A multidistrict litigation (MDL) court in the District of Columbia has granted the motion of the Procter & Gamble (P&G) defendants to compel a third party to produce documents relating to a study commissioned by the plaintiffs in litigation alleging “that excessive use of the denture cream product, Fixodent, blocks copper absorption and ultimately leads to neurological injury.” In re Denture Cream Prods. Liab. Litig., MDL No. 13-384 (U.S. Dist. Ct., D.D.C., order entered July 3, 2013). Conducted by Salim Shah and his companies, the “Sarfez Entities,” the study was designed “to determine how much copper, if any, is blocked during exposure to Fixodent.” The plaintiffs intended to use the study to prove causation.
While the Sarfez Entities apparently produced some 1,500 pages of documents in response to P&G’s discovery request, many emails were evidently missing attachments or were produced in a manner that did not allow them to be matched with their attachments, and parts and versions of documents were withheld without explanation. P&G sought the missing documents and also requested an order requiring the Sarfez Entities to submit their computers for forensic imaging, finding them in contempt and imposing monetary sanctions.
The court determined that the requested discovery was relevant, and, in the absence of any contrary evidence, that its production would not unduly burden the third party. Accordingly, the court granted the motion to compel in part, but refused to order forensic imaging, finding that this would increase the costs associated with production, or sanctions, because it was inappropriate at this stage to find the Sarfez Entities in contempt. If they fail to produce the requested documents, the court invited P&G to renew its requests for forensic imaging and a finding of contempt and monetary sanctions.
Among other matters, the Sarfez Entities resisted the motion by arguing that the relevance of the documents should be raised before the transferring court in Florida as part of a motion in limine and suggesting that the defendants must first depose the custodian of records before filing a motion to compel. The court noted that it need not determine whether the discovery sought will be admissible at trial; “[r]ather, the issue is whether the discovery sought is potentially relevant,” and because the plaintiffs might rely on the study to make a showing of causation, the related materials were relevant and discoverable. The court also opined as to the suggested deposition, “the Sarfez Entities provide no case law to support the notion that the defendants must conduct a deposition in advance of seeking documents, and the Court can find none. … There is no requirement that any particular type of discovery be sought before another.”