In re 3M Combat Arms Earplug Prods. Liab. Litig.

The court held a telephonic hearing on three discovery issues pertaining to scheduled Bellwether cases set for trial in the expansive multidistrict litigation. The first issue involved plaintiffs’ request for discovery from four additional custodians at the Defendants’ Aearo Operations Division. The plaintiffs asserted that the requested custodians were involved in manufacturing and quality control activities associated with allegedly defective earplugs that are the subject of the litigation. Second, the plaintiffs sought the production of information from two Aearo Technologies custodians in Mexico where some of the allegedly defect earplugs were manufactured. Finally, the defendant’s sought and expansion of the defendants’ privilege logs especially as pertains to doctor-patient and psychotherapist-patient privileges.

The court closely examined the requests and determined that some of the requested additional custodians had been shown to contain “unique relevant information not already obtained,” and ordered that four of the six custodians’ electronically stored information should be examined. The court, in particular, recognized the cost and expense associated with the additional custodian located in Mexico but determined that the Plaintiffs had made a sufficient showing that the production of the custodian’s files will yield unique and relevant information not otherwise obtained. With respect to the privilege log, the court noted that the individual plaintiff’s mental condition was not at issue, and thus presumably mental condition information was not relevant. However, in an abundance of caution the court required privilege logs to include: “(1) the date; (2) the identifying Bates number(s); (3) the author or creator; (4) whether the document or information was copied or distributed to a third party (if that information is readily available on the face of the document); (5) a brief description of the document or redaction (such as, “progress notes”); and (6) the reason for withholding or redaction.”

Order Regarding Discovery Disputes

In Re #M Combat Arms Order Governing BellWether Plaintiffs’ Obligation to Review and Produce Electronically Stored Information