In Holley, et al. v. Gilead Sciences, Inc., et al., No. 18-cv-06972-JST(JSC) (N.D. Cal. April 2, 2021), California Magistrate Judge Jacqueline Scott Corley, in response to a request from the plaintiffs to modify their electronically stored information (ESI) production obligations, issued several modifications to prior ESI orders, including an order for mass social media discovery from 250 plaintiffs.

In this product liability case involving a large number of plaintiffs (at least 900 as of last May), Judge Corley noted: “The district court has created a bellwether plan that calls for a 24-case Phase I discovery pool and 6 early trial cases…The deadline for selection of the 24 Phase I discovery pool plaintiffs is May 10, 2021.”

In response to the plaintiff’s request to modify ESI production obligations, Judge Corley modified the prior ESI orders, which included this order for mass social media discovery from 250 plaintiffs:

“1. On or before April 30, 2021, Plaintiffs shall produce the Document Demand H social media ESI for a total of 250 Plaintiffs who have also submitted Plaintiff Fact Sheets. Plaintiffs have already produced social media ESI for 128 Plaintiffs. On or before April 9, 2021, Gilead shall identify for Plaintiffs an additional 122 Plaintiffs whose social media ESI shall be produced on or before April 30, 2021. Plaintiffs shall produce the social media ESI for the Plaintiffs identified by Gilead on a rolling basis with production complete by April 30, 2021. Should a Plaintiff selected by Gilead refuse to produce social media ESI (as opposed to certify that he/she does not have any discoverable social media), Gilead may identify a different Plaintiff who must produce the social media ESI.”

Judge Corley also stated these additional orders, addressing selection of plaintiffs for the Phase I discovery pool, timeline for production of social media ESI, search term negotiation and joint statement and discovery conference to address the status of those and other issues:

“2. Plaintiffs and Gilead may select any Plaintiff who has produced a Plaintiff Fact Sheet as part of their allotted selections for the 24-Plaintiff discovery pool. To the extent Plaintiffs select a Plaintiff who has not produced social media ESI by April 30, 2021, they must produce the selected Plaintiffs’ social media ESI by the time of selection. The Court assumes that if any of the other selected Plaintiffs have not produced the required social media ESI (selected randomly or by Defendant) the ESI will be produced as part of the discovery process.

3. Going forward, Plaintiffs must produce their social media ESI within 90 days of the submission of their Plaintiff Fact Sheet. For the backlog of Plaintiffs whose Fact Sheets were produced more than 90 days ago, Plaintiffs shall meet and confer with Gilead regarding a plan to catch-up their production. The Court will discuss this plan at the May 18, 2021 discovery conference.

4. With respect to Gilead’s request for additional search terms, Gilead should narrow its list of proposed additional search terms in light of the Court’s guidance at the hearing. Once Gilead has narrowed the list, the parties shall meet and confer by videoconference regarding Gilead’s revised proposal.

5. The Court sets a further video discovery conference for May 18, 2021 at 9:00 a.m. The parties shall submit a joint statement by May 14, 2021 discussing (1) Plaintiffs’ proposal to catch-up on the outstanding social media ESI production, and (2) any remaining issues regarding search terms. To the extent that the parties have other disputes that they would like to discuss at that hearing, they must submit a discovery letter brief by May 11, 2021, i.e., one week before the conference, to have the dispute included on the agenda.”

So, what do you think?  Does this level of mass social media discovery seem warranted in a pharmaceutical product liability case?  Please share any comments you might have or if you’d like to know more about a particular topic.

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