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Is Bifurcation Helpful or Harmful to Plaintiff eDiscovery?

Posted on March 3rd, 2014

In Physicians Healthsource, Inc. v. Janssen Pharmaceuticals, Inc. Civil Action No. 12-2132 (FLW)(D.N.J. February 4, 2014), Plaintiff alleged two unsolicited faxes sent by Defendant regarding the drug Levaquin violated the Telephone Consumer Protection Act (TCPA), which might warrant a class action lawsuit. The defense argued the faxes were informational (regarding a Tier change of Levaquin) and therefore exempt from the TCPA and filed a motion to dismiss, which the court granted. Plaintiff then filed a Motion for Reconsideration based on new evidence, and the court denied this motion but granted Plaintiff leave to file an Amended Complaint.

In response to the Amended Complaint, Defendant filed a Motion to Bifurcate discovery into two phases: the first to whether the faxes were informational (exempt under TCPA as opposed to advertisements) and the second phase would be on all other matters, including class action issues. Defendant sought to bifurcate because it planned on filing a Motion for Summary Judgment after the first discovery phase was complete.

Plaintiff objected to bifurcation, claiming there would be issues of fact (the documents already provided did not show a Tier ranking change) and that Defendant did not show any evidence of expected time or money savings by bifurcating discovery. Plaintiff averred bifurcation would further delay the case, which had already been pending for 18 months due to Defendant’s insistence that the faxes regarded a Tier change. Plaintiff also sought database information, and was afraid that further delay might compromise the integrity of such electronic databases.

The court turned to Federal Rule 42(b): “[f]or convenience, to avoid prejudice, or expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third party claims.” The court has wide discretion concerning bifurcation. In this case, the court agreed that bifurcation is warranted as the proposed first stage of discovery is narrow and potentially dispositive. Further, the narrow issue of whether the faxes were exempt from the TCPA are completely distinct from the class action issues with no danger of duplication, so the court found bifurcation could potentially save both parties substantial costs and burdens. Finally, the court noted that defendants had already notified third parties of the lawsuit and put them on notice to preserve all evidence, so Plaintiff’s fear that the data would be deleted was unwarranted.

ILS – Plaintiff Electronic Discovery Experts

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