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In re Denture Cream Products Liability Litigation

United States District Court, District Circuit

July 3, 2013



REGGIE B. WALTON United States District Judge.

The Procter & Gamble Distributing LLC, The Procter & Gamble Manufacturing Company, and The Procter & Gamble Company (collectively, “Procter & Gamble”) are defendants in a multidistrict litigation pending in the United States District Court for the Southern District of Florida, In re Denture Cream Products Liability Litigation, Civ. No. 09-2051 (S.D. Fla.). Currently before this Court is Procter & Gamble’s Motion to Compel the Production of Documents from Sarfez Pharmaceuticals, Inc. and Sarfez USA, Inc. and Memorandum of Law in Support (“Defs.’ Mem.”). After carefully considering the parties’ submissions, [1] the Court concludes for the following reasons that it must grant the defendants’ motion.


The plaintiffs in the In re Denture Cream Products Liability Litigation multidistrict litigation “allege that excessive use of the denture cream product, Fixodent, blocks copper absorption and ultimately leads to neurological injury.” Defs.’ Mem. at 2. In connection with the prosecution of their case, the plaintiffs paid third parties Dr. Salim Shah and his companies, Sarfez Pharmaceuticals, Inc. and Sarfez USA, Inc. (collectively, the “Sarfez Entities”) “over $300, 000 to perform a study in India, ” known as the Zinc/077/12 Study. Id. at 2; id., Exhibit (“Ex.”) B (November 26, 2012 Declaration of Dr. Salim Shah, Esq. (“2012 Shah Decl.”)) ¶ 4 (“Sarfez Pharmaceuticals is responsible for implementing [the] [Z]inc/077/12 [S]tudy that is being conducted in India.”)). The Study is intended “to determine how much copper, if any, is blocked, during exposure to Fixodent.” Id., Ex. B (2012 Shah Decl.) ¶ 4. According to Dr. Shah, the Study was to be completed and its results delivered by December 28, 2012, to Dr. Frederick K. Askari, who designed the Study. Id., Ex. B (2012 Shah Decl.) ¶¶ 4, 13.

The defendants “initially sought discovery regarding the Zinc/077/12 Study from [the] Plaintiffs, propounding document requests and interrogatories on [the] Plaintiffs on December 10, 2012.” Defs.’ Mem. at 3. The plaintiffs, however, represented that they did not have all of the documents relating to the Study, and responded that the requests were “more appropriately directed to Sarfez Pharmaceuticals.” Id. at 3-4; id., Ex. D (Plaintiffs’ Responses and Objections to Defendants The Procter & Gamble Distributing, LLC and The Procter & Gamble Manufacturing Co. Requests for Production Re Zinc/077/12 Study) at 5, 8-12, 14-16, 19-22, 25-31.

The defendants therefore sought the Zinc/077/12 Study, its underlying raw data, and other related materials from the Sarfez Entities. Defs.’ Mem. at 4; id., Ex. G (February 1, 2013 Subpoenas). The Sarfez Entities do not deny, see generally Resp’ts’ Opp’n, that they “served no objections or responses to the Sarfez Subpoenas, nor did they produce a privilege log, ” Defs.’ Mem. at 4. Instead, over the next two and a half months, the Sarfez Entities “produced in excess of 1500 pages of responsive discovery material, ” Resp’ts’ Opp’n at 3, but the defendants contend that the Sarfez Entities “failed to produce numerous responsive documents, ” Defs.’ Mem. At 5. The Sarfez Entities reply that they have been “cooperative at every request . . . and ha[ve] produced all documents within [their] possession and control.” Resp’ts’ Opp’n at 3.

The defendants have now moved to compel the Sarfez Entities to: “(i) produce all responsive documents; (ii) produce their computers for forensic imaging; and (iii) reimburse Procter & Gamble for the fees and costs incurred in connection with the Motion.” Defs.’ Mem. at 13-14.


