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Message: Medical Device Reporting (MDR) regulations.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
IN RE: e.DIGITAL CASES ))))))))))))))))))
Civil Nos.
12-2696-DMS(WVG)
12-2698-DMS(WVG)
12-2701-DMS(WVG)
12-2825-DMS(WVG)
12-2877-DMS(WVG)
12-2891-DMS(WVG)
12-2899-DMS(WVG)
12-2997-DMS(WVG)
13-0023-DMS(WVG)
13-0112-DMS(WVG)
13-0356-DMS(WVG)
13-0780-DMS(WVG)
13-0781-DMS(WVG)
13-0782-DMS(WVG)
13-0783-DMS(WVG)
13-0785-DMS(WVG)
SECOND ORDER
REGARDING DISCOVERY
Ruling
The Court finds that, at this time, Plaintiff’s
argument that it would be burdensome and oppressive to log
all of the pre-filing investigation documents is premature
and unsupported. Plaintiff fails to inform the Court of
the volume of the pre-filing investigation documents, or
whether it has reviewed and examined the pre-filing
investigation documents. Without more, the Court can not
find that logging the pre-filing investigation documents
is burdensome or oppressive. Also, Plaintiff has not
12cv2696
informed the Court of the number of undated pre-filing
investigation documents, which it argues will require a
metadata review for determination of the date of the
document. Nor does Plaintiff describe the burden such a
metadata review would impose.
Further, Fed. R. Civ. P. 26(b)(3) exempts from
production documents “prepared in anticipation of litigation.”
Since Plaintiff does not appear to have reviewed
and examined all the pre-investigation documents, it can
not state with any certainty which pre-filing investigation
documents were “prepared in anticipation.”
Moreover, if the pre-filing investigation documents
are voluminous, each pre-filing investigation document
does not necessarily need to be separately logged. In In
re Imperial Corp. of America, 174 F.R.D. 475, 477-478
(S.D. Cal. 1997), the court found that in voluminous
productions, there is no requirement that every withheld
document be individually logged on a privilege log.
Instead, the producing party may produce a privilege log
that identifies categories of documents.
Therefore, if Plaintiff determines that the prefiling
investigation documents are voluminous, it may
produce a privilege log that contains the following
information:
(a) each document shall be assigned a number;
(b) an aggregate listing of the numbers of the
withheld documents;
identification of the time periods encompassed
by the withheld documents;
(d) An affidavit containing the representations that
the specific range of numbered withheld documents were:
(i) either prepared in anticipation of litigation,
or
(ii) contain information reflecting communications
between counsel or counsel’s representatives and
Plaintiff or Plaintiff’s representatives, for the purpose
of facilitating the rendition of legal services to Plaintiff,
and
(e) were intended to be confidential communications.
Imperial Corp. of America, 174 F.R.D. at 479.
If pre-filing investigation documents are not
voluminous, Plaintiff shall log each pre-filing investigation
document as noted in the Order. (Order at 5-6).
If Plaintiff is in doubt as to the number of documents
necessary to be characterized as “voluminous,”
Plaintiff shall meet and confer with Defendants to resolve
the dispute. Otherwise, Plaintiff should err on the side
of logging every pre-filing investigation document.
Therefore, with respect to any litigation involving
the patents-in-suit, a privilege log shall be produced
with respect to all documents withheld on the basis of a
claim of privilege or work product, except the following:
written communications between a party and its counsel
related to and after commencement of the litigation and
the work product material related to and generated after
the commencement of the litigation.

IT IS SO ORDERED.
DATED: June 25, 2013
Hon. William V. Gallo
U.S. Magistrate Judge
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