Bayer seeks protection from global discovery requests in Yaz MDL

Steve Korris Jan. 13, 2011, 8:47am


EAST ST. LOUIS – U.S. District Judge David Herndon has set a Jan. 20 hearing on his authority over documents of drug company Bayer from more than 100 nations.

Bayer seeks his protection from global production requests in national litigation over oral contraceptives Yasmin, Yaz and Ocella.

Plaintiffs seek documents on regulations, warnings, safety, labels, sales and marketing.

Bayer moved for a protective order in December, claiming plaintiffs sought to apply pressure rather than find evidence.

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

Herndon presides over Yaz, Yasmin and Ocella cases by appointment of the U.S. Judicial Panel on Multi District Litigation.

Plaintiffs allege kidney injuries and disorders of the blood stream.

As of Dec. 3, according to Weber, Bayer produced about 40 million pages of documents and agreed to produce 20 to 30 million more.

She wrote that Bayer's production, on paper, would weigh about 200 tons.

"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 at 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 aren't parties to the 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 plaintiffs should bear the cost of any discovery Herndon might grant.

Lead plaintiff lawyer Michael Denton of St. Louis answered that Bayer didn't show any special burden in producing the information.

He wrote that plaintiffs would limit their requests to documents available in English.

He wrote that Bayer keeps a global regulatory file in a central data base.

"All discovery is a burden to some extent," Denton wrote.

He wrote the burden is outweighed by the likely benefit of the information.

Herndon's docket carries more than 6,000 suits against Bayer.

He plans his first bellwether trial this fall.

Bellwether trials simplify mass litigation by setting a range of possible settlements.

Herndon has already exercised foreign jurisdiction, ordering Bayer to fly three Germans to America for depositions under conditions their law wouldn't allow.

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