In Re: Disposable Contact Lens Antitrust Litigation This Document Relates to: Alcon Vision, LLC v. Lens.com, Inc. No. 3:19-cv-706-HES-LLL Nos. 3:15-md-2626-HES-LLL, 3:19-cv-706-HES-LLL United States District Court, M.D. Florida Filed June 03, 2022 Lambert, Laura L., United States Magistrate Judge Order Denying Lens.com's Motions to Compel *1 Before the Court are two motions filed by Lens.com, Inc.: Motion to Compel Alcon to Produce MDL Expert Materials, MDL doc. 1267,[1] and Motion to Compel Alcon to Produce Post-2016 Documents, MDL doc. 1268. Alcon Vision, LLC opposes both motions, MDL docs. 1271, 1276. Background In 2015, a consolidated class action complaint was filed in Multidistrict Litigation No. 2626 (MDL) involving allegations of anticompetitive behaviors aimed at setting the sale price for disposable contact lenses in the United States. See TA doc. 72 (citing In Re: Disposable Contact Lens Antitrust Litig., 109 F. Supp. 3d 1369 (J.P.M.L. 2015)). MDL Plaintiffs alleged defendants, including Alcon, conspired with each other (and others not named in the lawsuit) by imposing unilateral pricing policies (UPPs) on certain contact lenses; the UPPs set minimum resale prices. The use of the UPPs reduced or eliminated price competition from big box stores, buying clubs, and internet-based retailers because they were unable to discount the contact lenses. MDL doc. 395 ¶ 2. The conduct alleged, according to plaintiffs, constituted per se or rule-of-reason violations of the Sherman Act, 15 U.S.C. §§ 1 and 3, as well as violations of California and Maryland law. MDL doc. 395. In December 2018, Judge Schlesinger certified several classes of plaintiffs to include numerous retail purchasers of disposable contact lenses between 2013 and 2016 when the UPP was in place. See TA doc. 72, MDL doc. 940 at 174-76. Since these motions to compel were filed, MDL docs. 1267, 1268, the claims in the underlying class action have been preliminarily resolved, MDL doc. 1343. At least ten-experts provided opinions or testimony during the underlying class action. According to Alcon, these experts “have offered opinions on topics ranging from class certification to damages allegedly suffered by purchasers of contact lenses.” MDL doc. 1271 at 2. The matter that is subject to the motions to compel, however, has a different origin. On January 19, 2018, Alcon sued Lens.com in the Eastern District of New York (EDNY) for, among other claims, trademark infringement, false advertising, and unfair competition, TA doc. 1.[2] Lens.com responded and filed eleven counterclaims. Counterclaims 3 and 4 related to Alcon's UPPs, TA doc. 67. Count 3 is captioned as a “per se violation related to UPPs” and alleges that Alcon “implemented UPPs” which threatened “[non-eye care professional] vendors of contact lenses with the loss of the ability to sell the products covered by the UPP if they refused to abide by the UPP's terms.” TA doc. 67 ¶ 332 (italics in the original). Count 4 is captioned as a “Rule-of-Reason Violation Related to UPPs” and alleges that Alcon, acting with other entities (including contact lens manufacturers), violated federal antitrust law by adopting, implementing, and enforcing UPPs for contact lenses. Id. ¶ 343. As a result of these actions, Lens.com was “unable to maintain a full product line, suffered damage to its reputation, lost customer goodwill” and “forced to purchase lenses through grey-market sellers and other alternative suppliers.” Id. ¶ 336; see also id. ¶ 345. *2 The remaining nine counterclaims brought by Lens.com were for per se and rule-of-reason violations of the Sherman Act, Clayton Act, and Donnelly Act, related to Alcon's “Post-UPP Actions, including Tying Arrangements, Group Boycott, and Trademark Misuse” (counts 1 and 2, TA doc. 67 at 77-79); unlawful monopolization (count 5, id. at 84-85); attempted monopolization (count 6, id. at 86-87); unlawful use of exclusive dealing agreements (count 7, id. at 88-89); false advertising and deceptive trade practices under New York General Business Law (count 8, id. at 89-90); false or misleading description or representation of fact (count 9, id. at 91-93) declaratory judgment of non-infringement of trademark (count 10, id. at 93-94); and declaratory judgment of invalidity of the trademark (count 11, id. at 94-95). See generally TA doc. 72. On February 28, 2019, Lens.com informed the Honorable Nina Gershon, the district judge presiding over the action in EDNY, that it had filed a Notice of Potential Tag-Along Action before the United States Joint Panel on Multidistrict Litigation (Panel), TA doc. 45, which requested that the action, in its entirety, be transferred to the MDL assigned to Judge Schlesinger in the Middle District of Florida, id. at 4. On June 6, 2019, the Panel transferred only counterclaims 3 and 4 related to Alcon's UPPs, TA doc. 72 at 2. The Panel noted that Lens.com would be a unique party to the MDL because its counterclaims involve resellers, instead of consumers. Id. The remaining nine counterclaims were separated by the Panel and remanded to EDNY pursuant to 28 U.S.C. § 1407(a). Id. Motion to Compel Alcon to Produce Post-2016 Documents Lens.com asks this Court to compel Alcon to produce documents responsive to its requests for production dated after December 31, 2016, MDL doc. 1268. Alcon opposes the request because it argues the documents are not relevant to the claims before this Court, and their production would be burdensome and not proportional to the needs of this case, MDL doc. 1276. This Court maintains broad discretion under Rule 26 to grant or deny a motion to compel discovery. