In Re: Disposable Contact Lens AntiTrust Litigation This Document Relates to: All Actions Case No. 3:15-md-2626-J-20JRK United States District Court, M.D. Florida Filed November 02, 2017 Klindt, James R., United States Magistrate Judge ORDER *1 This cause is before the Court on the following discovery motions related to Alcon Laboratories, Inc. (“Alcon”). 1. Plaintiffs’ Motion to Compel Alcon to Produce Electronically Stored Information from One Additional Custodian (Doc. No. 590, filed August 29, 2017; Doc. No. S-597, filed September 1, 2017),[1] to which Alcon responded in opposition, see Alcon’s Opposition to Plaintiffs’ Motion to Compel Alcon to Produce Electronically Stored Information from an Additional Custodian (Doc. No. 617, filed September 12, 2017; Doc. No. S-627, filed September 14, 2017), accompanying declarations of Dwight Akerman (Doc. No. 618, filed September 12, 2017; Doc. No. S-629, filed September 14, 2017) and A. Graham Allen (Doc. No. 619, filed September 12, 2017; Doc. No. S-631, filed September 14, 2017).[2] With leave of Court, see Orders (Doc. Nos. 583, 634), Plaintiffs replied and Alcon sur-replied, see Plaintiffs’ Reply in Support of Their Motion (Doc. No. 639, filed September 19, 2017; Doc. No. S-643, filed September 20, 2017); Alcon’s Sur-Reply in Further Opposition to Plaintiffs’ Motion (Doc. No. 658, filed September 26, 2017; Doc. No. S-663, filed September 27, 2017). Upon review of the parties’ papers related to this motion and the file, the motion (Doc. Nos. 590, S-597) is GRANTED in part and DENIED without prejudice in part. The Motion is GRANTED to the extent that, no later than November 30, 2017, Alcon must produce all communications between Dr. Eiden and Dr. Akerman.[3] These communications are relevant, and the burden of producing them does not outweigh the likely benefit. See Fed. R. Civ. P. 26(b)(1). The Motion is otherwise DENIED without prejudice because Alcon has shown that searching for Dr. Akerman’s remaining electronically stored information (“ESI”) is unduly burdensome, and any potential relevance of Dr. Akerman’s remaining ESI is outweighed by its likely benefit. See id. If the forthcoming documents shed more light on the relevance/importance of Dr. Akerman’s remaining ESI, Plaintiffs may renew the request for Dr. Akerman’s remaining ESI no later than December 15, 2017. In any renewed request, Plaintiffs shall be sure to address whether there is good cause to make Alcon produce the information in light of the Court’s finding that producing the information subjects Alcon to an undue burden. See Fed. R. Civ. P. 26(b)(2)(B). *2 2. Plaintiffs’ Motion to Compel Defendant Alcon to Produce Unredacted Exhibits and Final Versions of Presentations from Eugene Straub’s and David Dowd’s Depositions (Doc. No. 591, filed August 29, 2017; Doc. No. S-598, filed September 1, 2017), to which Alcon responded in opposition, see Alcon’s Opposition to Plaintiffs’ Motion to Compel Alcon to Produce Unredacted and “Final” Versions of Certain Documents (Doc. No. 620, filed September 12, 2017; Doc. No. S-625, filed September 14, 2017), accompanying declarations of Jason Klomp (Doc. No. 621, filed September 12, 2017; Doc. No. S-628, filed September 14, 2017) and Sarah V. Warburg-Johnson (Doc. No. 622, filed September 12, 2017; Doc. No. S-626, filed September 14, 2017). With leave of Court, see Orders (Doc. Nos. 583, 634), Plaintiffs replied and Alcon sur-replied, see Plaintiffs’ Reply in Support of Their Motion (Doc. No. 640, filed September 19, 2017; Doc. No. S-644, filed September 20, 2017); Alcon’s Sur-Reply in Further Opposition to Plaintiffs’ Motion (Doc. No. 659, filed September 26, 2017; Doc. No. S-664, filed September 27, 2017). In connection with this motion, Alcon also submitted the documents at issue for in camera review.[4] The Court has reviewed in camera the documents that Alcon clawed back as attorney-client privileged and work product protected. As to the assertion of work-product protection, the undersigned finds that the documents are not work product because they were not prepared in anticipation of litigation.[5] As to the assertion of attorney-client privilege, while the undersigned is satisfied that the documents summarize communications reflecting primarily legal—rather than business—advice, Alcon’s assertion of the attorney-client privilege is complicated by the allegation that some form of the PowerPoint presentations was shared with the sales force, and possibly (but not to Alcon’s current knowledge) with third parties.