United States: Clone Wars

Last Updated: January 31 2019
Article by James Beck

Defendants in prescription medical product liability litigation are at an inherent disadvantage in discovery already. Our clients have lots and lots of electronically stored information and old-fashioned paper documents. Plaintiffs . . . not so much. With our opponents having many categories of information to choose from, we think that it's not that much to ask the other side at least to provide a reasonably detailed, case-specific set of document requests – and in many cases that's what happens. But all too often, the same kind of sloth that leads to plaintiffs' parking their cases by the thousands in MDLs to avoid having to do any work also shows through in discovery.

Hence, we have to deal with "cloned discovery." We agree with the court in Barrella v. Village of Freeport, 2012 WL 6103222, at *2 (E.D.N.Y. Dec. 8, 2012), which, when faced with the plaintiff's demand for "all deposition transcripts and discovery produced" in prior litigation, retorted that the plaintiff "can and should conduct his own discovery" and that the federal rules "do[] not permit a party to obtain discovery obtained in a separate lawsuit . . . simply because that party maybe does not wish to spend his own time or money." Id. at *2.

If you've never heard of the term "cloned discovery" before, "[t]he name derives from the fact that the plaintiffs are attempting to clone the discovery taken by others in unrelated cases." Wollam v. Wright Medical Group, Inc., 2011 WL 1899774, at *1 (Mag. D. Colo. May 18, 2011).

[I]n this case the cloned discovery seeks all "documents and things produced," "transcripts of each, any, and all depositions," "all reports by experts by any party," and "all other discovery responses served by any defendant" in the following:

[A]ny action from January 1, 2001, to the present, in any state or federal court in the United States, or in a foreign court or tribunal, where it was claimed or alleged that an artificial hip designed, manufactured, or distributed by a Wright entity failed in such a way that the component known as the "modular neck" corroded, fretted, or fractured, regardless of whether that exact language was used.

Id. (citation to plaintiff's discovery requests omitted). Not only is this kind of discovery request lazy as sin (and often an attempt to avoid limits on the number of requests for production), but it's inherently improper, particularly after the 2014 amendments to Rule 26(b)(1), which redefined the scope of discovery to include only: "any nonprivileged matter that is relevant to any party's claim or defense." By definition, "all" of the discovery from a prior case is not going to be "relevant" to a subsequent personal injury case involving different plaintiff injured at a different time and place.

Unfortunately, these considerations don't stop lazy lawyers – even when they get pushback. The "issue" in such cases is "whether discovery taken in other, unrelated, and as yet unidentified cases . . . is relevant to the claims of these plaintiffs." Id. Wollam said, "no way":

[A] party seeking discovery ordinarily must do their own work and request the information they seek directly and must make proper requests describing the information in which they are interested. Direct requests allow a court to consider the relevance of the information sought to the specific claims and defenses in the pending case. A request for all discovery in unidentified actions taken worldwide with the single similarity that those actions involve the alleged failure of [the same product] does not allow such review. Discovery is intended to be liberal, but it is not unbounded. The sweeping cloned discovery sought by the plaintiffs has not been shown to be sufficiently relevant to the claims and defenses in this case and simply reaches too far. . . . It is not clear to me that any showing would be sufficient to justify an order requiring the disclosure of all discovery made or received by the . . . defendants in unknown and unspecified cases.

Id. at *2. See Fields v. Wright Medical Technology, Inc., 2017 WL 3048867, at *3 (N.D. Ind. July 19, 2017) ("to the extent that Plaintiff is requesting that the Court compel Defendants to produce information merely because it has been produced in other cases, and she has not specifically requested the information contained in those documents in this case, that request is denied").

