by Dechert LLP

Here are a few updates to some of our previous posts.

First, we posted about In re Aspartame Antitrust Litigation, ___ F. Supp.2d ___, 2011 WL 4793239 (E.D. Pa. Oct. 5, 2011), as we considered the case a promising development insofar as taxation of costs of production could exercise a restraining influence on the out-of-control cost and scope of ediscovery.  Well, we’d be remiss if we didn’t point out that the Third Circuit recently reversed that opinion.  See Race Tires America Inc v. Hoosier Racing Tire Corp., No. 11-2316, slip op. (3d Cir. March 16, 2012).  All is not lost, however.  While the Third Circuit held that such relief could not be obtained under the outdated language of the costs statute, it did recognize that there was another avenue that an aggrieved party could utilize:

"A responding party, however, may invoke the district court’s discretion under Rule 26(c) to grant orders protecting him from undue burden or expense in [complying with discovery requests], including orders conditioning discovery on the requesting party’s payment of the costs of discovery.  Here, neither [party] obtained a cost-shifting protective order.  We are consequently limited to shifting only those costs explicitly enumerated in §1920."

Slip op. at 28-29 (footnote omitted).  If the court seems sympathetic, this may be a useful avenue to try.

Second, we posted some time ago about Dobbs v. Wyeth Pharmaceuticals, 797 F. Supp.2d 1264 (W.D. Okla. 2011), in which a judge, post-Levine, held that a suicide claim involving a selective seratonin reuptake inhibitor (“SSRI”) was impliedly preempted under the Supreme Court’s “clear evidence” standard.  As we discussed in some of our Colacicco posts, the SSRI/suicide cases present the best available fact pattern that we know of for preemption.  The FDA reviewed the scientific data over and over again and held that it did not support a suicide warning, given that the condition SSRIs treat – depression – is itself a far more serious risk of suicide than anything else.  To this day, the FDA has not found sufficient data for adults over 26 (the plaintiff in Dobbs was 53 years old when he killed himself) to justify any warning.  Indeed, SSRI/suicide claims were what brought the FDA into the preemption arena to start with.

The Dobbs opinion did not dispose of every claim in the litigation, so it was not appealable.  We've recently received word from defense counsel that another decision has been rendered in Dobbs, disposing of the remaining claims.  Dobbs v. Wyeth Pharmaceuticals, No. CIV-04-1762-F, slip op. (W.D. Okla. March 16, 2012).  That order, which dismisses fraud claims that the plaintiff did not assert very strongly, see slip op. at 2 n.1, is not particularly important by itself.  It rejected those claims for failure to establish reliance, misrepresentation, or damages.  Id. at 8-10.  This dismissal, however, does make the earlier preemption ruling in Dobbs appealable – and that could be extremely important.  Dobbs could tell us whether “clear evidence” really means just that, or rather is some sort of judicial code for “no preemption ever.”  While we can’t rule it out, if an SSRI adult suicide claim is not impliedly preempted on a full record of the FDA’s review, it’s hard to think of any other warning claim that would be preempted.

We’ll be rooting for the defense in Dobbs through what is likely to be a long appellate process.

Third, friend of the blog Dan Cummins passed along to us another favorable ediscovery for defendants decision.  Sourdiff v. Texas Roadhouse Holdings, LLC, 2011 WL 7560647 (Mag. N.D.N.Y. Oct. 24, 2011).  It’s not particularly detailed, but Sourdiff continues the trend of broad discoverability of information that plaintiffs voluntarily post on social media sites.  In Sourdiff, plaintiff’s counsel was directed to turn over:

"any photographs, profile information, postings, messages, comments and status updates and/or other posts, including deleted content, that are in any way related to plaintiff's emotional or mental state, her physical condition, activity level, employment, this litigation, and the injuries and damages claimed by plaintiffs in their complaint in this action."

Id. at *1. Significantly, the order also encompasses “any deleted postings” made to any “to internet social networking sites maintained by plaintiff . . ., including Facebook and MySpace.”  Id.

Our posting about Sourdiff seemed to be a good time to update our research on the social media ediscovery issue.  We found one other useful decision, Davenport v. State Farm Mutual Automobile Insurance Co., 2012 WL 555759 (M.D. Fla. Feb. 21, 2012), in which the court ordered production of every photo of the plaintiff posted on any social media site, whether or not she posted them (that is, including “tags” by other people).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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