United States District Court, D. New Jersey
BAYER HEALTHCARE LLC
H. GOODMAN, UNITED STATES MAGISTRATE JUDGE
email dated March 21, 2017, counsel advised the Court of
certain discovery disputes. In light of the tight schedule
for upcoming expert discovery, dispositive motions, and
trial, the Court convened a telephonic conference on March
22, 2017. Plaintiff Profoot asked for leave to brief the
issues raised, and the Court instructed the parties to file a
joint submission by noon on March 24, 2017. The Court further
instructed them that any requests could not impact the
deadline for filing dispositive motions, given that they had
previously been instructed that the deadline would not be
extended. See March 17, 2017 Letter Order at 3 [Docket Entry
No. 326]. Finally, the Court advised counsel for Profoot, as
the moving party, that it would have to show that any
discovery served right at the close of fact discovery could
not have been served earlier in the case, given the
undersigned's view that discovery must be completed,
rather than simply served before the close of discovery. See
also February 24, 2017 Scheduling Order (“fact
discovery is to remain open through March 15, 2017. No
discovery is to be issued or engaged in beyond that date,
except upon application and for good cause shown.”
[Docket Entry No. 321].
Court has now reviewed the joint submission of the parties,
which raises two issues. The first is a scheduling issue, and
the second is a substantive discovery issue. The undersigned
will address them in reverse order.
regard to the substantive discovery issue, Profoot served new
document requests and two third party subpoenas on the eve of
the close of fact discovery. As noted above, the Court
cautioned Profoot that they must show the Court the discovery
sought could not have been requested earlier in the
litigation, and that there was no choice but to seek it at
this very late date. Profoot has not met that burden.
Instead, it has said, in a generalized fashion, that certain
things only recently came to its attention.
Solutions is one of the subpoena recipients. Profoot does not
say when the need for the information from Advantage
Solutions became apparent but only says that at a Rule
30(b)(6) deposition, the witness was vague and unprepared as
to what Profoot refers to as “category
management.” On the other hand, Bayer points out that
it has produced more than a thousand documents that reference
its relationship with this third party. Profoot's
vagueness, combined with Bayer's specificity, leads the
Court to conclude that Profoot could have inquired further as
to Advantage Solutions' role, if any, with regard to
category management of Bayer's products.
fares no better with the third party subpoena served on March
15 on Walmart. It states that on March 15, Profoot learned
that Walmart “may maintain a department or have
processes for reviewing its category management relationship
with retailers, including Dr. Scholl's.” Joint
Letter at 6. There is no explanation whatsoever as to what
caused this sudden knowledge and why it came on the last day
of discovery. By contrast, Bayer notes that Walmart was
actually among the agreed-upon search terms for Bayer's
collection of electronic discovery. Joint Letter at 7.
Indeed, Bayer says it produced numerous documents relating to
its relationship with Walmart. If this relationship was so
critical, it is inconceivable to the Court that Profoot could
not have pursued it in a timelier manner.
last discovery issue relates to a fifth set of document
requests Profoot served on Bayer on March 15. Without getting
into the specific requests, the Court again finds that
Profoot has not articulated why these requests could not have
been served sooner. To the extent, however, that Bayer
objects that these requests are duplicative, and Profoot
therefore requests that the responsive documents be
identified in Bayer's production by Bates number, the
Court finds that Profoot's request is not unreasonable.
Accordingly, Bayer should provide Bates numbers for
documents, or ranges of documents, responsive to requests
101-103 to the extent practicable. Bayer's objections to
the late-served discovery are otherwise sustained.
Court next turns to scheduling. As pointed out at length in
the undersigned's March 17, 2017 Letter Order, this case
is operating under an extremely tight schedule. Certain dates
cannot be moved, including the dates for the filing of
dispositive motions and for trial. The court instructed
counsel to confer as to any adjustments to the expert
schedule with that in mind. As has become par for the course
in this case, they were unable to reach any agreement.
undersigned finds that a modest adjustment of the expert
schedule is appropriate. The parties agreed to continue
certain depositions after the close of discovery, and the
Court is loath to interfere where there is such agreement.
Although they disagree as to whether that agreed-upon
discovery should impact experts, and Bayer even offers to
allow Profoot to serve a reply report if needed, the more
practical approach is to allow Profoot a small extension of
time for its affirmative reports. The expert schedule is
therefore adjusted as follows:
• Affirmative reports to be served by no later than
April 14, 2017;
• Rebuttal reports to be served by no later than May 5,
• Expert depositions to be completed by May ...