The shark image can only mean one thing – it’s time for Shark Week on the Discovery Channel!  Which also means it’s time for eDiscovery Case Week on eDiscovery Today, where we’ll cover five cases in the next five days!  In Sandoz, Inc. v. United Therapeutics Corp., No. 19-cv-10170 (D.N.J. June 16, 2021), the Special Master in New Jersey (retired District Judge Jose L. Linares) granted the relief requested by the defendant compelling Plaintiff RareGen, LLC to produce additional contextual text messages.

Case Background

In this case involving a dispute over the defendant’s exclusive deal with a device maker for prescriptions of its cardiovascular drug Remodulin (effectively shutting generic competitors out of the market), the defendant sought an order compelling plaintiff RareGen to produce contextual text messages according to the same rules adhered to by the defendant and plaintiff Sandoz and consistent with the Special Master’s March 29, 2021 Order. The defendant asserted that plaintiff RareGen had produced text messages that only hit on specific search terms and objected to producing context-related messages, even though the defendant and plaintiff Sandoz had already done so. The defendant argued that these text messages that lacked any surrounding text messages to place them in context involved topics relevant to the defendant’s defenses and argued it was simply asking that all of the parties be treated in the same manner.

While not disputing the relevancy of the contextual text messages, plaintiff RareGen instead argued that the defendant’s request was untimely because it did not file the instant Motion before the close of fact discovery.  Plaintiff RareGen observed that before the March 29 order (which ordered the defendant to produce contextual text messages, but not specifically RareGen), the defendant had also taken the position that it only had to produce text messages that hit directly on search terms.

Once the order was issued, the defendant immediately requested that RareGen likewise produce context related text messages, making request to Raregen the day after the March 29 order and before the April 2nd end date for fact discovery…After the parties met and conferred could not resolved the issue, the defendant raised it with the Special Master by email on April 15.  The Special Master then issued a briefing schedule, and the defendant filed the instant motion in accordance with that schedule on April 28.

Special Master’s Ruling

Special Master Linares observed: “While it is true that, generally, motions to compel must be filed within the scheduled time for discovery, F.R.C.P. 37 provides no deadline for the filing of a motion to compel…Every case is distinguishable, particularly as to discovery matters which are very fact specific. In this particular case, in the interest of fairness to the parties and in light of the prior Order and Opinion on this topic, the Special Master holds that the Motion is not untimely. UTC made the request that is the subject of the instant Motion before the end of fact discovery. Expert discovery is ongoing and there is no trial date. UTC moved promptly to try to resolve the issue with Raregen, and when that did not occur, it promptly raised the issue with the Special Master. There was no undue delay by UTC.”

Continuing, Special Master Linares stated: “Accordingly, the Special Master holds that RareGen shall produce context-related text messages for each of the messages UTC has identified in Exhibit C to the Motion, including the preceding text message or responding text message, if they exist. If they do not exist, RareGen must so state, and provide an explanation based on information available to it why they do not exist…To be clear, the Special Master is not re-opening fact discovery or extending the fact discovery end date. Rather, the Special Master is permitting this limited fact discovery to proceed, in fairness to the parties and under the particular circumstances set forth above.”

So, what do you think?  What should parties do to ensure that contextual text messages are produced along with those that hit on search terms?  And how do you define those contextual text messages?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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