In Cooley v. C.R. Bard, Inc., No.: 3:22-cv-1754-MMA-KSC (S.D. Cal. Jan. 25, 2024), California Magistrate Judge Karen S. Crawford granted in part the defendant’s motion to compel production of plaintiff’s unpublished autobiography, finding it relevant to the case and not disproportionate to the needs of the case. Judge Crawford also ruled that the plaintiff’s privacy objections could be resolved through a protective order, as she had already shown the autobiography to third parties.

Case Discussion

This case was one of thousands of products liability cases filed against defendants based on their development and sale of retrievable inferior vena cava (“IVC”) filters, which included allegations that the filter fractured and fragments of the filter have lodged themselves in her heart, lung, and spine.

During plaintiff’s deposition, she revealed she has been writing an as-yet unpublished autobiography. Specifically, when asked whether she had visited any message boards or other forums in connection with her IVC filter or lawsuit, she responded in part, “I’ve written a book. It’s in there ….” Plaintiff responded by producing excerpts from three pages of the book, which, as construed by plaintiff, “mention or refer to the Bard IVC Filter” at issue in this case. Although defendants previously sought production of the whole book, they agreed to limit their request to “portions of the book covering from the year 2000 through the present, consistent with medical records discovery in this case.”

Plaintiff cited three objections in producing only the limited excerpts identified in her response to defendants’ discovery: (A) any pages other than those produced are categorically irrelevant to this action; (B) even if it is relevant, producing the entire draft autobiography is disproportionate to the needs of this case and needlessly infringes on the privacy rights of plaintiff and third parties; and, (C) even if the autobiography is otherwise discoverable, a small portion of the document is protected by the attorney-client privilege and cannot be disclosed.

Judge’s Ruling

In addressing the first objection, Judge Crawford stated: “This case is, broadly speaking, about how plaintiff’s life has been negatively impacted by the implantation of an allegedly defective inferior vena cava filter that fractured and caused her serious injury. Part of her means of showing the allegedly negative impacts on her life has been to testify that, post-fracture, she can no longer do the things in life that brought her joy, at least in some respects…Thus, depictions of plaintiff’s life, such as those likely to be contained in an autobiography, are relevant because they may rebut or bolster her claims about her limitations and the extent of her injuries. Even if, as plaintiff suggests, the autobiography touches upon subjects like faith and family that might not bear directly on her claims in this case, that does not bring the autobiography outside the broad scope of ‘relevant’ information contained in Rule 26…Accordingly, the Court concludes the autobiography is ‘relevant’ to plaintiff’s claims and the objection on the basis of irrelevance is OVERRULED.”

In addressing the second objection, Judge Crawford stated: “Plaintiff claims extensive, lifelong injuries in this case…As such, damages and the alleged limitations on plaintiff’s lifestyle will be dominant issues at trial. Any physical activities or limitations, or emotional distress described in plaintiff’s autobiography are clearly important factors for evaluating and resolving pertinent issues. Her autobiographical story, written in her own words, is clearly not otherwise accessible to defendant absent production in discovery. Further, minimal expense or difficulty in producing the discovery is anticipated, as plaintiff already has the manuscript in her possession. An extra few hundred pages of discovery is not excessive when compared to the fact that plaintiff has already produced 3,000 pages of medical records and, in part because of the MDL litigation, defendant has produced copious discovery relevant to this and other cases…Thus, the Court concludes that the information is subject to production under Rule 26(b)(1) and the benefits of producing this information outweigh the burden placed on plaintiff. Finally, although plaintiff suggests the information in the autobiography is “cumulative” of other discovery already produced in this case such as plaintiff’s deposition, the statements made in her autobiography, outside the context of litigation, will likely provide a more complete picture of plaintiff’s abilities and limitations, which is highly important. Accordingly, the objection based on proportionality is OVERRULED.”

To address privacy concerns, Judge Crawford did rule “that the names of third parties (and only their names) may be redacted to prevent the disclosure of their identities during discovery”. As for the claim regarding the unpublished autobiography containing privileged information, Judge Crawford ordered the parties to meet and confer over whether the Court should conduct an in camera review to rule on the claim of privilege and, if they couldn’t agree on that, the plaintiff would be required to “file competent evidence to support her contention that the attorney-client privilege applies to the redacted material”, which the Court would rule on.

So, what do you think? Does this seem like an appropriate approach to address an unpublished autobiography in a product liability claim? Please share any comments you might have or if you’d like to know more about a particular topic.

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