Shark week, er, eDiscovery Case Week, continues today! In GlaxoSmithKline Biologicals SA v. Pfizer, Inc., No. 24-cv-512 (D. Del. July 7, 2026), Delaware Special Master Monté T. Squire granted plaintiffs’ motion to compel defendants to produce all non-responsive and non-privileged family members (other than logos, junk files, and blank HTM files) of responsive documents.

Case Background and Judge’s Ruling

In this case relating to claims against Defendants for infringement of certain patents relating to mRNA vaccine technology, the Court entered an ESI Order. Paragraph 5(h) of the ESI Order addressed the treatment of “child” documents within document families, providing that “[t]he parent-child relationships, i.e., the association between an attachment or embedded file and its parent document, must be preserved.” It also provided that “logos, junk files, and blank HTM files may be excluded from production” and that “[t]he receiving party may request a specific withheld attachment or embedded file if it has a good-faith basis for needing it, and the producing party will comply with reasonable requests.”

This dispute concerned defendants’ withholding of non-responsive family members of responsive documents. According to GSK, Defendants had withheld more than 110,000 allegedly non-responsive attached and embedded files, replacing them with slipsheets in their document productions. In contrast, plaintiffs maintained that they had produced all non-responsive and non-privileged family members of responsive documents consistent with their understanding of the ESI Order.

The dispute implicated a prior ruling by Delaware District Judge Gregory B. Judge Williams in the related Moderna cases. In a consolidated opinion, Judge Williams rejected Moderna’s proposal to substitute slipsheets for non-responsive family members under an identically worded ESI Order provision.

In ruling here, Special Master Squire stated: “GSK’s Motion is GRANTED. The Special Master finds the Court’s prior ruling on this issue to be the most compelling consideration bearing on this dispute. In a consolidated Memorandum Opinion and Order docketed in all three related cases, including this action, Judge Williams considered Moderna’s request to substitute slipsheets for non-responsive family members of responsive documents…Moderna argued, as PBNT argues here, that non-responsive family members of responsive documents need not be produced and could instead be identified with slipsheets…Judge Williams rejected that position, agreeing with GSK that ‘such omissions may ‘render documents and email families incomprehensible, or nearly incomprehensible, and therefore useless.’’”

Special Master Squire found defendants’ argument that the Court’s ruling does not control this litigation to be “unpersuasive”, stating: “First, the Court’s consolidated opinion was docketed in this case as D.I. 75. The opinion thus put PBNT on unequivocal notice of the Court’s views on the production of non-responsive family members under an identically worded ESI Order provision. PBNT cannot credibly claim ignorance of Judge Williams’ ruling or GSK’s position when the opinion was entered on the docket in the very case in which PBNT was a party.”

Continuing, he said: “Second, the Court’s reasoning rested on well-established discovery principles that apply with equal force here. The Court’s concern that withholding non-responsive family members could render responsive documents ‘incomprehensible, or nearly incomprehensible, and therefore useless’ is not case-specific and applies to the instant dispute. Third, PBNT’s argument that ‘this [issue] was never brought before the Court’ in the PBNT action…is unavailing. As far as the Special Master can tell, this issue was never separately raised before Judge Williams in this case because PBNT’s conduct during the ESI Order negotiations led GSK reasonably to understand that the parties had reached a resolution consistent with the Court’s ruling or that the issue was dropped by PBNT. Had PBNT raised the issue earlier or made clear its intent to withhold non-responsive family members on this basis, GSK likely would have raised the issue earlier and prevailed before Judge Williams based on the ruling in the Moderna cases. PBNT should not benefit now from its decision not to raise the issue earlier or otherwise make clear to GSK its interpretation of the ESI Order’s provision and practice of not producing non-responsive family members notwithstanding the Court’s decision.”

Special Master Squire also rejected PBNT’s argument that the Court’s ruling is inapplicable because GSK has “not identified a single document, email family, or category of documents that it contends is rendered incomprehensible without the inclusion of these non-responsive attachments”, stating: “the rationale underlying the ruling, that non-responsive family members provide necessary context to responsive documents, applies categorically, not document by document. Requiring GSK to demonstrate incomprehensibility for each of the more than 110,000 withheld documents before compelling production also would effectively shift PBNT’s discovery obligations to GSK. Moreover, GSK has no reliable way to identify which of the more than 110,000 missing attachments might provide important context because it has never seen those documents.”

He also rejected defendants’ burden arguments, stating: “the burden is largely of PBNT’s own making. Had PBNT complied from the outset, as GSK did, or even made clear to GSK that it was withholding attachments to otherwise responsive emails as non-responsive where the attachments did not hit on the agreed-upon search terms, PBNT would not now face a compressed timeline.” So, he granted plaintiffs’ motion to compel defendants to produce all non-responsive and non-privileged family members (other than logos, junk files, and blank HTM files) of responsive documents

So, what do you think? Do you agree with the Special Master’s ruling to order defendants to produce all non-responsive and non-privileged family members? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today.

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