A court from which a subpoena issues pursuant to Federal Rule of Civil Procedure 45 has the power to compel the production of documents from a nonparty witness. See In re Sealed Case, 141 F.3d 337, 341 (D.C. Cir. 1998). In considering a motion to compel the production of discovery, Rule 45 “‘requires that district courts quash subpoenas that call for privileged matter or would cause an undue burden.’” In re Micron Tech., Inc. Sec. Litig., 264 F.R.D. 7, 9 (D.D.C. 2010) (quoting Watts v. SEC, 482 F.3d 501, 508 (D.C. Cir. 2007)). “The burden lies on the party resisting discovery to show that the documents requested are either unduly burdensome or privileged.” Id.; Fed.R.Civ.P. 45(d)(1)(D); see also Millennium TGA, Inc. v. Comcast Cable Commc’ns LLC, 286 F.R.D. 8, 11 (D.D.C. 2012) (“The person objecting to production has a heavy burden to show that the subpoena should not be enforced.” (citing Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403 (D.C. Cir. 1984)).

When deciding a motion to compel, a court must consider first whether the discovery sought is relevant. Discovery obtained from a nonparty pursuant to Rule 45 has “the same scope as provided in Rule 26(b), thus promoting uniformity.” Advisory Committee Note to 1946 Amendment to Rule 45(d). In general, under Rule 26(b), “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed.R.Civ.P. 26(b)(1). For purposes of discovery, relevance is liberally construed. Burlington Ins. Co. v. Okie Dokie, Inc., 368 F.Supp.2d 83, 86 (D.D.C. 2005) (citing Rule 26(b)(1)); Food Lion, Inc. v.United Food & Comm’l Working Int’l Union, 103 F.3d 1007, 1012 (D.C. Cir. 1997)). Thus, “[t]he term relevance at the discovery stage is broadly interpreted to include information which is not admissible at the trial if the discovery appears to be reasonably calculated to lead to the discovery of admissible evidence.” Covertino v. DOJ, 565 F.Supp.2d 10, 12 (D.D.C. 2008). Therefore, with respect to a Rule 45 subpoena, “‘[a] request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the claim or defense of any party.’” Hesco Bastion Ltd. v. Greenberg Traurig LLP, No. 09-0357, 2009 WL 5216932, at *4 (D.D.C. Dec. 23, 2009) (citation omitted).

“The text of Rule 45 makes quite clear that parties and attorneys who issue subpoenas have an affirmative duty to prevent undue burden or expense to the persons subject to the subpoena, ” Millennium TGA, Inc., 286 F.R.D. at 11 (citing Fed.R.Civ.P. 45(c)(1)), which thus also requires

district courts in [a]ll discovery to consider a number of factors potentially relevant to the question of undue burden, including: whether the discovery is unreasonably cumulative or duplicative; whether the discovery sought is obtainable from some other source that is more convenient, less burdensome, or less expensive; and whether the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.

Watts, 482 F.3d at 509 (citations and quotation marks omitted). Accordingly, a court considering a motion to compel production pursuant to Rule 45 “has the discretion to limit discovery to prevent undue expense to third parties, even if the discovery sought is within the permissible scope” of the Federal Rules of Civil Procedure. Millennium TGA, Inc., 286 F.R.D. at 11.


A. Whether the Sarfez Entities have Waived Their Objections

As an initial matter, the Court notes that a nonparty may respond to a Rule 45 subpoena by “serv[ing] on the party or attorney designated in the subpoena a written objection” which “must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.” Fed.R.Civ.P. 45(c)(2)(B) (emphasis added). “‘The failure to serve written objections to a subpoena within the time frame specified by Rule 45(c)(2)(B) typically constitutes a waiver of such objections.’” Alexander v. FBI, 186 F.R.D. 21, 34 (D.D.C. 1998) (citation omitted). “However, ‘in unusual circumstances ...

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