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Joseph Scott Dagliano v. Eli Lilly

October 14, 2011


The opinion of the court was delivered by: Roanne L. Mann, United States Magistrate Judge:


In a letter dated October 3, 2011, pro se plaintiff Joseph Scott Dagliano ("plaintiff") essentially seeks reconsideration of this Court's September 21, 2011 ruling, which sustained the objection of defendant Eli Lilly & Co. ("Lilly") to plaintiff's July 11, 2011 request for documents (the "Request") and denied plaintiff's application to serve the Request on the Plaintiffs' Steering Committee II ("PSC"). See Letter from Joseph S. Dagliano (Oct. 3, 2011) ("10/3/11 Pl. Letter"), Electronic Case Filing Docket Entry ("D.E."), #61; Memorandum and Order (Sept. 21, 2011) ("9/21/11 M&O"), D.E. #60.

In its September 2011 ruling, this Court directed plaintiff to refrain from serving the Request on the PSC -- which is responsible for conducting discovery on behalf of all plaintiffs in this multi-district litigation ("MDL") -- because plaintiff had sat on his rights to access the PSC discovery repository for two years. See 9/21/11 M&O at 5-6. Plaintiff now contends that the PSC recently volunteered to provide limited documents to plaintiff, and that therefore this Court should allow plaintiff to serve the Request on the PSC. See 10/3/11 Pl. Letter at 2. In addition, Plaintiff requests an extension of discovery to an unspecified date in the future. See id.

For the reasons set forth below, plaintiff's motion for reconsideration is denied, although the Court will allow plaintiff to engage in informal evidence-gathering with limited, voluntary assistance from the PSC. While the Court will give plaintiff a narrow window of time to seek the PSC's assistance, his motion to extend formal, court-supervised discovery is denied.


In 2007, as part of an ongoing MDL concerning the anti-psychotic drug Zyprexa, plaintiff filed this personal injury suit against Lilly. See generally Complaint (May 7, 2007), D.E. #1. Recognizing the complex nature of MDLs, the Honorable Jack B. Weinstein had previously ordered that all pretrial discovery in the Zyprexa MDL would be exclusively managed through the PSC. See Case Management Order No. 1 (June 15, 2004) ("CMO No. 1") at 37-40, attached as Ex. C to Defendant's Opposition to Plaintiff's Objections ("Def. Opp."), D.E. #59.

On July 11, 2011, plaintiff served Lilly with the Request pursuant to Rule 34 of the Federal Rules of Civil Procedure ("FRCP"). See Request for Production, attached at p. 51 of Exhibit B to Def. Opp. Lilly served its response on August 5, 2011. See Def. Opp., Ex. B at 59. The following month, plaintiff filed a motion objecting to Lilly's response, which Judge Weinstein referred to the undersigned magistrate for resolution. See Plaintiff's Response to Defendant's Objections, D.E. #58.

In a written opinion issued on September 21, 2011, this Court sustained Lilly's objections to plaintiff's Request. See 9/21/11 M&O at 7. The Court further denied plaintiff's application to serve the Request directly on the PSC. See id.

In making its ruling, the Court found that plaintiff was made aware during a January 25, 2008 telephone conference with the Court that (1) he was prohibited from serving discovery demands directly on Lilly; and (2) per CMO No. 1, all pretrial discovery had to be conducted through the PSC. See id. at 4. The Court further found that plaintiff had had ample opportunity to access the electronic PSC document repository -- namely, between July 2008, when plaintiff was released from prison, and August 2010, when he informed the Court that he had been imprisoned again. See id. at 5. The Court concluded that because plaintiff failed to avail himself of the PSC documents for the nearly two years he was out of prison, the Court would not authorize him to now serve the Request on the PSC. See id. at 5-6.

On September 16, 2011, a few days prior to the issuance of this Court's Memorandum and Order, Judge Weinstein held a telephonic status conference with plaintiff, Lilly and William Audet, an executive committee member of the PSC. See Minute Entry (Sept. 16, 2011), D.E. #62. During the status conference, Mr. Audet informed plaintiff that "[w]e can get you what you think you need for your case[,] but we can't just provide [the entire repository] because some of it is confidential. If[,] after the hearing[,] you need something or there are specific documents, we can provide you with them no problem whatsoever." Transcript (Sept. 16, 2011) ("Tr.") at 8. Mr. Audet further commented that the PSC could "give [him] documents that are relevant to [his] case to help [him] defend [his] case or prosecute it[,]" including unspecified medical records. See Tr. at 9.

On October 3, 2011, plaintiff wrote a letter requesting that the Court reconsider its September 21 ruling in light of Mr. Audet's comments during the September 16 status conference. See 10/3/11 Pl. Letter at 2. He further requested that this Court extend fact discovery to an unspecified date in the future. See id.


I. Reconsideration of its Prior Ruling

"Motions for reconsideration are governed by Local Rule 6.3 and are committed to the sound discretion of the [ ] court." Reddy v. Salvation Army, No. 06-CIV-5176 (SAS), 2008 WL 4755733, at *1 (S.D.N.Y. Oct. 27, 2008) (citing Patterson v. United States, No. 04-CIV-3170 (WHP), 2006 WL 2067036, at *1 (S.D.N.Y. July 26, 2006)). Ordinarily, motions for reconsideration should "'be denied unless the moving party can point to controlling decisions or data that the court overlooked -- matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.'" Reddy, 2008 WL 4755733, at *1 (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). Accordingly, "Local Civil Rule 6.3 is narrowly construed and strictly applied in order to avoid repetitive arguments already considered by the Court." Reddy, 2008 WL 4755733, at *1 (citing Lichtenberg v. Besicorp Group Inc., 204 F.3d 397, 400 (2d Cir. 2000)). Given the narrow scope of Local Rule 6.3, a party seeking ...

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