In In re: ZANTAC (RANITIDINE) PRODUCTS LIABILITY LITIGATION, No. 20-MD-2924 (S.D. FL Nov. 15, 2021) Defendants served the 10 named Class Plaintiffs with Requests for Production and Interrogatories related to the Second Amended Consolidated Economic Loss Class Action Complaint and the Amended Consolidated Medical Monitoring Class Action Complaint.
At issue was whether Class Plaintiffs were required to produce more rigorous searches of some of their social media communications and whether the Class Plaintiffs have satisfied the requirements of Federal Rule 26(g)(1).
Class Plaintiffs agreed to collect and produce evidence from some electronic sources and certain social media accounts, but not from all the sources identified by Defendants. In response, Defendants move to compel for more rigorous searches.
Defendants’ Discovery Requests generally sought evidence from “emails, social media posts, blog posts or other written communications” regarding over-the-counter brand name-Zantac, prescription brand-name Zantac, or other ranitidine-containing products. Class Plaintiffs objected on relevance, proportionality, and privilege. After the parties conferred and narrowed the issues in dispute, the questions before the Court were (1) whether the evidence of risky behaviors was relevant to Plaintiff’s claims, (2) were the discovery requests proportional to the needs of the case, and (3) did the evidence collection protocol used by the Class Plaintiffs satisfy their obligation under Federal Rule of Civil Procedure 26(g)(1).
First, the Court found that evidence of Class Plaintiffs’ risky behavior was relevant to the claims and defenses in the MDL, including whether the Class Plaintiff could meet the typicality and adequacy requirements to be class representatives. The Court found, at a minimum, the evidence was relevant to establishing a baseline cancer risk that was allegedly significantly increased by use of ranitidine products.
Next, in evaluating proportionality, the Court looked to (1) the importance of the issues at stake in the action, (2) the amount in controversy, (3) the parties’ relative access to the relevant information, (4) the parties’ resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden or expense of the proposed discovery outweighs the likely benefit. Fed. R. Civ. P. 26(b)(1).
Class Plaintiffs did not object to searching email accounts, text messages, document repositories (e.g., computers, tablets, external storage media, cloud-based storage), Facebook profiles, Twitter profiles, and WhatsApp communications. They did, however, object on proportionality grounds to searching Instagram, Snapchat, TikTok, Facebook Messenger, Twitter Direct Messages, and Facebook Activity. As to the latter objected to social media categories, counsel for Class Plaintiffs represented that they queried their clients and learned that those platforms were not used for communications that would be relevant, and thus the burden of searching such sources outweighed any likely benefit.
Regarding proportionality factors 2, 3, and 4, those were quickly addressed by the Court. The amount in controversy was substantial, Plaintiffs have more access to information about their own backgrounds and behaviors, and both sides have sample resources. For the Court, those factors collectively weighed less than the remaining factors.
With respect to importance of the issues at stake, the Court explained that “the requested discovery goes primarily to the issue of class certification, and more specifically whether the currently-named Class Plaintiffs satisfy the typicality and adequacy requirements of Federal Rule of Civil Procedure 23(a)(3) and (a)(4).” Yet, while important to the litigation, such issues did not warrant exhaustive discovery given that the legal standards for typicality and adequacy were “relatively permissive” and there was a large number of available class members such that even if the current Class Representatives fail to meet 23(a), an adequate substitute could be found. Moreover, Class Plaintiffs agreed to conduct searches that are likely to produce evidence of probative of these issues. Accordingly, the Court found that the proportionality factor did not weigh in favor of the broader discovery advocated by Defendants.
The Court also noted that Defendants have numerous alternative sources of equally or more probative evidence, such as sources the parties agreed to search, including medical records, court filings, and financial records. “Put simply, it is not worth the candle to search these additional social media platforms for pictures or posts of individualized incidents of someone smoking or eating bacon or drinking to excess. If that person is a long-term smoker, eats badly, or drinks excessively, there are other ways to prove it that are readily available to Defendants.”
Finally, since the requested evidence was not an integral part in proving an important issue in the litigation, the Court found that the burden of searching the Class Plaintiffs’ social media accounts (Instagram, Snapchat, TikTok, Facebook Messenger, Twitter Direct Messages, and Facebook Activity) outweighed any likely benefit and was not proportional to the needs of the case.
With regards to the search protocol, Plaintiffs proposed that they would not search 48 email accounts that the Class Plaintiffs have identified as being used solely for receiving spam, doing work, or being inaccessible; not search 75 depositories that the Class Plaintiffs have identified as only being used for work and/or not being used to save documents; and would conduct “linear searches” of the Facebook and Twitter profiles. The Court found such parameters proposed by Class Plaintiffs complied with Rule 26(g)(1)’s requirement that a party conduct a “reasonable inquiry” to locate materials responsive to a discovery request. As noted by the Court, the rule does not require a perfect search of all locations where evidence may be found, it only requires a “reasonable” inquiry, which Plaintiffs met.
Accordingly, Defendant’s Motion to Compel was denied without prejudice to seeking additional discovery for good cause shown.