United States District Court, E.D. North Carolina, Southern Division
FREDRIC N. ESHELMAN, Plaintiff,
PUMA BIOTECHNOLOGY, INC. Defendant.
B. Jones, Jr. United States Magistrate Judge
Fredric N. Eshelman ("Eshelman") moves the court to
compel Defendant Puma Biotechnology, Inc. ("Puma")
to produce the calendars of two of its corporate officers.
[DE-149]. Puma opposes the motion. [DE-152]. For the reasons
set forth below, Eshelman's motion is denied.
February 2, 2'01"63 Eshelman filed a
complaint against Puma and Alan H. Auerbach
("Auerbach"), Puma's chief executive officer
and Board Chairman, asserting claims of libel per se
and libel per quod related to statements contained
in an allegedly defamatory investor
presentation. See [DE-1, -5]. Specifically,
Eshelman alleges that in the course of a proxy contest, Puma
posted a link on its investor-relations website to download
an "Investor Presentation" that contained
defamatory statements about Eshelman. Compl. [DE-5]
June 3, 2016, Eshelman served upon Puma his First Request for
Production of Documents, in which Eshelman sought "[a]ll
documents relating to the Proxy Contest." Pl.'s Mem.
[DE-150] at 2; Req. for Produc. of Docs. No. 10 [DE-44-1] at
9. The instructions provided within the discovery requests
defined the term "document" to include a
"calendar." [DE-44-1] at 4-5 ¶ 12.
term "relating to" was defined as "relating
to, reflecting, concerning, referring to, constituting,
embodying, connected to, in connection with, comprising,
regarding, evidencing, describing, identifying, stating,
analyzing, containing information concerning, and/or in any
way pertaining to the subject matter of this action."
Id. at 5 ¶ 13. "Proxy Contest" was
defined as "Dr. Eshelman's October 28, 2015
proposals to Puma's shareholders and all actions
undertaken in response to or relating to those
proposals." Id. at 4 ¶ 7. In response to
the document request, Puma produced the relevant and
non-privileged individual calendar entries for Auerbach and
Senior Investor Director Mariann Ohanesian
("Ohanesian") from July 2015 through February 2016,
which "relate on their face to the topics in
Eshelman's discovery requests." [DE-152] at 2, 6.
concedes Puma produced calendar entries that on their face
specifically reference either Eshelman or the proxy contest,
but contend this is insufficient to satisfy Puma's
discovery obligations. [DE-150] at 2. Eshelman takes the
position that Puma must produce Auerbach's and
Ohanesian's entire calendars for the period in question,
reasoning there may be relevant calendar entries that do not
expressly reference the proxy contest or Eshelman.
Id. Eshelman seeks to use the calendars as part of
his deposition questioning of Auerbach and Ohanesian in order
to "jog their memories" as to relevant topics that
may have been discussed at meetings but that Auerbach and
Ohanesian simply-do. not remember based on the
"vaguely-titled" calendar entries. Id. at
3. Eshelman contends that when aided by contemporaneous
emails and calendars, Auerbach and Ohanesian may remember the
relevance of a meeting that was otherwise not apparent.
asserts that it did not limit its review to documents that
explicitly mention the proxy contest or Eshelman, but rather
reviewed the calendar entries in context to determine if they
could reasonably be said to relate to the topics identified
in Eshelman's request. [DE-152] at 2; [DE-152- 1] at 1-2;
[DE-152-2] at 5-8. Puma contends that it has produced all
responsive and non-privileged documents, discharging its duty
to respond to the discovery request, and that producing the
calendars in their entirety would necessarily result in the
production of entries that are confidential, personal, and
unrelated to the claims and defenses in this case. [DE-152]
at 3-4, 6.
Standard of Review
of the Federal Rules of Civil Procedure provides the general
rule regarding the scope of discovery: "Parties may
obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional
to the needs of the case" Fed.R.Civ.P. 26(b)(1).
