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In re 3M Combat Arms Earplug Products Liability Litigation

United States District Court, N.D. Florida, Pensacola Division

October 9, 2019

IN RE: 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION, This Document Relates to All Cases

          M. Casey Rodgers Judge

          ORDER

          GARY R. JONES UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the following submissions:[1] (1) Defendants' Memorandum of Law Regarding Plaintiffs' Requests for Production Seeking Certain Moldex Depositions, ECF No. 686; (2) Plaintiffs' Motion To Compel Discovery and Memorandum of Law, ECF No. 688; and (3) Defendants' Memorandum of Law Regarding Plaintiffs' Requests for Production That Seek Information Regarding Predecessor and Successor Designs of the 3M Earplugs. ECF No. 689.

         The dispute outlined in the parties' submissions concerns two issues the parties were unable to resolve. The first dispute relates to four of the 28 transcripts of depositions taken in two prior lawsuits related to the Combat Arms Earplug Version 2 (“CAEv2”) between 3M Company (“3M”) and Moldex, one of 3M's competitors.[2] The four deposition transcripts are the depositions of: (1) Karl Hanson, an IP attorney at 3M; (2) Eric Levinson, an IP attorney at 3M; (3) Julie Bushman, then 3M's Vice President of Business Information and Information Technology; and (4) Frank Little, then 3M's Vice President of the Safety and Graphics group.

         The second dispute relates to Plaintiffs' request for Defendants to produce several categories of documents concerning the predecessor and successor designs of the CAEv2. These designs include the CAEv1, CAEv3, CAEv4, CAEv4.1, UltraFit and TCAPS earplugs. As to these non-CAEv2 earplugs Defendants seek production of documents relating to the predecessor and successor designs, product complaints, packaging and instructions, marketing studies and analyses and sales and government procurement documents.

         DISCUSSION

         A. Production of Certain Moldex Depositions

         So far, Defendants have produced in their entirety 24 of the 28 depositions from the Moldex cases. Four of the transcripts remain in dispute. Defendants say they should not be required to produce these transcripts because the testimony in each of these depositions primarily relates to 3M's review and investigation of the Moldex BattlePlug earplug and the M series earmuggs, and particularly 3M's decision to bring a patent enforcement action regarding those products. According to 3M, the issues in the Moldex litigation have little to do with the issues in this MDL. This MDL case is a products liability action, concerned with whether Defendants were negligent in their design, testing and labeling of the CAEv2. Defendants argue that the testimony in the four withheld depositions[3]concerns 3M's internal processes for investigating and prosecuting potential patent infringements, and 3M's motivation for suing Moldex for patent infringement in 2012-issues 3M says have nothing to do with the issues in this MDL.

         Plaintiffs look at the withheld deposition transcripts differently. Plaintiffs contend that the information in the four withheld transcripts is highly relevant for at least three reasons. First, Plaintiffs argue that any efforts by 3M to block the sale of Moldex's competing design-a design that 3M contended was substantially similar or equivalent to the CAEv2- would demonstrate (in the eyes of 3M) such design was a reasonable alternative. Second, Plaintiffs say that any information in the withheld transcripts suggesting that Defendants ascribed the design and technology of the CAEv2 to their own ingenuity and efforts (and not to the Government) would tend to disprove 3M's defense that the Government was responsible for the CAEv2 design. Lastly, Plaintiffs argue that 3M's efforts to block a safer alternative design could be used to refute any argument by 3M that it always put service member safety and protection before financial transactions. While Plaintiffs' arguments have superficial appeal, the testimony in three of the four withheld transcripts offers no information, which could be used to advance these theories.[4]

         In resolving Plaintiffs' request to produce the four withheld deposition transcripts the Court has conducted an in camera review of the testimony in the withheld depositions. While Plaintiffs have raised colorable arguments in support of their request to obtain the four withheld transcripts, the testimony in three of the four withheld deposition transcripts has little to do with issues relevant in this MDL. Instead, the lion's share of the questioning and responses in the depositions concerns 3M's patent review and investigation.

         For example, the testimony of Karl Hanson, a Senior Intellectual Property counsel for 3M, evidences Mr. Hanson's limited role in the Moldex litigation and that his involvement concerned primarily providing infringement assessments of the various Moldex products before suit was filed. Other than providing patent assessments Hanson did not have any significant involvement in the Moldex litigation and had no involvement in the safety, development or design of the CAEv2. Indeed, most of the questioning in the Hanson deposition involved questions about Hanson's views and interpretation of the claims in the accused Moldex patents- questions which Mr. Hanson declined to answer based upon work product and attorney-client privilege instructions from counsel. The testimony in the transcripts for Levinson, Bushman[5] and Hanson fail to provide any information, which arguably would provide insight to the issues in this case.

         The bottom line is that the withheld testimony in the Hanson, Levinson and Bushman depositions concerns 3M's patent review and assessment of infringement and prosecution issues concerning the Moldex patents. While the questioning in these depositions is relevant to the patent infringement claims between Moldex and 3M the testimony does not provide any information, which arguably could assist Plaintiffs or the trier of fact in this case in resolving the issues in this MDL. In short, the testimony in the Hanson, Levinson and Bushman transcripts offers nothing which Plaintiffs could use to support any of their three asserted theories.

         The Little deposition is somewhat different. Little was the Vice President of the Safety and Graphics group. Although some of the questioning was focused upon the reasons for 3M bringing the patent infringement suit against Moldex, that was not the only testimony provided. The Little transcript contains testimony concerning the discontinuance of sales of the “Combat Arms” earplug and other hearing devices, the launch of a new earplug that could be sold to the military and generally information concerning sales of hearing protection devices to the military. While the sum and substance of the testimony in the Little transcript is not remarkable, some of the testimony does touch upon in a general sense the ear protection devices involved in this case and 3M's sales to the military.

         The Court, therefore, concludes that the Little transcript in a general sense contains information relevant to the MDL. Consequently, 3M must produce to Plaintiffs the transcript of the Little deposition. But 3M is not required to produce the withheld ...


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