In the case In re Tasigna (Nilotinib) Prods. Liab. Litig., No. 6:21-md-3006-RBD-DAB, (MDL No. 3006) (M.D. Fla. Sept. 18, 2023), Florida Magistrate Judge David A. Baker, among other rulings, dismissed the plaintiffs’ argument that ESI in their social media should be searched using search terms, stating: “Subject to the timeframes and any other limits parties have agreed to, Plaintiffs’ social media ESI will be produced in full.”
Case Background
In this drug multidistrict litigation (MDL) member case involving the chronic myeloid leukemia drug Tasigna (nilotinib) from Novartis, the Court entered an Order regarding the scope of allowable additional case-specific discovery in five individual Middle District of Florida cases, including guidelines for Novartis’ discovery of ESI from Plaintiffs. Novartis was directed to designate with particularity the discovery sought from Plaintiffs, and to meet and confer to agree on the proper scope; any unresolved objections were required to be presented to the Court within fourteen days of designation and were not to exceed five pages.
There were four areas of disagreement, which the Court addressed at a hearing on September 15, 2023.
Judge’s Ruling
Regarding Plaintiffs’ social media, Judge Baker stated: “Plaintiffs argue that ESI in their social media should be searched using search terms. Novartis argues Plaintiffs should use a tool such as ‘Download Your Information’ to produce everything that is pulled. Novartis has made the showing that search terms cannot be tailored sufficiently to capture responsive social media postings, particularly given the often casual nature of such discourse. Subject to the timeframes and any other limits parties have agreed to, Plaintiffs’ social media ESI will be produced in full. If an individual Plaintiff’s circumstance are unusual, the individual Plaintiff can seek further protection from the Court. If broad areas of the downloads have nothing to do with the matters in this case and there is a way to segregate such material, after the appropriate meet and confer, Plaintiff can file a motion for further limitation.”
Regarding search terms to be used on ESI in electronic devices, Judge Baker stated: “Plaintiffs state that they “intend to conduct a reasonable, manual search” of their devices for any responsive documents without the use of search terms…To the extent they intend to perform a manual search on their devices, unless they are going to undertake to certify that they have reviewed every piece of ESI in the device during the manual search and nothing responsive has been found, the devices should be put through a technical search process to apply search terms in finding the responsive documents. With respect to the search terms that Defendants proposed, Plaintiffs’ objections to certain terms…are overruled.”
Regarding production of ESI from the estate representative for a deceased Plaintiff, Judge Baker stated: “Estate Representatives do not need the produce anything to comply. Plaintiffs intend to produce responsive documents from the social media of a deceased Plaintiff to the extent that it is accessible. If an issue is raised in a particular case, then such discovery requests can be revisited.”
Regarding additional discovery requests from Novartis, Judge Baker stated: “Plaintiff objects to Novartis’s discovery requests beyond the discovery that, they argue, is contemplated by the sixteen categories in the Plaintiff Fact Sheets…The definitions and limits in the PFS Order-Agreement…are not necessarily limiting with the discovery at issue here. Therefore, Plaintiffs’ objections are overruled, and Novartis can proceed with its requests. This discovery is subject to the caveat that if there is an individual and specific class of communications or genuine burden beyond the ordinary, following a meet and confer of the parties, they may request a hearing. Plaintiffs have not made a showing beyond a ‘broad brush’ for the burdensomeness of the discovery sought… With respect to employment-related discovery and photographs, Plaintiffs’ objections are overruled. If there is something unusual in a particular Plaintiff’s case, counsel can confer about producing such files, and if no agreement is reached, the Court can revisit the issue. As to the photographs, those are easy to search for the faces and dates with available metadata tools.”
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So, what do you think? Are you surprised that the Court ordered production of Plaintiffs’ social media ESI in full? Please share any comments you might have or if you’d like to know more about a particular topic.
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There’s an undertone of “show me you’re tried first” in the Court’s approach. Ordinarily, I’d blanch at a Court ordering wholesale turnover of a party’s content without effort to assess potential relevancy, but this case may be another instance of objections mounted without metrics. I hear the Court saying, “Don’t just say ‘no’ but first try to separate wheat from chaff and then come back with ideas when you know more about the data.”
Thanks, Craig! I doubt there were metrics provided (there often aren’t), but I’m wondering about privacy considerations with (typically) so many plaintiffs in an MDL, each of which are tied to multiple social contacts, all of which are about to have some of their personal data produced, even if the content has nothing to do with the case.
I like short case rulings because they’re easy to cover, but it would have been helpful to know a bit more of the rationale behind the court’s decision on this one.
Like it or not, no one who posts broadly on a social networking site has an expectation of privacy (as contrasted to, say, exchanging a DM via a social networking site with a single individual). Being that it’s an MDL. I’d assume your privacy concerns here would be addressed in a protective order at the outset of the case. Yet, in the instant case, the parties took that approach and submitted an agreed order—which the Court struck two years ago with the docket notation, “Such orders are disfavored in this District. The Court will enforce private confidentiality agreements; they need not be blessed by court order.” So, best guess, they recast the proposed order as an agreement between the parties.
I love free PACER, don’t you?