Lin v. Solta Medical, Inc. ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HSIN LIN, Case No. 21-cv-05062-PJH 8 Plaintiff, 9 v. DISCOVERY ORDER 10 SOLTA MEDICAL, INC., Re: Dkt. No. 77 11 Defendant. 12 13 14 Before the court is a joint discovery letter brief summarizing certain discovery 15 disputes between the parties. Having read the parties’ submission and carefully 16 considered their arguments and the relevant legal authority, and good cause appearing, 17 the court hereby rules as follows. 18 BACKGROUND 19 A. Procedural History 20 This is a products liability action filed by California resident Hsin Lin against an 21 out-of-state corporation Solta Medical, Inc. (“Solta”). Dkt. 70 ¶¶ 1–2. The original 22 complaint included a since-dismissed co-defendant, Bausch Health Americas, Inc. 23 (“BHA”). Plaintiff alleges that she suffered injuries as a result of a skin treatment she 24 received in Taiwan that utilized a Thermage CPT device manufactured by defendant. Id. 25 ¶¶ 27–32. On January 23, 2019, plaintiff allegedly received her treatment and suffered 26 severe second-degree burns as a result. Id. 27 On December 20, 2021, plaintiff filed her first amended complaint (“FAC”). 1 (2) manufacturing defect, and (3) failure to warn. Id. at 8–15. Plaintiff also asserted 2 causes of action for (4) negligence, (5) breach of express warranty, and (6) breach of 3 implied warranty. Id. at 16–20. 4 On February 2, 2022, defendants moved to dismiss plaintiff’s FAC for lack of 5 personal jurisdiction. Dkt. 41. On June 21, 2022, the court denied the motion with 6 respect to Solta and granted it with respect to co-defendant BHA. Dkt. 56. On June 28, 7 2023, plaintiff filed a second amended complaint stating the same causes of action. 8 Dkt. 70 (“SAC”). 9 On November 27, 2023, the parties filed the instant discovery letter brief. Dkt. 77. 10 B. The Discovery Letter Brief 11 On November 2, 2022, plaintiff served Solta with her Second Set of Discovery 12 Requests, including both interrogatories and requests for production of documents. The 13 RFPs cover the nature and extent of Solta’s prior knowledge of the potential of the 14 Thermage CPT and similar predecessor models of the device to cause burn injuries. The 15 main area of dispute presented in the letter brief concerns the discoverability of records 16 related to previous versions of the device. Discovery is ongoing, and the parties continue 17 to produce materials and meet and confer. 18 The two disputed discovery requests presented in the letter brief are: 19 RFP 14: “all complaint files YOU initiated, investigated or maintained pursuant to 20 21 CFR 820.198(a) which mentioned, discussed, or referenced any THERMAGE 21 DEVICE.” 22 RFP 41: “all COMMUNICATIONS… discussing or referencing the potential of any 23 THERMAGE DEVICE to cause burns, blisters, rashes or scars.” 24 DISCUSSION 25 A. Legal Standard 26 Federal Rule of Civil Procedure 26(b)(1) provides a broad definition of relevance 27 for purposes of discovery: “Parties may obtain discovery regarding any nonprivileged 1 case.” “[D]iscovery is not limited to issues raised by the pleadings, for discovery itself is 2 designed to help define and clarify the issues.” Oppenheimer Fund, Inc. v. Sanders, 437 3 U.S. 340, 351 (1978). “Nor is discovery limited to the merits of a case, for a variety of 4 fact-oriented issues may arise during litigation that are not related to the merits.” Id. The 5 party resisting discovery “has the burden to show that discovery should not be allowed, 6 and has the burden of clarifying, explaining, and supporting its objections.” Oakes v. 7 Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998). 8 B. Analysis 9 The parties present three disputes in their joint letter: (1) whether plaintiff should 10 be permitted to circumvent the discovery letter process and instead file a motion to 11 compel in the first instance, to be heard before a magistrate judge or special discovery 12 master; (2) whether in response to RFP 14 Solta must produce materials about earlier 13 versions of the device and publicly-available information, and whether it can withhold 14 documents that contain private patient information; and (3) whether in response to 15 RFP 41 Solta must produce materials about earlier versions of the device. 