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Special Master Ruling on Request for Bayer Lotus Notes Litigation Archive

Last Tuesday, Judge Dennis M. Cavanaugh, a special master, issued a decision, United States ex rel. Simpson v. Bayer Corp., No. 05-3895 (JLL)(JAD), 2019 U.S. Dist. LEXIS 35126 (D.N.J. Mar. 4, 2019), denying in part and granting in part discovery requests by the parties under the proportionality standard of Fed. R. Civ. P. 26(b)(1).

The Plaintiff sought an order directing Bayer to search an archive prepared to preserve deleted ESI; remove redactions of computer file names; and produce other data on sales and employee compensation. In 2004 Bayer used Lotus Notes to archive emails, and directed its employees to delete their own copies of the emails. No email was produced from 2003 and 2004 for half of the custodians for which discovery was conducted. Bayer stated that it was unable to find the "Lotus Notes Litigation Archive", and stated that since it only learned of litigation regarding is medication Trasylol in 2010 it had no obligated to preserve the archive. Id. at *7. Judge Cavanaugh simply held that he could not compel Bayer to produce information which it can't locate.

He ruled that Bayer failed to demonstrate with specificity that it had conducted a reasonable search for the requested compensation data. Bayer had contented that it did not review compensation in the ordinary course of business and doing so would be extremely burdensome. Bayer did produce documents relating to compensation; ran a search with agreed upon search terms; and also ran targeted searches for compensation documents at the Plaintiff's request.

The Plaintiff was able to show references in produced documents indicating that Bayer maintained sales data, and noted that an agreement with the government required Bayer to keep sales data. The Special Master ordered Bayer to respond to certain of the Plaintiff's requests and noted that it should provide specific Bates numbers if it answered by reference to prior productions.

Bayer requested that the Plaintiff provide it with additional search terms and custodians in order to help it find data on a specific program after it had conducted a broad search using the name, Avelox, of that program. The Plaintiff did provide details on the kind of Avelox information it needed. "While Bayer has explained that it has conducted searches with the 'Avelox' search term and produced over 800,000 pages of documents, it is not Realtor's responsibility to inform Bayer how to retrieve the information it seeks. " Id. at 19-20.

Bayer produced documents it initially claimed were non-responsive even though they were included in families that contained responsive documents. It had initially produced only slip sheets with caption, 'Non-Responsive'. The Plaintiff complained that the name of the initially withheld attachments in email messages was replaced with, '_.png'. The Special Master accepted Bayer's contention that it had not redacted file names in the email attachment field.

Bayer requested that the Plaintiff produce documents regarding false claims. The Plaintiff objected on the basis of the fact that this is contention discovery which should be deferred until after the completion of fact discovery. While Judge Cavanaugh acknowledged that these were contention type requests, he exercised his discretion to order that they be responded to before the end of fact discovery. He noted that this matter has been pending for more than 13 years.

Bayer also contended that the Plaintiff failed to produce all non-privileged communications regarding the case and the underlying facts. The Special Master ordered the Plaintiff to produce additional documents or certify that its production was complete.

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