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.2d 1292, 1307 (11th Cir. 2011). “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[;]” with a court considering these factors in making its determination: “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 of expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b). Federal Rule of Civil Procedure 34 (a) allows a party to serve on any other party a request within the scope of Rule 26(b). Lens.com, as the party seeking the post-2016 discovery, has the initial burden of proving the information it seeks is relevant. Gober v. City of Leesburg, 197 F.R.D. 519, 521 (M.D. Fla. 2000) (citations omitted); Callaway v. Lee Mem. Health Sys., No. 2:19-cv-745-SPC-MRM, 2021 WL 6125445, at *1 (M.D. Fla. Sept. 30, 2021) (citations omitted)). Alcon must then show why the discovery sought is overbroad, unreasonable, or unduly burdensome. Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1559-60 (11th Cir. 1985) (additional citations omitted). The UPPs ended in December 2016, and as noted above, the two causes of action before the Court are for a per se violation related to the UPPs (count 3), TA doc. 67, ¶¶ 329-37, and a rule-of-reason violation related to UPPs (count 4), id. at 81, ¶¶ 338-47. Lens.com also alleged violations related to post-UPP actions, but those counts remained in the EDNY suit. See TA doc. 67 at 77-82; see also TA doc. 72. On August 5, 2020, while this case was pending, Lens.com voluntarily dismissed the post-UPP counterclaims that were pending in the EDNY. See Case No. 1:18-cv-00407-NG-RLM, doc. 258 (voluntarily dismissing its “antitrust counterclaims” 1, 2, 5, 6, and 7 and explaining “non-antitrust counterclaims 8-10 will remain active and pending in [the EDNY] action and Lens.com's two antitrust counterclaims... that were transferred by [the Panel] to join [the] MDL ... and will remain active in the MDL.”).[3] *3 Lens.com argues it is entitled to material from December 2016 until the present because Alcon continued its boycott and anticompetitive behavior after the UPPs ended in December 2016, to prevent Lens.com from purchasing Alcon lenses and to “shut-down Lens.com and the ‘gray’ market.” MDL doc 1268 at 2, 6-8. Although this may be true, the discovery sought is not relevant to the UPP counterclaims pending before this Court; the claims involving Alcon's post-UPP conduct remained in the EDNY. Alcon's UPP was in effect between June 2013 through December 2016. Therefore, the relevant time period for discovery production is June 2013 through December 2016. The Court's finding is in-line with the Panel's order which, in separating out the UPP counterclaims for inclusion in the MDL, expressed concern that transferring the entire Alcon action would add significant trademark-related allegations, among other issues raised by the counterclaims, that could unduly prolong the MDL proceedings. A more tailored solution—transfer of only the two UPP-related counterclaims—would prevent the risk of inconsistent rulings concerning Alcon's UPPs, but not expand the MDL's current scope. TA doc. 72 at 2. See also id. at n. 2 (explaining that Judge Schlesinger certified classes of disposable-contact-lens retail purchasers for the period when the relevant UPP was in effect).[4] Lens.com does little to explain how the documents it seeks are relevant to UPP claims before this Court, besides stating that it has already received some post-2016 documents, MDL doc. 1268 at 7. Lens.com further argues these documents “may reasonably lead to discovery of additional relevant information about Alcon's continued boycott and continued anticompetitive behavior,” MDL doc. 1268 at 8 (emphasis added). But the “discovery rules do not permit [litigants] to go on a fishing expedition.” Porter v. Ray, 461 F.3d 1315 (11th Cir. 2006).[5] Alcon has persuasively outlined the involved and cumbersome effort it sought to produce documents in the MDL and this tag-along action: Before Alcon could fulfill its discovery obligations in the MDL, it took years for Alcon to meet and confer with Class Plaintiffs, decide on search terms and custodians; and collect, review, and produce the documents it has produced in the MDL (and this action). More than 4,596.96 GB (or 4.6 TB) of data were collected and more than 620,000 pages of documents were produced at a cost estimated in the many hundreds of thousands of dollars. While it is likely that fewer documents would be produced in response to Lens.com's new demand, there is every reason to believe that the new discovery Lens.com demands would be similarly onerous, costly and lengthy as Alcon's prior efforts .... MDL doc. 1276 at 17. *4 Lens.com requests materials “up through the present,” MDL docs. 1268-4 at 2-3, 1268-3 at 4; it is now 2022.