Opinion
Master File 00 Civ. 2843 (LAK).
September 25, 2002
PRETRIAL ORDER NO. 99 (PEC Motion for Sanctions)
The Plaintiffs' Executive Committee moves for sanctions, alleging that defendants have dragged their heels and failed to produce critical documents in violation of court orders. The papers before the Court demonstrate their position to be exaggerated. In any case, defendants have produced a staggering volume of documents (over 9.5 million pages plus 45 databases). There simply is nothing to warrant a finding of bad faith or any other failure sufficient to justify the imposition of sanctions.
The PEC's contention that defendants should be sanctioned because they belatedly produced "for the first time during this litigation" Clinical Study 991-111 is worthy of particular mention. The PEC's papers plainly sought to create the impression, in part by the quoted statement, that defendants had sought to hide an allegedly vital piece of evidence. That impression would be quite inaccurate, and the PEC either knew or should have known that such was the case. What the PEC knew or should have known, but did not disclose to the Court, was that the defendants had produced to the PEC eight boxes of documents pertaining to the allegedly suppressed study, including drafts of the report, copies of the protocol and patient data as well as the custodial files of the scientists and others who worked on the study, files that included additional drafts, supporting documentation, and related e-mails. That omission from the PEC's papers was misleading and inappropriate. There is a vast difference between hiding an allegedly pivotal study, which is what the PEC suggested that defendants had done, and producing substantially everything relating to the study plus drafts of the report while somehow failing to ensure the production of the final copy, which is what appears to have occurred. The former smacks of fraud, the latter of a mistake. Moreover, the fact that the final report was not in the previous production should have been perfectly obvious to the PEC from the presence of the data, the protocol and the drafts that were produced. Had it been a matter of significant interest, the PEC doubtless would have noted the lack of a final version of the report and simply asked defendants for it, which they did not do. In fact, the non-production of the final report came to light because a plaintiff's attorney in a Maryland state court case — not the PEC — noted the lack of a final report and asked for it, whereupon defendants' counsel determined that the final report had not been produced previously either in the Maryland case or here, located it, and turned it over. In short, the PEC's claim with respect to Clinical Study 991-111 at best is a mole hill, not a mountain.
Pl. Mem. 6; Rafferty Aff. ¶¶ 13-14.
Def. Mem. 4-5.
Motion [docket item 660] denied.
SO ORDERED.