The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
In an order filed January 11, 2008, defendants Edwards Lifesciences Corporation , Edwards Lifesciences LLC, and Edwards Lifesciences (U.S.), Inc. (collectively "Edwards") were directed to disclose to plaintiffs Robert Strini and Terry Strini (collectively the "Strinis") certain documents to which Edwards had declined production in response to the Strinis' discovery demands. Docket No. 150 ("Order"). Presently pending is Edwards' motion for reconsideration of that order. Docket No. 154. The Strinis oppose the motion. Docket No. 157. For the reasons which follow, the motion for reconsideration is denied.*fn1
To obtain reconsideration of an order, the moving party must demonstrate (1) an intervening change in the controlling law, (2) new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice. See Wyatt v. Afzal, No. 9:04CV0837(LEK/DRH) , 2007 WL 952019, at *1 (N.D.N.Y. Mar. 27, 2007); Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y.1995) (McAvoy, C.J.) (citing Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983)). Edwards seeks reconsideration under this standard on various grounds.
First, Edwards contends*fn2 that the documents ordered disclosed should somehow be judged by a different standard because they contain "confidential and highly sensitive information." See, e.g., Marangas Decl. (Docket No. 154, pt. 2) at ¶ 13).*fn3 There exists no provision excluding from discovery such information per se, however. Rather, sensitive information may be protected from unnecessary disclosure through a protective order. See Fed. R. Civ. P. 26(c). A stipulated protective order was entered in this case on March 1, 2006. Docket No. 38. The Order compelled disclosure of the documents in question under the protection of that order. Order at 3. Thus, the documents have been granted all reasonable protection required in these circumstances and this ground fails to satisfy the requirements for reconsideration.*fn4
Edwards next contends that on their face, the documents at issue have no bearing on any matters at issue in this case. Marangas Decl. at ¶¶ 13-19. This contention was considered and rejected in the Order and no matter not previously considered has been offered by Edwards. Therefore, Edwards' motion on this ground is denied.
Edwards also contends that the Order could be misinterpreted to require Edwards to disclose other information beyond what Edwards believes relevant. Marangas Decl. at ¶¶ 20-23. First, however, the Order addresses the matters raised by the parties regarding those specific documents and on that particular record. Considering what ruling might be made on other documents in the absence of an adequate record and, as here, a review of the documents in question requires pure speculation. Second, discovery closes in five days. See Docket No. 140 (extending discovery deadline to March 30, 2007). It is now too late for further discovery demands to be made. See Fed. R. Civ. P. 34(b)(2) (granting the responding party thirty days to serve responses to document demands); N.D.N.Y.L.R. 16.2 (discovery demands requiring response after the close of discovery will not be enforced). Accordingly, this argument as well affords no basis for reconsideration.
Finally, Edwards contends that because the Supreme Court has now decided a case which arguably denies the Strinis several of its claims, the documents at issue are irrelevant. Marangas Decl. at ¶¶ 24-31; see also Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008), affirming 451 F.3d 104 (2d Cir. 2006). Riegel holds that where Food and Drug Administration (FDA) approval procedures have established federal requirements, state common law claims of negligence, strict liability, and implied warranty against a manufacturer are preempted. Edwards contends that Riegel governs this case, its holding necessarily mandates judgment for Edwards on the Strinis claims for design defect, and it was clear error in the Order to compel disclosure based on that and related claims. Marangas Decl. at ¶ 26.
First, accepting Edwards' contention would require a determination of the merits of the Strinis' claims. Rulings on such dispositive issues are reserved to the district court. See 28 U.S.C. § 636(b)(1)(A). As the record presently stands, the Strinis' claims survive, Edwards joined the issues by filing an answer (Docket Nos. 9, 23), and discovery must proceed on all such claims unless and until they are removed from the case by a ruling from the district court. No such ruling has been entered here by the district court.*fn5 Thus, at this stage, all of the Strinis' claims remain at issue and constitute fair and relevant grounds for discovery.
Second, even assuming that the Strinis' claims have been narrowed by Riegel, their claims that Edwards negligently failed to comply with FDA-approved procedures appears to remain viable after Riegel. The documents ordered disclosed may reasonably lead to the discovery of evidence that the procedures followed by Edwards failed to comply with the procedures approved by the FDA and breached express warranties. For the reasons stated in the Order, the documents ordered disclosed remain relevant to those issues within the meaning of Rule 26(b)(1). Accordingly, Edwards' contention here fails to satisfy its burden for reconsideration. The district court and Second Circuit decisions in Riegel were both known at the time of the Order and do not constitute an intervening change in prevailing law. Moreover, there is no showing of a clear error of law or manifest injustice since, even after Riegel, the documents ordered disclosed remain relevant to the Strinis' claims. Edwards' motion based on Riegel and federal preemption must, therefore, be denied.
ORDERED that Edwards' motion for reconsideration (Docket No. 154) is DENIED in all respects.