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In re Taxotere (Docetaxel) Products Liability Litigation

United States District Court, E.D. Louisiana

May 30, 2019


         SECTION: “H” (5)



         Before the Court is Sanofi's Motion for Review of Discovery Order Regarding PSC's In Camera Correspondence and Videos (Doc. 6744). For the following reasons, the Motion is DENIED.


         In his Order and Reasons dated April 1, 2019 (Doc. 6616), Magistrate Judge North held that Sanofi was not entitled to certain materials relating to work done by Dr. Curtis Thompson, Plaintiffs' testifying expert, and other retained non-testifying experts for the Plaintiffs. After reviewing the materials in camera, Judge North held that the documents were protected work product, and the videos were of a similar nature. He ruled that none of the materials were discoverable.

         After Judge North rendered his decision, some developments occurred. Plaintiffs produced to this Court as part of their briefing on this Motion an email dated September 3, 2018. Defendants are seeking this email because it was referenced on one of Dr. Thompson's invoices. The email is between Dr. Thompson and Plaintiffs' non-testifying consulting expert, Dr. Alexa Poole. Plaintiffs aver that the communication does not relate to this case and that Dr. Thompson mistakenly listed this email on his invoice. Plaintiffs state that the email “concerns the potential for independent research and the possibility of an exchange of specimens from persons who are not plaintiffs in this case.”[1]

         In addition, on May 9, 2019, in response to a subpoena served on AIVITA Biomedical, Plaintiffs produced a set of emails between Dr. Thompson and Dr. Poole, who is a follicular stem cell researcher at AIVITA Biomedical. Defendants speculate, based on the contents of these emails, that they were not produced to Judge North. Based on this speculation, Defendants further speculate that Plaintiffs are withholding other materials.


         Federal Rule of Civil Procedure 72(a) addresses orders by magistrate judges on non-dispositive pretrial matters. Under the rule, a district judge must consider timely objections to such an order and “modify or set aside any part of the order that is clearly erroneous or is contrary to law.”[2] The “clearly erroneous” standard applies to the factual components of a magistrate judge's ruling, while the legal conclusions are reviewable de novo.[3] Under the “clearly erroneous” standard, a court must affirm a factual finding of the magistrate judge “unless ‘on the entire evidence [the court] is left with a definite and firm conviction that a mistake has been committed.'”[4]Regarding legal conclusions, a ruling is reversible only if the judge “misinterpreted or misapplied applicable law.”[5] The district court “may not disturb a magistrate judge's determination on a nondispositive matter merely because it could have been decided differently.”[6] Accordingly, this standard is considered “extremely deferential.”[7]


         In 2010, drafters of the Federal Rules of Civil Procedure amended Rule 26 to provide “work-product protection against discovery regarding . . . attorney-expert communications.”[8] With the 2010 amendments came the addition of Rule 26(b)(4)(c), which the drafters added to protect attorney-expert communications “regardless of the form of communications, whether oral, written, electronic, or otherwise.”[9] The addition of this provision “is designed to protect counsel's work product and ensure that lawyers may interact with retained experts without fear of exposing those communications to searching discovery.”[10]

         Judge North evaluated the videos at issue and found that because the videos showed communications involving lawyers, the videos were not discoverable. He explained his reasoning to Sanofi during a hearing on April 11, 2019:

Because these are videos. They're videos of consulting experts in a room talking to lawyers. That's what they're videos of. By providing that video to a testifying expert is no different than putting the testifying expert in the room with the lawyers and the consulting expert, and you're not entitled to discovery of what happens in that meeting because it's with the lawyers. That's what these videos are and that's why they're not discoverable. They're experts meeting with counsel in the litigation.[11]

         Sanofi argued that the science described in the video is discoverable, and Judge North rejected the argument: “This is a meeting of an expert with the lawyers ...

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