Cloned discovery has attracted our attention because it reared its ugly head again recently in Costa v. Wright Medical Technology, Inc., 2019 WL 108884 (D. Mass. Jan. 4, 2019), where the plaintiff actually got some benefit from this kind of slothful request. Costa viewed "cloned discovery" as "attractive to litigants because it can reduce the burden and expense of obtaining relevant information and help the parties narrow the issues in dispute." Id. at *1. While Costa rejected the plaintiff's request for "all documents and data" from cases involving "distinct" products and from cases that "do not involve" that particular plaintiff's claimed failure mode, id. at *2, it did compel production of discovery from a prior case involving the same product and claimed failure mode. Id. We wouldn't even go that far – for the same reasons that prescription medical product liability litigation is never appropriate for class actions. Even if the device and failure mode are the same, every product liability plaintiff has a unique injury, at a different point in time, involving different medical treatment, medical history, and treating physicians. It may well be that a great majority of the documents are in fact discoverable in the subsequent case, but that does not excuse a plaintiff from following the rules and asking for them properly, and complying with applicable numerical limits on document requests.

Because this type of request is basically harassment – not one of the seven deadlies, but more pertinent to current litigation strategies designed to force settlement by driving up an opponent's costs − we thought we'd collect other pertinent authorities condemning cloned discovery. We found a number of cases refusing blanket discovery of documents produced in governmental investigations. Midwest Gas Services Inc. v. Indiana Gas Co., 2000 WL 760700 (S.D. Ind. March 7, 2000), the primary decision cited in Wollam, was not a drug/device case, but instead involved a demand for everything an antitrust defendant had turned over to the government in response to a Civil Investigative Demand. When the defendant refused, plaintiff unsuccessfully sought to compel:

"Cloned discovery", requesting all documents produced or received during other litigation or investigations, is irrelevant and immaterial unless the fact that particular documents were produced or received by a party is relevant to the subject matter of the instant case. . . . [P]laintiffs are interested in the content of documents and for that they must make proper requests describing the information in which they are interested. The plaintiffs' counsel must do their own work and request the information they seek directly.

Id. at *1. Similarly, in Drake v. Allergan, Inc., 2014 WL 12664971 (D. Vt. March 19, 2014), cloned discovery "which permits plaintiffs to obtain all of the materials furnished in the Department of Justice investigation" was denied because it "may result in surrender of documents that are totally irrelevant to the pending litigation." Id. at at *3. "Generally, courts discourage the use of criminal discovery requests as providing the framework for civil discovery demands in unrelated litigation due to the requirement that plaintiffs make specific requests for discovery related to their individual claims." Id. "The better approach to discovery here is to require Plaintiffs to make individualized demands based upon what may be relevant documents." Id. Accord Pensacola Firefighters' Relief Pension Fund v. Merrill Lynch Pierce Fenner & Smith, Inc., 265 F.R.D. 589, 597 (Mag. N.D. Fla. 2010) ("production of all of the documents produced to the SEC, without a more particularized request, could potentially allow plaintiff to bypass the limitations on the scope of discovery established by the Rules"); In re WorldCom, Inc. Securities Litigation, 2003 WL 22953645, at *7 (S.D.N.Y. Dec. 16, 2003) ("[w]hile the record generated by the Government's work may ease the burdens of the civil litigation, the civil litigants enjoy those benefits as a matter of convenience, not as of right"); In re Milk Products Antitrust Litigation, 84 F. Supp.2d 1016, 1026 (D. Minn. 1996) (denying cloned discovery seeking documents "already compiled by Defendants in response to subpoenas from the Antitrust Division of the United States Department of Justice"); Cook v. Rockwell International Corp., 147 F.R.D. 237, 245-46 (D. Colo. 1993) (denying plaintiffs' attempt "to piggyback on the very same discovery the grand jury conducted" in a prior criminal proceeding; "[w]hile materials relevant to Plaintiffs' case may overlap with those subpoenaed in [the criminal case], Plaintiffs must obtain those documents because they are relevant to the claims in this case, not simply because they were provided to the grand jury in its criminal investigation").

