In In Re: Smith & Nephew Birmingham Hip Resurfacing (Bhr) Hip Implant Products Liability Litigation, MDL No. 2775, Master Docket No. 1:17-md-2775 (D. Md. Dec. 23, 2020), the Court denied a sanctions motion, attributing a failure to produce an inconsistent email to search parameters that were too narrow. The Court held that there was no intentional misconduct, writing: “These motions concern the apparent disconnect between, on the one hand, the representations of [defendant] Smith & Nephew’s counsel that Dr. Peter Heeckt, the company’s former Chief Medical Officer, left on amicable terms and was not fired from his position and, on the other hand, an email later produced in discovery in which Heeckt characterizes his departure from the company as a ‘functional terminat[ion].’”
While employed by the defendant, Heeckt had sought to publish failure data regarding defendant’s hip-implant devices. Plaintiff, “[u]surprisingly,” sought discovery from him. Defendant objected and defense counsel sent an email that Heeckt’s departure was “amicable” but that it would nevertheless produce related correspondence. It produced an email with an official announcement of Heeckt’s departure.
Plaintiffs moved to compel. In oral argument, defense counsel reiterated that the departure was amicable and Heeckt was “not fired.” Counsel said that there was “simply nothing to [the] story” that Heeckt was fired or asked to leave the company. The Court ordered production of any documents not previously produced that addressed the reasons for Heeckt’s departure.
Defendant produced 186 new documents “including a December 16, 2011, email from Heeckt suggesting he was ‘functionally terminated’” and citing the fact that certain of his duties had been “significantly diminished” in a reorganization. Plaintiffs asserted that the email contradicted the representations of defense counsel.
Plaintiffs sought sanctions under Rules 26 and 37, and the Court’s inherent powers. They asserted breach of the duty of candor or the duty to correct false statements.
Defendant replied that the term “functionally terminated” was used to secure severance pay. Heeckt was deposed and confirmed the argument. He testified that the phrase was used to obtain severance benefits, and that he was not fired nor was he asked to leave the company.
Defendant also filed a declaration stating that defense counsel did not discover the email until after the Court order compelling production. Heeck’s email was dated December 16, 2011. By April 2012, he had left the company. Defense counsel stated that it had focused on the early to mid-2012 time period in searching for correspondence related to Heeck’s departure, thereby missing the 2011 email.
As to Rule 26, the Court wrote that it had received no evidence showing that defense counsel did not, to the best of their knowledge after reasonable inquiry, believe their positions were warranted. The email was found only after the Court ordered a broader search. Thus, there was no reason to believe that defense counsel deliberately withheld it. In fact, it was produced promptly after it was discovered.
Turning to Rule 37, the Court noted that it “appreciates that, at least at first glance, it is somewhat difficult to understand” why the email was not produced. It noted that the word “terminated” appeared in the email. Defense counsel asserted that they had focused on a different time period in searching for departure correspondence. The Court wrote that it could not conclude that counsel made any false representations to plaintiffs or the Court. Nor did it find that counsel had knowledge sufficient to require supplementation.
The Court held that this was not the rare case in which to exercise inherent powers. It determined that there was no evidence of discovery misconduct or any misrepresentations.
It is well-established that “perfection” has never been the standard in e-discovery.