16 1. The parties must comply with this court’s standing orders 17 Plaintiff first argues that the “areas of dispute are too numerous and complex to 18 sufficiently describe in this brief letter”, and she should therefore be permitted to 19 circumvent this court’s requirement that parties present discovery disputes initially 20 through a joint letter. Dkt. 77. This court’s Standing Order Regarding Discovery 21 Disputes, Protective Orders, and ESI Orders requires that parties presenting a discovery 22 dispute to the court must first do so in a joint letter that “include[s] a description of every 23 issue in dispute and, with respect to each such issue, a detailed summary of each party’s 24 final substantive position and its respective proposed resolution on each issue.” The 25 parties must comply with that standing order, and the letter brief is a prerequisite to filing 26 a discovery motion. Motions will be entertained only if needed to resolve discovery 27 issues, and the present dispute as described does not require a motion to compel to 1 2. RFP 14 2 In RFP 14, plaintiff seeks “all complaint files YOU initiated, investigated or 3 maintained pursuant to 21 CFR 820.198(a) which mentioned, discussed, or referenced 4 any THERMAGE DEVICE.” Plaintiff argues these records are relevant to what Solta 5 knew about the propensity of Thermage devices to cause burn injuries, and what steps, if 6 any, Solta took in response. Solta has refused to produce any complaint files other than 7 those specifically associated with plaintiff’s incident, despite plaintiff’s agreement that 8 defendant may produce the files subject to a protective order and may redact from the 9 files any names or other personal identifiable information of patients. 10 Defendant first argues that the request is overbroad because it imposes no 11 limitations, meaning it seeks any complaint file for any type of issue with any earlier 12 generation Thermage device in use since 2002. Plaintiff had at one time limited the 13 request to the Thermage CPT (the version of the device at issue in the case). Second, 14 defendant argues that some of the requested materials are publicly available, and third 15 that some materials contain irrelevant and private patient information. Fourth, defendant 16 argues it is producing materials responsive to this request in response to other requests. 17 First, the court agrees with defendant that the discovery requests should be limited 18 to materials concerning the model or generation of device at issue in the complaint—not 19 any device with the Thermage name on it. Second, publicly available information need 20 not be produced but should be identified as publicly available along with information 21 identifying the source where the information can be found. Third, with respect to the 22 protected patient information, defendant must produce the underlying materials but 23 should redact protected patient information. Fourth, defendant’s production of materials 24 in response to other requests does not obviate the need to respond to this request, 25 although neither is defendant required to produce materials in multiple copies. Where 26 duplicative information is requested, defendant should identify the location of previous 27 responses that contain the responsive materials. 1 RFP 41 requests “all COMMUNICATIONS… discussing or referencing the 2 potential of any THERMAGE DEVICE to cause burns, blisters, rashes or scars.” Plaintiff 3 argues that these internal communications are relevant to her claims that Solta knew 4 about the alleged defects with its Thermage devices but failed to take appropriate steps 5 to protect patient safety. The parties represent that they have been discussing a trial 6 search of relevant ESI limited to certain terms, individuals, and years, but that they are 7 unable to agree on appropriate search parameters. Specifically, the parties disagree 8 whether the search should be limited to the model or generation of device at issue in the 9 complaint, or whether it should encompass any device with the Thermage name on it. As 10 described above, the search should be limited to the model or generation of device at 11 issue in the complaint, and need not include other products sold by Solta. The parties 12 should continue to meet and confer regarding reasonable search terms given that 13 direction. 14 IT IS SO ORDERED. 15 Dated: December 4, 2023 16 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 17 United States District Judge 18 19 20 21 22 23 24 25 26 27