Bayer says discovery production in Yaz litigation could weigh 200 tons

Steve Korris Dec. 7, 2010, 3:00pm



EAST ST. LOUIS – Now that U.S. District Judge David Herndon presides over suits against Bayer from all around the nation, plaintiffs want him to exercise jurisdiction over Bayer all around the world.

In November, lead plaintiff lawyer Michael Denton of St. Louis demanded production of documents on oral contraceptives Yaz and Yasmin from more than 100 nations.

Bayer lawyer Susan Weber of Chicago moved for a protective order on Dec. 3, claiming Denton sought the documents for leverage rather than evidence.

"The discovery demands in this litigation no longer bear any relationship to the truth seeking function of litigation," she wrote.

She wrote that Denton stated in email to Bayer counsel that he designed the demands to keep pressure on Bayer.

Weber also wrote that Bayer contacted Denton to find out if he intended to send the email.

"Bayer's counsel was informed that the receipt was definitely intended," Weber wrote.

Her protest echoed Judge Richard Posner of the U.S. Seventh Circuit appeals court in Chicago, who deplored expensive discovery
in a recent opinion.

"One purpose of discovery – improper and rarely acknowledged but pervasive – is: It makes one's opponents spend money," Posner wrote.

In the cases before Herndon, women claim Yaz and Yasmin injured kidneys and caused disorders in the blood stream.

Herndon, who presides over Yaz and Yasmin by appointment of the U.S. Judicial Panel on Multi District Litigation, has already set a drug discovery record.

"Bayer already has produced approximately 40 million pages of documents from more than 130 sources," Weber wrote.

She estimated Bayer has agreed to produce 20 to 30 million pages more.

"Bayer's production, if made in paper format, would be more than 7,000 pages long if the pages were laid end to end, and would weigh approximately 200 tons," she wrote.

Seroquel litigation produced about 30 million pages. Vioxx litigation, with about 10 times as many claims as Yaz and Yasmin, produced about 28 million pages, Weber wrote.

Trasylol litigation produced about 23 million pages and Baycol about 15 million.

Weber wrote that with Yaz and Yasmin, Bayer must produce four million pages more for bellwether trials that could shape the mass for settlement.

"It would take months to address plaintiffs' demands, and months or years more for plaintiffs to translate and examine the documents they demand (assuming plaintiffs actually intend to look these documents)," she wrote.

"Most of these documents are in foreign languages, and many are not readily accessible electronically," she wrote.

She wrote that others are in the hands of entities that are not parties to this action.

"The burden of collecting and producing the documents plaintiffs seek would be great, and in some countries would require clearing legal hurdles," she wrote.

She wrote that Bayer would have to screen each page in its own language to ensure privacy and protect other privileges and protections.

"Indeed, production of some of the materials sought by plaintiffs may violate criminal laws in some countries," she wrote.

She wrote that to the extent Herndon might grant foreign discovery, plaintiffs should bear the cost.

"Presently, there is little to restrain plaintiffs from seeking mountains of documents," she wrote.

The docket holds about 6,000 cases, with dozens pouring in daily.

Herndon plans his first bellwether trial this fall.

He has already asserted foreign jurisdiction, ordering Bayer to haul three Germans to America for depositions under conditions their law wouldn't allow.

More News