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 ("Plaintiff) moves the court to
compel Defendant Puma Biotechnology, Inc.
("Defendant") to produce complete, unredacted
versions of all documents responsive to Requests for
Production Nos. 10, 19-25, for leave to reopen the
depositions of Alan Auerbach ("Auerbach") and Frank
Zavrl ("Zavrl"), and for attorneys' fees and
costs associated with bringing this motion and reopening the
depositions. [DE-160]. Defendant opposes the motion.
[DE-194]. For the reasons stated below, Plaintiffs motion is
February 2, 2016, Plaintiff filed a complaint against
Defendant and/ Auerbach, Defendant's
chief executive officer and Board Chairman, asserting claims
of libel per se and libeller quod related
to statements contained in an allegedly defamatory investor
presentation.See [DE-1, -5]. Specifically,
Plaintiff alleges that in the course of a proxy contest,
Defendant posted a link on its investor-relations website to
download an "Investor Presentation" that allegedly
contained defamatory statements about Plaintiff. Compl.
[DE-5] ¶¶ 46-82.
3, 2016, Plaintiff served upon Defendant his First Request
for Production of Documents ("RFP"), in which
Plaintiff sought "[a]ll documents relating to the Proxy
Contest" (RFP No. 10). PL's Mot., Ex. A [DE-160-1].
Additionally, with respect to meetings, calls, or conferences
during which Plaintiff or the Proxy Contest were mentioned,
referenced, or discussed, Plaintiff sought the following:
"all draft and final agendas" (RFP No. 19);
"all draft and final minutes" (RFP No. 20);
"all documents containing edits to, comments on, notes
regarding, or advice regarding minutes" (RFP No. 21);
"all draft and final transcripts" (RFP No. 22);
"all recordings" (RFP No. 23); "all documents,
materials, and presentations utilized, distributed, or
presented" (RFP No. 24); and "all call logs and
meeting invitations" (RFP No. 25). Id.
Defendant initially objected to RFP Nos. 19-25 "to the
extent [they] purport to call for Puma to determine whether
any of the stated subjects were mentioned, referenced, or
discussed during a meeting, call, or conference, without
regard to whether the documents themselves refer to those
subjects." PL's Mot., Ex. A [DE-160-1]. Defendant
then represented by email that it would produce responsive
documents, and that, "to the extent [it] did not produce
[a document], it is because no such documents were
located." Id., Ex. C [DE-160-3]. Defendant did
not produce the meeting materials requested in RFP Nos. 19-25
before the close of discovery. Id. at 3 [DE-160].
However after discovery had closed and depositions had
concluded, Defendant produced redacted versions of board
meeting minutes and isolated slides from presentations to
Defendant's board that contain Dr. Eshelman's name.
Id. Plaintiff subsequently requested in writing the
complete, unredacted versions of the minutes and
presentations. Id. at 4. Defendant offered to meet
with Plaintiffs counsel "in person to show [them] the
unredacted materials so that [they could] see that [Defendant
had] not redacted any information that would be germane in
any way to this case." PL's Mot., Ex. E [DE-160-5]
at 2. Plaintiff rejected Defendant's offer and resorted
instead to filing a motion to compel.
argues that it is entitled to complete and unredacted
versions of the meeting materials for the following five
reasons: (1) the materials contain important evidence about
the circumstances under which Defendant's board developed
its hostility toward Plaintiff and drafted and approved the
defamatory statements at issue; (2) Defendant did not raise
any objections that would entitle it to withhold portions of
the responsive Board meeting materials;, (3) Defendant's
counsel repeatedly represented that the requested materials
had already been produced; (4) Defendant has not asserted any
privilege objections, and "relevance" redactions
are improper; and (5) any concerns with respect to
confidentiality can be addressed by designating those
materials "confidential" pursuant to the protective
order already entered in this case. PL's Mem. [DE-161] at
4-6. Defendant contends that the redacted portions of the
documents contain "highly confidential financial
information" that are not relevant. Def.'s Opp'n
[DE-194] at 6.
also requests leave to reopen the depositions of Auerbach and
Zavrl in light of the newly-produced documents. PL's Mem.
[DE-161] at 6. Specifically, Plaintiff argues that, by
withholding the meeting materials until after the close of
discovery, Plaintiff was deprived of the opportunity to: (1)
jog witnesses' memories about topics of conversation at
particular meetings during which Plaintiff was discussed; (2)
lock in their testimony regarding their best recollection of
those meetings; (3) establish the timeline evidenced by the
materials; and (4) authenticate the materials. Id.
at 7. Defendant contends that Plaintiff has failed to show
cause for reopening the depositions. Def.'s Opp'n
[DE-194] at 2.
Plaintiff requests that Defendant bear the attorneys'
fees and costs associated with bringing this motion and
reopening the depositions. PL's Mem. [DE-161] at 8.
Plaintiff posits three reasons for why he is entitled to
attorneys' fees and costs: (1) Defendant has failed to
proffer an explanation for the late production of
electronically-stored and searchable documents; (2) Defendant
repeatedly and falsely represented in writing that it would
produce or had produced the materials; and (3) the deponents
live in California and Massachusetts, requiring great expense
to reopen the depositions. Id. In a footnote in its
opposition, Defendant contends that this request should be
summarily denied because the depositions should not be
reopened. Def.'s Opp'n [DE-194] at 6 n.4.
Compel Production of Meeting Materials
26(b)(1) 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;O6CVOO889, 2007 WL 1726560,
at *3 (M.D. N.C. June 13, 2007); 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,
of the Federal Rules of Civil Procedure provides that
"[a] party seeking discovery may move for an order
compelling an answer, designation, production, or
inspection" if a party fails to produce or make
available for inspection requested documents under Rule 34.
Fed.R.Civ.P. 37(a)(3)(B)(iv). For purposes of a motion to
compel, "an evasive or incomplete disclosure, answer, or
response must be treated as a failure to disclose, answer, or
respond." Fed.R.Civ.P. 37(a)(4). However, the Federal
Rules also provide that
the court must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it
determines that: (i) the discovery sought is unreasonably
cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less
expensive; (ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action; or (iii) the proposed discovery is outside the scope
permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C). "Additionally, the court
has 'substantial discretion' to grant or deny motions
to compel discovery." English v. Johns, No.
5:11-CT-3206-D, 2014 WL 555661, at *4 (E.D. N.C. Feb. 11,
2014) (quoting Lone Star Steakhouse & Saloon, Inc. v.
Alpha o/Va., Inc.,43 F.3d 922, 929 (4th Cir. 1995)).
Finally, the party seeking the court's protection from
responding to discovery "must make a particularized
showing of why discovery should be denied, and conclusory or
generalized statements fail ...