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Levin v. Johnson & Johnson

United States District Court, E.D. New York

November 20, 2017

ISAAC LEVIN, Plaintiff,
v.
JOHNSON & JOHNSON and JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Defendant.

          ORDER

          ANNE Y. SHIELDS UNITED STATES MAGISTRATE JUDGE

         Isaac Levin (“Levin” or “Plaintiff”), proceeding pro se, filed this action against Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc., (collectively “Johnson & Johnson” or “Defendants”), on November 30, 2016, alleging that Johnson and Johnson Baby Shampoo (the “product”), knowingly contained toxic chemicals which, after years of use, resulted in Plaintiff developing a tumor on the back of his head which required two surgeries to remove. Plaintiff's Complaint contains, inter alia claims of strict liability for failure to warn, breach of express and implied warranties, negligence and negligent misrepresentation.

         Presently before this Court are Plaintiff's two motions to compel discovery from Defendants. See Docket Entry (“DE”) [33], [35]. Specifically, Plaintiff moves to: (1) expand the number of interrogatories from twenty-five to fifty; (2) to amend the current discovery schedule;[1]and (3) to compel response to Plaintiff's interrogatories. For the reasons set forth below, Plaintiff's motions are GRANTED in part and DENIED in part.

         DISCUSSION

         I. Legal Standards

         The scope of discovery is set forth in Rule 26 of the Federal Rules of Civil Procedure. That Rule has been amended, on several occasions, to reflect evolving judgments as to the proper scope of discovery. Over time, these amendments have been aimed at striking the proper balance between the need for evidence, and the avoidance of undue burden or expense.

         In 1999, Rule 26(b)(1) stated that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” Fed.R.Civ.P. 26(b)(1) (1999). In 2000, in an effort to curb over-discovery that took advantage of tying the term “subject matter” to the definition of the scope of discovery, Rule 26 was amended. See Fed.R.Civ.P. 26(b)(1), Advisory Comm. Notes (2000). That amendment required a party to show “good cause” before obtaining discovery that is “relevant to the subject matter involved in the action.” Fed.R.Civ.P. 26(b)(1).

         Most recently, as of December 1, 2015, Rule 26 has again been amended. The December 2015 amendment to Rule 26 now defines the scope of discovery to consist of information that is relevant to the parties' “claims and defenses.” Pursuant to Fed.R.Civ.P. 26:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Fed. R. Civ. P. 26(b)(1). Information “is relevant if: ‘(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Vaigasi v. Solow Mgmt. Corp., 2016 WL 616386, at *11 (S.D.N.Y. Feb. 16, 2016) (quoting Fed.R.Evid. 401). Further, “[t]he party seeking the discovery must make a prima facie showing, that the discovery sought is more than merely a fishing expedition.” Evans v. Calise, 1994 WL 185696, at *1 (S.D.N.Y. 1994); see also Mandell v. The Maxon Co., Inc., 2007 WL 3022552, at *1 (S.D.N.Y. 2007) (“[T]he party seeking discovery bears the burden of initially showing relevance.” (citation omitted)); see also Surles v. Air France, 2001 WL 1142231, at *2 (S.D.N.Y. 2001) (refusing to permit discovery where defendant had no factual basis that requests would lead to relevant evidence). It is well-established that “[m]otions to compel are left to the court's sound discretion.” Mirra v. Jordan, 2016 WL 889683, at *2 (S.D.N.Y. 2016); see also Liberty Mut. Ins. Co. v. Kohler Co., 2010 WL 1930270, at *2 (E.D.N.Y. 2010) (“[A] motion to compel is entrusted to the sound discretion of the district court.”).

         Thus, the discretionary authority to allow discovery of “any matter relevant to the subject matter involved in the action” has been eliminated. Additionally, the current version of Rule 26 defines permissible discovery to consist of information that is, in addition to being relevant “to any party's claim or defense, ” also “proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1).

         While proportionality factors have now been incorporated into the Rule 26(b)(1) definition, those factors were already a part of Federal discovery standards, appearing in Rule 26(b)(2)(C)(iii). Those proportionality factors have now been restored to the place of their intended importance by their incorporation into the very definition of permissible discovery. See Fed.R.Civ.P. 26(b)(1), Advisory Comm. Notes (2015) (noting that amendment “restores the proportionality factors to their original place in defining the scope of discovery, ” and “reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses, or objections”).

         The specific proportionality factors to be assessed when considering the scope of discovery are:

• The importance of the issues at stake in the litigation;
• The amount in controversy;
• The parties' relative access to relevant information;
• The parties' resources;
• The importance of discovery in resolving issues; and
• Whether the burden or expense of the discovery is outweighed by the benefit

Fed. R. Civ. P. 26(b).

         Notably absent from the present Rule 26 is the all too familiar, but never correct, iteration of the permissible scope discovery as including all matter that is “reasonably calculated to lead to” the discovery of admissible evidence. This language was never intended to define the scope of discovery, but was intended only to make clear that the discovery is not limited by the concept of admissibility. Unfortunately, the “reasonably calculated” language has often been employed to refer to the actual scope of discovery. Clearing up this misinterpretation, the new Rule disposes of this language, ending the incorrect, but widely quoted, misinterpretation of the scope of discovery. The present definition of the scope of ...


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