Concerning prior civil litigation, King County v. Merrill Lynch & Co., 2011 WL 34384913 (W.D. Wash. Aug. 5, 2011), relied on both Wollam and Midwest Gas, and explained that cloned discovery was improper because "without more, the Court cannot ascertain whether the documents requested actually relate to Plaintiffs' claims and defenses" in the current case. Id. at *3. Even if "some portion of documents encompassed by Plaintiffs' request may be relevant, the Court has no method of determining which of those documents are relevant, and which are not." Id. Heck, even if "each and every document" were discoverable, "Plaintiff must make proper discovery requests, identifying the specific categories of documents sought, in order to obtain them − and each category must be relevant to its claims and defenses.'" Id.

The first case we found that dealt with cloned discovery was Payne v. Howard, 75 F.R.D. 465 (D.D.C. 1977), which involved a blanket request for "pleadings" from a defendant's prior litigation. That's less broad than the "any and all" cloning requests we tend to see these days (which usually ask for everything), but Payne refused to allow even that:

Whether pleadings in one suit are "reasonably calculated" to lead to admissible evidence in another suit is far from clear. In the Court's view, discovery of this type of information typically will not lead to admissible evidence. . . . To date, there has been no inquiry into how let alone a showing that the pleadings sought by plaintiff are related to any of the issues raised in the instant case. Given that fact, and given also the unlikelihood that an adequate proffer could be made, the Court must conclude that the items sought are not "reasonably calculated" to lead to the discovery of admissible evidence.

Id. at 469.

