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Eshelman v. Puma Biotechnology Inc

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

April 6, 2018

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

          ORDER

          Robert B. JoKes, Jr. United States Magistrate Judge.

         Defendant Puma Biotechnology, Inc. ("Defendant") moves the court to compel Plaintiff Fredric N. Eshelman ("Plaintiff) to produce complete interrogatory responses and document production. [DE-167]. Plaintiff opposes the motion. [DE-208]. A hearing was conducted on January 24, 2018, after which the parties submitted supplemental briefing. [DE-265, -272]. For the reasons stated below, Defendant's motion is allowed in part and denied in part.

         I. BACKGROUND

         Plaintiff has asserted claims of libeller se and libel per quod against Defendant related to statements Defendant made in a presentation to investors. 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 August 21, 2017, Defendant served Plaintiff with its Third Request for Production of Documents ("Third RFP"), the following of which are at issue here:

45. All documents relating to the amount of capital available to Plaintiff for investment in business opportunities from June 2015 to the present.
46. All documents relating to the value, or change in value, of Plaintiffs portfolio companies from June 2014 to the present.
47. All documents relating to any additional financing sought, or funding received, for Plaintiffs portfolio companies from June 2014 to the present.
48. To the extent they are not encompassed by RFP Nos. 45-47, all documents relating to Plaintiffs financial status from June 2015 to the present, including but not limited to, tax returns, financial statements, assets under management, and valuations of portfolio companies.
50. All documents supporting claims that Plaintiff s reputation was harmed, his relationships have been undermined, and confidence in his integrity and fitness has been undermined by Defendant's statements, as alleged in fflf 44, 60, 61, 62, 77, 78, and 79 of his Complaint.

         Def.'s Mot. [DE-167]; Def s Mot. Ex. 4 [DE-167-4] at 1-4. On August 21, 2017, Defendant served Plaintiff with its Third Set of Interrogatories ("Third Interrogatories"), the following of which are at issue here:

11. Identify Plaintiffs current assets under management.
12. Identify the amount of capital available to Plaintiff for investment in business opportunities on a quarterly basis from June 2015 to the present.
13. Identify the value, and change in value, of Plaintiff s portfolio companies on a quarterly basis from June 2015 to the present.
14. Identify any additional financing sought, and funding received, for Plaintiffs portfolio companies from June 2014 to the present.
18. Identify every fact that supports Plaintiffs claims that his reputation was harmed, his relationships have been undermined, and confidence in his integrity and fitness has been undermined by Defendant's statements, as alleged in fflf 44, 60, 61, 62, 77, 78, and 79 of his Complaint, including but not limited to:
(a) Each person or organization in whose estimation or with whom Plaintiffs reputation, relationships, integrity, and fitness have been so harmed or undermined;
(b) The factual basis for Plaintiffs claims with respect to each persons or organizations;
(c) The time and place in which such events occurred; and
(d) Any communications or interactions through which Plaintiff learned of such events.

         Def's Mot. [DE-167]; Def's Mot. Ex. 1 [DE-167-1] at 2-3. On September 20, 2017, Plaintiff responded to both the Third RFP and Third Interrogatories, objecting to the above-listed items on the general grounds of vagueness, confusion, ambiguity, relevancy, burden, disproportionality, and equal accessibility through third-party discovery. Def.'s Mot. Ex. 3 & 4 [DE-167-3, -4].

         The parties conferred for nearly a month, both in person and by email, regarding the Third RFP and the Third Interrogatories. Def.'s Mem. [DE-168] at 4. Based on Defendant's representations, the primary issue that prevented the parties from reaching a consensus was Plaintiffs contention that he had "narrowed his damages claim" to only seek general damages, and therefore financial information that addressed special damages was no longer relevant. Id. Defendant contended that, because the complaint avers special damages, and has not been amended to exclude special damages, Defendant is entitled to discovery of financial information. Id. In his opposition, Plaintiff argues that (1) Defendant's requests for financial documents are not relevant because Plaintiff is now only pursuing general damages, as opposed to special ...


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