"Relevancy under this rule has been broadly construed to
encompass any possibility that the information sought may be
relevant to the claim or defense of any party."
Equal Emp't Opportunity Comm'n v. Sheffield Fin.
LLC, No. 1:06CV00889, 2007 WL 1726560, at *3 (M.D. N.C.
June 13, 2007) (internal quotation marks, alterations, and
citations omitted); Mainstreet Collection, Inc. v.
Kirkland's, Inc., 270 F.R.D. 238, 240 (E.D. N.C.
2010) ("During discovery, relevance is broadly construed
'to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear on, any
issue that is or may be in the case.'") (quoting
Oppenheimer Fund., Inc. v. Sanders, 437 U.S. 340,
351 (1978) (further citations omitted)). However, "[t]he
court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense[.]" Fed. R Civ. P. 26(c)(1); see
Sheffield Fin. LLC, 2007 WL 1726560, at *3 (citing
Fed.R.Civ.P. 26(c)); McDougal-Wilson v. Goodyear Tire
& Rubber Co., 232 F.R.D. 246, 249 (E.D. N.C. 2005)
("The court has the discretion to protect a party from
"oppression" or "undue burden or
expense."). "When the discovery sought appears
relevant... the party resisting the discovery has the burden
to establish the lack of relevance by demonstrating that the
requested discovery (1) does not come within the broad scope
of relevance as defined under . .. Fed.R.Civ.P. 26(b)(1), or
(2) is of such marginal relevance that the potential harm
occasioned by discovery would outweigh the ordinary
presumption in favor of broad disclosure." Sheffield
Fin. LLC, 2007 WL 1726560, at *3 (quoting Garrett v.
Sprint PCS, No. 00-2583-KHV, 2002 WL 181364, at *2 (D.
Kan. Jan. 31, 2002)). The district court has broad discretion
in determining relevance for discovery purposes. Watson
v. Lowcountry Red Cross, 974 F.2d 482, 489 (4th Cir.
support of his motion, Eshelman argues that Auerbach and
Ohanesian have communicated with numerous people about
Eshelman verbally and by email. [DE-150] at 1. According to
Eshelman, Puma claimed that Auerbach and Ohanesian were
unable to recall whether Eshelman was discussed during
meetings for which the calendar entries do not expressly
mention Eshelman. Id. at 3. Eshelman argues that
this confirms there are "almost certainly calendar
entries with vague titles that reflect meetings during which
Dr. Eshelman was discussed, but which Puma has refused to
produce." Id. Eshelman contends further that
"witnesses typically have great difficulty remembering
the details of conversations . .. that occurred several years
ago" if their memories are not refreshed with
contemporaneous emails or calendars. Id. Eshelman
reasons that he should therefore be permitted to "j og
their memories" by putting the entire calendar before
Auerbach and Ohanesian and match "vaguely-titled
calendar entries with their emails about Eshelman."
Id. Finally, Eshelman asserts that "[b]ased on
Auerbach's and Ohanesian's hostile and vulgar written
comments about Eshelman, there is ample reason to believe
[they] had numerous conversations and meetings during which
they expressed their spite and hostility toward Dr. Eshelman,
" which Eshelman claims is relevant to demonstrate
Puma's actual malice. Id. (emphasis omitted).
relevant documents at issue are the calendar entries related
to the proxy context. Puma's response satisfies
Eshelman's discovery request for documents related to a
specific topic, where Eshelman did not request entire
calendars for a defined period. Based on Puma's
description that -j Auerbach and Ohanesian cannot
recall whether Eshelman was discussed outside of specific
calendar entries, Eshelman speculates that there are calendar
entries that would jog their memories of information
responsive to the discovery request. Indeed, based on the
circumstances described by the parties, there may be no
entries at all. However, Puma has indicated that it reviewed
the calendars in context and that there are no calendar
entries not produced that Puma ...