Other cases denying cloned discovery requests are: In re Volkswagen "Clean Diesel" Marketing, Sales Practices, & Products Liability Litigation, 2017 WL 4680242, at *2 (Mag. N.D. Cal. Oct. 18, 2017) ("Plaintiffs are not entitled to complete access to the MDL Production simply because there may be an overlap between their claims and those [here]. They instead must serve requests for production on [defendant] in accordance with the Federal Rules."); Z Best Body & Paint Shops, Inc. v. Sherwin-Williams Co., 2017 WL 3730515, at *3 (Mag. C.D. Cal. Aug. 29, 2017) ("the broad request for all 'record and documents' produced by Defendant in [prior litigation] appears to be overbroad on its face"); Strickland v. Tristar Products, Inc., 2017 WL 2874621, at *1 (Mag. S.D. Ga. July 5, 2017) ("Plaintiffs are not entitled to 'all documents' and 'all depositions' in the 10 identified cases, regardless of the pertinence of those materials to the instant case. They simply must identify the materials more specifically than 'all.'"); Racing Optics v. Aevoe Corp., 2016 WL 4059358, at *1-2 (D. Nev. July 28, 2016) ("'Piggyback' discovery requests are prohibited. . . . [plaintiff] need[s] to specify which documents it want[s] and to demonstrate its relevance"), reconsideration denied, 2016 WL 4994961 (D. Nev. Sept. 16, 2016); Caves v. Beechcraft Corp., 2016 WL 355491, at *2 (Mag. N.D. Okla. Jan. 29, 2016) (cloned discovery seeking "any and all testimony concerning any other litigation, regardless of connection to the accident or [product] at issue, is clearly objectionable"); Town of Westport v. Monsanto Co., 2015 WL 13685105, at *3 (Mag. D. Mass. Nov. 5, 2015) (cloned discovery "requests for all discovery and deposition testimony from all [prior] litigation [involving the same chemical] is overly broad"); Capital Ventures International v. J.P. Morgan Mortgage Acquisition Corp., 2014 WL 1431124, at *1-2 (D. Mass. Apr. 14, 2014) ("plaintiff indiscriminately pursues wholesale production of all testimonial materials from all employees in all [prior] cases or investigations"; "This request for 'cloned discovery' is, like the request for testimonial materials, overbroad and of speculative relevance."); Burke v. Ability Insurance Co., 291 F.R.D. 343, 355 (D.S.D. 2013) ("The court will not compel defendants to produce all documents from prior litigation when [plaintiff] has not established how they will be relevant or what that prior discovery contains"); Wiand v. Wells Fargo Bank, N.A., 2013 WL 6170610, at *3 (Mag. M.D. Fla. Nov. 22, 2013) (cloned discovery held "overbroad on its face for failing to specify any subject matter of the sought-after documents. By asking for 'all documents produced . . .' in the other litigation, the scope of the request is far too expansive."); In re Cathode Ray Tube (CRT) Antitrust Litigation, 2013 WL 183944, at *1-4 (N.D. Cal. Jan. 17, 2013) (rejecting overseas litigant's cloned subpoena to "produce all discovery related to the [prior] action" under similar analysis); Pegoraro v. Marrero, 281 F.R.D. 122, 132 (S.D.N.Y. 2012) (cloned discovery denied as "overly broad in its scope because it seeks all documents in connection with any [similar] litigation or proceeding involving the defendants, regardless of the specific nature of the proceeding and factual circumstances underlying those proceedings"); N.J. Carpenters Health Fund. v. DLJ Mortgage Capital, Inc., 2012 WL 13135408, at *1, slip op. (S.D.N.Y. March 2, 2012) (rejecting "monkey see/monkey do" discovery; plaintiffs' "request that says 'you gave some documents to the government concerning another investigation, so give them to me' is DENIED"); Bean v. John Wiley & Sons, Inc., 2012 WL 129809, at *2 (D. Ariz. Jan. 17, 2012) (cloned discovery concerning "similar" but "different" prior litigation denied); Eisai Inc. v. Sanofi-Aventis U.S., LLC, 2011 WL 5416334, at *8 (Mag. D.N.J. Nov. 7, 2011); (cloned discovery held "irrelevant, unlikely to lead to the discovery of admissible evidence in this matter, and that production of same would unduly burden Defendants"); Chen v. Ampco System Parking, 2009 WL 2496729, at *2-3 (Mag. S.D. Cal. Aug. 14, 2009) ("similarities between the [prior] cases and this case . . . are not enough to require a carte blanche production of all documents from the state cases"; "Plaintiff must specifically ask for the documents he wants and be able to demonstrate that the information he seeks is relevant to his claims in this case") (emphasis original); American Eagle Outfitters, Inc. v. Payless Shoesource, Inc., 2009 WL 152712, at *1 (Mag. E.D.N.Y. Jan. 21, 2009) (cloned discovery "seek[ing] broad categories of documents relating to every litigation in which the defendant has ever been involved where [similar] violations have been alleged" denied as "considerably overbroad"); Moore v. Morgan Stanley & Co., 2008 WL 4681942, at *5 (Mag. N.D. Ill. May 30, 2008) ("just because the information was produced in another lawsuit . . . does not mean that it should be produced in this lawsuit"); Kormos v. Sportsstuff, Inc., 2007 WL 2571969, at *3 (Mag. E.D. Mich. Sept. 4, 2007) (plaintiff's cloned discovery demanding "copies of any and all other legal complaints filed by other plaintiffs against Defendant" held "as overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence"); Wyeth v. Impax Laboratories, Inc., 248 F.R.D. 169, 171 (D. Del. 2006) (a "request for all documents from the [prior] Litigation is overly broad. The Court finds that [requestor] has not demonstrated why it is entitled to documents from the [prior] involving matters not at issue in this litigation"); Oklahoma v. Tyson Foods, Inc., 2006 WL 2862216, at *2 (Mag. N.D. Okla. Oct. 4, 2006) ("Plaintiffs appear to equate 'similarity to a prior lawsuit' to relevant to a claim or defense in the current proceeding. The Court cannot accept that this conclusion is automatic.").

It's bad enough for our clients to be subjected to asymmetrical discovery over and over again. It would be worse to allow plaintiffs to recreate that asymmetry in any case they choose, merely by demanding all the discovery that took place previously in other cases. Cloned discovery is an abusive practice that always should be resisted.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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James Beck
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