery deadline and the fact that Plaintiffs had numerous other counsel of record (in addition to the two attorneys who had other work commitments). See Tustin v. Motorists Mut. Ins. Co., No. 5:08CV111, 2009 WL 3335060 (N.D.W.Va.Oct.14, 2009) (unpublished) (rejecting notion that scheduling conflicts of one attorney of record justified failure to respond to consultation request where party had other counsel); Miller v. Pruneda, 236 F.R.D. 277, 282 (N.D.W.Va.2004) (holding that “[s]even days is a reasonable amount of time to wait for a response to an attempt to confer” in ruling that movant “made a good faith effort” sufficient to warrant adjudication of motion to compel “on its merits”).
The Court also rejects Plaintiffs’ argument that ConvaTec “premature[ly]” filed the instant motion because, at the time, “[f]act discovery [wa]s ongoing” and “Plaintiffs will supplement their production according to the Rules of Civil Procedure.” (Docket Entry 64 at 2.) Plaintiffs have cited no authority for this proposition. Neither the Rules nor this Court’s Local Rules require a party to defer seeking relief for an opposing party’s failure to comply with discovery until discovery ends. See Fed.R.Civ.P. 37; M.D.N.C. R. 37.1. Similarly, the Joint Stipulated Scheduling Order did not direct the parties to file a motion to compel only after the close of fact discovery. (See Docket Entry 37.) Nor would such a requirement make sense; litigants reasonably might wish to file a motion to compel prior to the expiration of any discovery period in order to obtain the requested information in time to use it in shaping the conduct of other discovery.
“Furthermore, the promise to continue to search for records and supplement [one’s] responses in the future, is a completely inadequate response to a long standing discovery request….” Aerodyne Sys. Eng’g, Ltd. v. Heritage Int’l Bank, 115 F.R.D. 281, 284-85 (D.Md.1987). To the extent Plaintiffs base their “prematurity” argument on the notion that “ConvaTec is complaining that Plaintiffs have not produced documents according to a time table ConvaTec unilaterally imposed” (Docket Entry 64 at 2), they fail to persuade. As set out above, the Rules authorize a requester to specify the deadline for document production and permit the responder to seek relief from unreasonably short response times. See Discussion, supra, pp. 240. In many cases, if the responder proposes an alternative to the requester’s specified production time, the two sides can reach common ground “‘and the discovery will be had without court intervention.’ ” Jayne H. Lee, Inc., 173 F.R.D. at 655 (quoting 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2213 (2d ed.1994)).
Often problems arise, however, because:
[Attorneys comply with half of what Rule 34(b) requires—they file a written response, but they do not agree to the requested time, place and manner of production, or … propose a reasonable alternative method. Rather, they give the vague assurance that the requested documents will be produced [at an unspecified future time]. This practice assures continued wrangling and negotiating before the documents ultimately are produced … [and] frequently derails the discovery process, because parties often wait to schedule depositions until after document production has occurred.
Id. Something akin to that phenomena seems to have occurred in this case. See Background, supra, pp. 229-36. Notably, when the “wrangling and negotiating” began, Defendants did not immediately move to compel due to Plaintiffs’ failure to produce all the requested documents by the date Defendants had specified; instead, initially Defendants simply pressed Plaintiffs for a more definite statement about when Plaintiffs would complete production and, only after several months passed, began insisting on final completion of all production. See id. at 230, 231-32, 232-33, 234-35.
On the record before it, the Court finds nothing unreasonable about Defendants’ actions in this regard. More importantly, however, if Plaintiffs believed that Defendants sought to impose an unreasonable “time table” for production of documents, “the proper response by [Plaintiffs] would have been to [make] its incomplete [production] and move to enlarge the time for [serving] its complete [production], with an estimate of how much time would be needed.” Association of American Physicians and Surgeons, Inc. v. Clinton, 837 F.Supp. 454, 457 (D.D.C.1993). See also Aerodyne Sys., 115 F.R.D. at 289-90 (condemning party for “failing] for over six months to respond adequately and in a timely fashion to [opposing party’s] interrogatories and requests for production of documents” without “seeking] an extension of time within which to comply … [or] a protective order regarding the discovery requests”). “Instead, [Plaintiffs] decided [they] would [make] an incomplete [production] and then supplement it whenever [they] pleased….” Association of American Physicians, 837 F.Supp. at 457. It thus appears Plaintiffs, not Defendants, sought to unilaterally dictate the time table as to this matter and that Defendants responded reasonably to that situation by filing the instant motion in due course, not prematurely. The Court therefore will address the merits of Defendants’ Motion to Compel.
As detailed above, in response to both Defendants’ First Set of Document Requests and the Zamierowski and Piper subpoenas, Plaintiffs asserted a variety of boilerplate objections. See Background, supra, pp. 229-30, 236. In light of the authority previously discussed, see Discussion, supra, pp. 241-42, objections of this sort do not suffice. By failing to present valid objections to these discovery requests, Plaintiffs “waived any legitimate objection [they] may have had.” Mancia, 253 F.R.D. at 364. Accord Frontier-Kemper, 246 F.R.D. at 528-29 (discuss.ing authority for proposition that plaintiff waived objections by relying on mere boilerplate in responding to document requests); Sabol, 469 F.Supp.2d at 329 (“[The non-party served with a subpoena containing document requests] did not particularize its objections to these requests, and instead used the boilerplate objections that this Court repeatedly has warned against, thereby waiving its objections.”). Cf. Phillips v. Dallas Carriers Corp., 133 F.R.D. 475, 477 (M.D.N.C.1990) (“It is well settled that the failure to make a timely objection in response to a Rule 34 request results in waiver ….” (internal citations omitted)).
