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Eshelman v. Puma Biotechnology, Inc.

United States District Court, E.D. North Carolina, Southern Division

January 8, 2018

FREDRIC N. ESHELMAN, Plaintiff,
v.
PUMA BIOTECHNOLOGY, INC., Defendant.

          ORDER

          ROBERT B. JONES, JR. UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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 allowed.

         I. BACKGROUND

         On 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.[1]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.

         On June 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.

         Plaintiff 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.

         Plaintiff 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.

         Lastly, 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.

         II. DISCUSSION

         A. Compel Production of Meeting Materials

         Rule 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, 351 (1978)).

         Rule 37 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 ...


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