[6] Requiring Alcon to produce approximately five years’ worth of additional materials that are not relevant to the discrete UPP claims pending in this Court would violate Rule 26’s requirement that the discovery sought be relevant and proportional to the needs of the case. The fact that Lens.com has not established that these materials are relevant to the UPP-claims before the Court is noteworthy because the Panel did not expand the scope of the litigation when it added only two claims to the then-existing MDL, instead of transferring the entire case. TA doc. 72 at 2. Motion to Compel MDL Expert Materials Lens.com also moves to compel Alcon to provide unredacted copies of expert reports and associated materials prepared during the MDL, MDL doc. 1267. Lens.com complains that beginning in February 2021, it has repeatedly requested Alcon provide this material, and alleges that Rule 26 of the Federal Rules of Civil Procedure and the Manual for Complex Litigation require this result, doc. 1267. Alcon disagrees, arguing that the motion should be denied on several grounds: (1) Lens.com failed to comply with local rule 3.01(g); (2) the motion is premature because Lens.com did not make a “proper” discovery demand; (3) the federal rules do not require the disclosure; and (4) Lens.com has not demonstrated that the expert disclosures are relevant to the allegations and proportional to the needs of the case. MDL doc. 1271 at 5-6. In a February 4, 2021 email, Lens.com requested Alcon produce “all expert discovery” that had taken place during the MDL, including: (1) disclosure information for each expert who has provided a report or testimony; (2) full, unredacted copies of all expert reports; (3) full, unredacted copies of all expert depositions; and (4) copies of all documents or other evidence that each expert relied upon in crafting a report or preparing for depositions. MDL doc. 1267-1 at 3. Alcon objected to the request for many of the same reasons as discussed above, see MDL doc. 1271 at 5, including that the disclosure is not required by the Federal Rules of Civil Procedure, and that Lens.com has not established the expert materials “are relevant to its allegations and proportional to the needs of the case,” MDL doc. 1271 at 6. Alcon further argues that it has yet to designate any experts used in the MDL to offer expert opinions here, so the motion is premature. Expert discovery is governed by Rule 26 of the Federal Rules of Civil Procedure. Rule 26(a)(2)(A) requires a party to disclose the identity of an expert it seeks to use “at the times and in the sequence that the court orders.” Fed. Rule Civ. P. 26(a)(2)(D). Similarly, Rule 26(a)(2)(B) sets forth what must be part of an expert disclosure, including the basis and reasoning of the expert opinion, the data or facts relied on, exhibits to be used, an expert's qualifications, a list of cases during which the expert testified, and a description of the payment received for the study and case testimony. Fed. R. Civ. P. 26(a)(2)(B). In the operative Case Management and Scheduling Order, Judge Schlesinger set October 21, 2022, as the deadline for plaintiff to serve opening Rule 26(a)(2) expert witness designations and disclosures, December 22, 2022, as the deadline for defendant to serve opposing Rule 26(a)(2) expert witness designations and disclosures, and January 20, 2023, and February 21, 2023, as deadlines for Reply and Sur-Reply Expert Witness Designations and Disclosures, MDL doc. 1345.[7] *5 Lens.com cites no rule or authority to the Court that would entitle it to MDL expert reports now in their entirety. And contrary to Lens.com's arguments, the mere existence of expert reports in the MDL does not grant it access. Nothing in the Local Rules or the Discovery Handbook of the Middle District of Florida require early or automatic disclosure here. See, e.g., Middle District Discovery Handbook (2021) at 12 (reiterating each party should comply with the requirements of Rule 26(a)(2) by identifying prospective experts and providing a complete expert report within the time provided by the case management and scheduling order). Lens.com cites Rule 26(b)(1) in support of its request, MDL doc. 1267 at 2. As set forth above, Rule 26(b)(1) provides, in part, that “[p]arties 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 ....” Lens.com has not established that the expert materials requested are relevant to its claims or defenses and or proportional to the needs of this action as Rule 26(b)(1) requires. Moreover, and as discussed above, experts have not yet been designated in this case; deadlines for designation have not yet passed. If Alcon designates its experts for the tag-along action, Lens.com will be entitled to those experts reports under the Rules. The Court has also reviewed the Manual for Complex Litigation identified by Lens.com, which explains that “it is advisable to order that ...