An additional ground exists for finding that Plaintiffs waived any objections to Defendants’ First Set of Document Requests. Specifically, instead of responding that they would or would not provide documents “as requested” (as to the time for production) or “offering a specific time” as an alternative, Plaintiffs stated an intention to make some production at an unspecified date of its own choosing. See Background, supra, p. 229-30. Such a response “is not a complete answer as required by Rule 34(b) and, therefore, pursuant to Rule 37(a)(3) is treated as a failure to answer or respond.” Jayne H. Lee, Inc., 173 F.R.D. at 656.
Because, however, ConvaTee has not raised these waiver arguments in pressing its instant Motion to Compel, the Court will examine each disputed matter regarding Plaintiffs’ production of documents in response to Defendants’ First Set of Document Requests, as well as the Zamierowski and Piper subpoenas.
ConvaTec has moved to compel Plaintiffs to produce documents regarding Dr. Zamierowski as solicited by Document Requests 18, 19 and 36 from Defendants’ First Set of Document Requests. (Docket Entry 57 at 9.) Request 18 seeks communications with Dr. Zamierowski about the '880 patent, or any patent application “claiming priority to U.S. Appln 332,699, including but not limited to WO 90/11795, or concerning wound drainage involving suction or wound healing involving suction.” (Docket Entry 57 at Ex. 1, p. 9.) Request 19 seeks agreements with Dr. Zamierowski or others concerning the same issues in Request 18, as well as records of any related payments, royalties, or other transfer of rights. (Id.) Request 36 asks for “[a]ll documents produced by Plaintiffs in all Related Litigations.” (Id. at Ex. 1, p. 12.)
In their response to the instant Motion to Compel, Plaintiffs asserted that they “have produced all relevant, non-privileged documents concerning Dr. Zamierowski’s prior art patents.” (Docket Entry 64 at 3 (emphasis added).) Plaintiffs further noted that they objected to the document requests at issue “because the requests are overly broad, unduly burdensome and seek information that is not relevant to the case nor reasonably calculated to lead to such information[, as well as] … on the grounds that the requested documents are protected by the attorney-client-privilege, the work product doctrine, the investigative privilege and other applicable privileges.” (Id.) To support their claim of satisfactory production as to these matters, Plaintiffs allege that, “[s]ubject to [their] objections,” they produced the following: “references to Dr. Zamierowski’s patents within the previously produced file wrappers and reexamination files, as well as agreements with and payments from KCI, [and] over 14,000 pages of relevant, non-privileged materials from Dr. Zamierowski [that] were produced on October 30, 2009 at bates numbers ZAM00000001-ZAM00014102.” (Id. (emphasis added).) According to Plaintiffs, “there are no separate documents that concern the ‘Zam patch’ apart from the materials that have been produced.” (Id. at 4.)
By appending the adjective “relevant” as a qualifier to their otherwise sweeping declaration of compliance with Defendants’ requests and by reiterating that they produced documents “subject to” certain objections, Plaintiffs’ foregoing response confuses more than it clarifies. As another court has observed:
This type of answer hides the ball. It leaves the [opposing party] wondering … what documents are being withheld. Furthermore, it permits the defendant to be the sole arbiter of that decision. Such an objection is really no objection at all as it does not address why potentially responsive documents are being withheld. [The responding party], having no incentive to err on the side of disclosure, has arrogated to itself the authority to decide questions of relevance which is unquestionably the decision of the judge.
Athridge v. Aetna Casualty and Surety Co., 184 F.R.D. 181, 190 (D.D.C.1998). See also id. (opining that party’s statement regarding production of “ ‘relevant, non-privileged’ documents ‘subject to and without waiving’ [its] objection[s], serves only to obscure potentially discoverable information and provides no mechanism for either plaintiffs or the Court to review defendant’s decisions” (internal brackets omitted)). Accord Fresenius Med. Care Holding Inc. v. Baxter Int'l, Inc., 224 F.R.D. 644, 656 (N.D.Cal.2004) (“[The defendant] responds [to the plaintiffs motion to compel by asserting] that it ‘is not withholding any non-privileged, relevant responsive documents’ …, [however,] [the defendants’] assertion that it is not withholding any non-privileged documents is clearly limited by its unilateral designation of relevance…. [The defendant] must produce all non-privileged responsive documents….”); Mercer v. Allegheny Ludlum Corp., 125 F.R.D. 43, 46 (S.D.N.Y.1989) (“[Non-party] Goldman Sachs, through its counsel, answers [plaintiffs’ motion to enforce a subpoena requesting documents] in essence that counsel have looked at the Goldman Sachs files; that they have given to plaintiffs’ counsel everything relevant to the issues; and that plaintiffs must be content with that declaration—[T]his is not sufficient….Plaintiffs are not, in my judgment, required to accept the disclaimer of non-relevance from Goldman Sachs or its counsel in respect of documents which to date they have not been permitted to inspect.”).
Further, as the party opposing the motion to compel, Plaintiffs have the burden of persuading the Court that grounds exist to withhold any documents responsive to the requests at issue. See Discussion, supra, pp. 243-44. Plaintiffs’ response to the instant motion offers no argument (let alone supporting documentation) for any of the objections as to which they claimed their document production remained “subject” (i.e., over-breadth, burdensomeness, and relevance). (See Docket Entry 64 at 3-4.)