The discovery rules are full of references to concepts of reasonableness and proportionality. They acknowledge that the disclosure of every marginally relevant fact or document is neither possible nor warranted. But what does reasonableness mean when it comes to the super-relevant fact or document? This was a question considered by the U.S. District Court for the Northern District of Ohio as part of In re: National Prescription Opiate Litigation, Case No. 1:17-MD-2804 (N.D. Ohio Oct. 14, 2020).
One of the key issues in the Opiate multidistrict litigation (MDL) is whether manufacturers’ suspicious order monitoring systems (SOMS) were adequate, and so the plaintiffs have unsurprisingly honed in on audits of those SOMS in discovery. For a period apparently lasting several months, however, two manufacturers and their outside auditor claimed that they could not find one of the SOMS audits. The SOMS audit turned up only after the plaintiffs suggested that the manufacturers and auditor’s e-discovery vendor might have omitted collecting certain email attachments due to an improperly configured de-duplication technique. Frustrated that the manufacturers and auditor had not discovered this issue on their own, the plaintiffs then moved for significant sanctions: an order barring the manufacturers from asserting good-faith reliance on their SOMS in any MDL case.
The Northern District of Ohio did not grant the plaintiffs’ request for a liminal sanction. But it did order significant additional document discovery and depositions, as well as certifications of compliance from the manufacturers. In the process, it was highly critical of the manufacturers and auditors’ investigation. Among the issues the court flagged were these:
- Although the manufacturers knew that two employees had received the SOMS audit, they only searched the custodial files for one.
- Although the auditor had met with 10 other employees to prepare the SOMS audit, the manufacturers did not search the custodial files for any of those employees.
- The manufacturers also did not appear to have asked the employees known to have received the SOMS audit whether they had shared it with others.
- The manufacturers did not appear to have asked their auditor to double-check its production when the SOMS audit was not included as an attachment to an email.
Though the court acknowledged that no one has an “endless obligation to chase down any old responsive document,” a reasonably diligent search is “defined by the circumstances.” And given the importance of the SOMS audit, the court considered the manufacturers and auditors to have missed “obvious clues.”
It is impossible to know from the outside just what caused the SOMS audit to elude the manufacturers and auditors on the first-pass review. But this case is concerned less with the root cause and more with the response: It should remind litigators that reasonableness is context-dependent, and courts will not accept minimum effort when it comes to uncovering the super-relevant facts and information.
Joseph V. Schaeffer is an attorney with Spilman Thomas & Battle, PLLC, in Pittsburgh, Pennsylvania.
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