[6] The assertion is further complicated because, although Alcon represents that the PowerPoint versions at issue were not presented to third parties, it does not explain or provide the versions that were presented to the sales force. In its Sur-Reply (Doc. No. 659), Alcon states at page 9 that “[t]he Redacted Text was shared only with Alcon personnel who needed to know it; the advice was provided for the specific purpose of guiding sales representatives.” Yet, it does not identify specifically with whom the advice was shared or what final information was provided to the sales representatives (or any third parties). These questions have to be answered before the undersigned can determine whether any alleged confidentiality was maintained and whether there was a waiver. *3 In short, the Court needs more specific information prior to making a decision on this issue. The Motion (Doc. Nos. 591, S-598), therefore, is TAKEN UNDER ADVISEMENT. No later than November 30, 2017, Alcon shall file a supplement answering these questions to the best of its ability upon further reasonable inquiry.[7] Alcon may provide argument as part of its supplement. Plaintiffs may respond to the supplement by December 15, 2017. 3. Plaintiffs’ Motion to Compel Defendant Alcon to Search for and Produce Statements of Work for the KS&R Videos (Doc. No. 592, filed August 29, 2017; Doc. No. S-599, filed September 1, 2017), to which Alcon responded in opposition, see Alcon’s Opposition to Plaintiffs’ Motion to Compel KS&R Statements of Work (Doc. No. 616, filed September 12, 2017; Doc. No. S-624, filed September 14, 2017). With leave of Court, see Orders (Doc. Nos. 583, 634), Plaintiffs replied and Alcon sur-replied, see Plaintiffs’ Reply in Support of Their Motion (Doc. No. 641, filed September 19, 2017; Doc. No. S-645, filed September 20, 2017); Alcon’s Sur-Reply in Further Opposition to Plaintiffs’ Motion (Doc. No. 660, filed September 26, 2017). Upon review of the parties’ papers and the file, especially the Order entered July 5, 2017 relating to this issue (Doc. No. 543), the motion (Doc. Nos. 592, S-599) is GRANTED to the following extent. No later than November 30, 2017, Alcon shall conduct a reasonable search and produce any statement(s) of work detailing Alcon’s directives and objectives for the videos it created of ECPs discussing the UPPs or retail pricing of contact lenses, if Alcon has any such statement(s) in its possession, custody, or control. If nothing of the sort is in its possession, custody, or control, Alcon shall so state by November 30, 2017.[8] DONE AND ORDERED at Jacksonville, Florida on November 2, 2017. Footnotes [1] There are two versions of the Alcon discovery motions before the Court and some of the related documents: a redacted public version; and an unredacted version filed under seal with the Court’s permission because it contains confidential information. If there are two docket numbers listed for a particular filing, the docket number beginning with “S-” denotes the version filed under seal. [2] Other declarations submitted in connection with the Alcon discovery motions before the Court are attached to the motions or other filings and are not separately cited herein. All declarations, regardless of whether cited, were considered. [3] The undersigned declines to limit this ruling to pre-June 2013 communications (Alcon’s proposed compromise). [4] As is customary with most in camera document reviews, the documents were submitted directly to chambers (with Plaintiffs’ knowledge) and are not part of the official record. [5] “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative,” subject to certain exceptions. Fed. R. Civ. P. 26(b)(3)(A) (emphasis added); see Hickman v. Taylor, 329 U.S. 495 (1947). “It is admittedly difficult to reduce to a neat general formula the relationship between preparation of a document and possible litigation necessary to trigger the protection of the work product doctrine.” United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. 1981) (citations omitted). Litigation, however, “need not necessarily be imminent ... as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.” Id. (citations omitted); see U.S. Fidelity & Guar. Co. v. Liberty Surplus Ins. Corp., 630 F. Supp. 2d 1332, 1337 (M.D. Fla. 2007) (citations omitted) (stating that “[t]he determinative question is whether the prospect of litigation was the primary motivating purpose behind the creation of a particular document”). The party asserting the privilege carries “the burden of proving the existence of the privilege.” U.S. Fidelity & Guar. Co., 630 F. Supp. 2d at 1336 (citations omitted). Alcon has not met its burden of showing that the documents were created to aid in possible future litigation. [6] See, e.g., Response (Doc. No. 620) at 12 (stating that “we have repeatedly told Plaintiffs that we do not believe the documents were finalized or externally presented”; “the record does not show that these presentations were given to distributors”; and “we believe the documents referenced are drafts that were never finalized and never used externally”) (emphasis added) (citations omitted); see also Declaration of Jason Klomp (Doc. No. S-628). [7] In endeavoring to answer these questions, Alcon should also attempt to determine whether the fourth document at issue in the Motion (but not claimed to be privileged or protected (Dowd Ex. 17)) is a final or draft document. [8] Alcon’s representation that “we do not believe they exist” (Doc. No. 660 at 2) does not suffice at this point.