Okay — So This May Take A Minute… Smile.
August 9, 2017

I still think a settlement is in the offing, if for no reason other than it is costing German Merck over $2 million every six months, or over $4 million a year, just to comply with document production requests, in the US.

But as this contentious 11 page letter (jointly filed yesterday, at the New Jersey District Court’s PACER window) — outlining both sides’ positions — indicates, the document delivery portion of the discovery process alone may drag into next year. And US Merck rightly, I think, argues that this gives the German Merck an unfair advantage in other courts, around the globe. Courts where the US Merck is being sued, and must itself turn over all its responsive documents.

In any event, this is a nice long period, well into 2018 — during which the two sides’ lawyers will be in nearly daily contact, and settlement discussions, and agreement drafting could be occurring (in secret) on a parallel time-track. We shall see — but now I don’t expect a Q4 2017 agreed settlement, in light of this turgid letter:

. . . .Defendant has gone to extraordinary lengths to complete its production of documents, but has been unable to meet the current deadline given (1) the hundreds of thousands of documents that Defendant must review to respond to Plaintiffs’ very broad document requests, and (2) the onerous special procedures and requirements which Defendant must observe to comply with its obligations under EU data protection laws. Defendant has engaged over one hundred document reviewers in Europe (plus additional project managers) to complete the review and, as required by EU data protection laws, to redact all personally identifiable information. Unlike reviewing only for responsiveness and potential privilege issues, each reviewer must carefully review every word of every document to identify personal data and then apply the redactions. The process is so timeconsuming that, on average, a single reviewer redacts only 6-8 documents per hour (which was confirmed by a member of the U.S. legal team who flew to Germany to personally perform redactions to better understand the process and the reasons it moves so slowly). Defendant has already expended over $2 million in costs on the review and redactions, a figure likely to double — if not triple — before production is complete. . . .

EU data protection laws require that all of these documents be painstakingly reviewed and redacted to remove all personally identifiable information. There is a limited exception for the personal data of certain individuals, such as the custodians, but even in those cases the documents generally contain names or other personally identifiable information of other individuals that must be redacted. This procedure is set out in the Protective Order, negotiated by the parties and entered by the Court on March 6, 2017. See dkt. entry no. 66. Counsel has met and conferred extensively about the challenges imposed by the EU data protection laws and possible solutions. For example, Defendant has offered to produce the documents in un-redacted form for review in Europe by lawyers in Plaintiffs’ counsel’s European offices. Such a solution would save Defendant millions of dollars and would shave several months off the requested extension. But, unfortunately, the parties have been unable to agree on mutually acceptable parameters for this proposal or others that have been explored. . . .

Now you know — and I can only imagine how exacting. . . those (cough!) German reviewers are being in the faithful discharge of their duties. [That is intended as a cultural compliment, not an insult, BTW.]

And, I am smiling just the same — onward, as an eclipse celebration with my now-grown young ones, and their significant others, along with a road trip gets well organized, here. . . beaming, toward the 21st, in fact, and points southerly. . . .

नमस्ते

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