eDiscovery Daily Blog

• April 3, 2017

In Healthwerks, Inc. et. al. v. Stryker Spine, et. al., No. 14-93 (E.D. Wisc., Mar. 6, 2017), Wisconsin District Judge Pamela Pepper denied a motion to compel production of text messages issued by the plaintiffs and third party defendants against the defendant Stryker, agreeing with Stryker that filing the motion almost six months after discovery had closed was untimely.

Case Background

In April 2016, the plaintiffs and third-party defendants filed a motion, indicating that earlier in April 2016, the plaintiffs/third-party defendants had received from Stryker twenty-one text messages, all from a records custodian who had not been working for Stryker until after the filing of the lawsuit.  Several days later, Stryker informed the plaintiffs/third-party defendants that it had not searched any of its other employees’ phones for relevant text messages. The movants indicated that, while Stryker never had objected to their discovery demands that Stryker produce such text messages, Stryker now was arguing that it would not produce the texts absent a court order.

Although Stryker had produced tens of thousands of pages over the course of discovery, the movants argued that the production format did not permit them to search for text messages. The movants also indicated that when asked for more information, Stryker ignored the requests and simply demanded responses to its own discovery requests.  Finally, in April 2015, with trial looming, the movants “isolated the Stryker text issue” and Stryker first said it would look into the issue, but, according to the movants, then refused to review the texts of two key custodians to determine whether they had any responsive texts. The movants claimed that Stryker’s plan was to wait throughout the discovery period to produce the texts, then claim that the movants somehow had waived their right to expect them.

Stryker filed its response in May 2016, objecting that discovery had closed on November 16, 2015, and the movants hadn’t filed their motion to compel until five months later, and one month prior to the then-upcoming trial.  Stryker argued that the movants did not even seek to meet and confer about the texts until April 2016, months after discovery closed.

Judge’s Ruling

Judge Pepper began her analysis by stating: “So. On December 31, 2014, the movants served on Stryker discovery demands requesting any kind of document containing any kind of information about a whole bunch of stuff. Lawyers experienced in these sorts of demands – as Stryker’s counsel are – certainly would have figured out that one electronic form of communication the movants might have been seeking would have been texts.”  Judge Pepper also noted that, “[I]n response to these broad demands, Stryker – over the course of the next ten months – served tens of thousands of pages of discovery on the movants.”

As a result, Judge Pepper said the “The court will deny the motion to compel. As Stryker notes, the movants filed this motion almost six months after discovery had closed.”  Judge Pepper also noted that the “discovery period was quite extensive”, with the movants filing their discovery demands December 31, 2014 and the scheduling order having set the discovery deadline for November 16, 2015 (not to mention nearly a year before during which a discovery deadline was not set by the previous judge assigned to the case).  While she understood the movants’ explanation for why they did not file the motion until April 2016, Judge Pepper stated that “their failure to realize before the close of discovery that they could not search the discovery specifically for texts is not a basis for granting a late-filed motion to compel.”

So, what do you think?  Should the motion have been denied or should the defendant Stryker have been held accountable for lack of cooperation on text messages before the deadline?  Please share any comments you might have or if you’d like to know more about a particular topic.

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