(3) discovery already taken shall be available and usable in the tag-along cases. Consider other means of reducing duplicative discovery activity and expediting later trials by measures such as videotaping key depositions or testimony given in bellwether trials....”Manual for Complex Litigation, § 20.132 at 222-23. While the Manual is informative, nothing about the language identified by Lens.com requires the expert disclosures and associated documentation requested be available now, before the deadline for expert disclosures set for this tag-along matter. Further, Lens.com presents no evidence that it served a discovery demand under Rule 34 for the material that it now asks Alcon be compelled to produce.[8] Lens.com argues that it asked for the expert materials in a meet-and-confer letter and later through emails and phone calls. MDL docs. 1267 at 4-5; 1267-1; 1267-2. There is no evidence, however, that it served a Rule 34 request for production on Alcon as required by the Federal Rules of Civil Procedure. While the Court appreciates counsels’ attempts to confer, emails and phone calls are not permissible substitutes for a discovery request made under Rule 34. The Court does not opine on whether the expert reports from the MDL should ever be reproduced in this tag-along action, or find that Lens.com is not entitled to the expert materials produced in the MDL; but rather the Court finds the motion to compel is premature because experts have not yet been designated and, at this time, general disclosure is not required. It is ordered:[9] *6 1. Lens.com's Motion to Compel Alcon to Alcon to Produce Post-2016 Documents, MDL doc. 1268, is denied. 2. Lens.com's Motion to Compel Alcon to Produce MDL Expert Materials, MDL doc. 1267, is denied; Ordered in Jacksonville, Florida on June 3, 2022. Footnotes [1] For ease of review, the Court will cite two Jacksonville Division dockets in this order: The larger, MDL docket No. 3:15-md-2626-HES-LLL and the docket specific to the tag-along (TA) action, docket No. 3:19-cv-706-HES-LLL. Citations to MDL doc. _____ are to 15-md-2626. Citations to TA doc. ______ are to the 19-cv-706 docket. Only some entries cited were filed on both dockets. [2] Alcon amended the complaint on May 10, 2018. TA doc. 20. [3] On May 25, 2022, Judge Gershon also dismissed the three non-antitrust counterclaims. Id. at doc. 399 (Opinion & Order). [4] Nothing in this order precludes Lens.com's use of any post-December 2016 documents already in its possession. [5] Lens.com cites, doc. 1268 at 6, Coach, Inc. v. Visitors Flea Mkt. LLC, No. 6:11-cv-1905, 2013 WL 5770598, at *1 (M.D. Fla. Oct. 24, 2013) in support of its argument that Rule 26 relevancy is interpreted broadly “to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Id. (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S 340, 351 (1978)). While it is generally true that relevancy is broadly construed, Visitors Flea Market is distinguishable. In that case, plaintiffs in a trademark infringement action requested the defendants produce their tax returns because defendants allegedly profited by willfully ignoring counterfeit sales at a local flea market. The Court explained that under this theory of infringement, the tax returns may contain information showing a financial benefit from the flea market. The Court added that when a plaintiff asks for statutory damages in infringement cases, tax returns are considered relevant discovery by trial courts. Id. at * 3 (citations omitted). Further, the discrete request for four years of tax returns in Visitors Flea Market was proportional to the needs of the claims pending before the Court. [6] Alcon's production after the counterclaims were transferred to the MDL spanned the time period between January 1, 2013, to August 19, 2017, MDL doc. 1276 at 7. [7] When the motion at issue was made, MDL doc. 1271, the operative deadlines for Alcon's service of Opposing Rule 26(a)(2) expert disclosures was March 15, 2022.doc. 1264 at 1-2. These deadlines have since been modified by the Court. [8] Before a motion to compel discovery is filed, a party must make a request under Rule 34 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 37(a)(3)(B)(iv) (allowing a motion to compel where there is a failure to abide by a Rule 34 request). Rule 34(a)(1) allows a party to “serve on any other party a request within the scope of Rule 26(b): to produce and permit the requesting party ...to inspect, copy, test or sample.... any designated documents or electronically stored information” in the control of the responding party. Fed. Rule Civ. P. 34. [9] The parties are reminded of their obligation to confer in good faith before filing a motion in a civil action. Local Rule 3.01(g).