In this litigation involving implantable power-injectable port products, Judge Fallon addressed several motions to compel, primarily brought by the Defendant. Judge Fallon first ruled that Plaintiff Bard need not produce “documentation of Bard’s Vortex power injection testing” because Bard had already produced all documents regarding testing of Vortex port products and the documents sought do not exist. Because Judge Fallon found the evidence cited “fails to affirmatively establish that Bard possesses [such] documentation,” “Bard cannot be compelled to produce that which it does not have [but to] the extent that Bard’s representations prove to be inaccurate in the future, the court may take appropriate action at that time.” C.R. Bard, Inc., et al. v. Angiodynamics, Inc., C.A. No. 15-218-SLR-SRF, Memo. Or. at 4-5 (D. Del. July 31, 2017). Based on similar reasoning, Judge Fallon denied in part a request to produce documents related to a merger between Bard and a third party that Bard represented never existed: Her Honor granted the request with respect to the merger agreement and documents exchanged during merger negotiations, but denied it with respect to documents which were subject to the common interest privilege between the parties to the merger. Id. at 11-13.
Judge Fallon next addressed a motion to compel Bard to produce documents and prepare a 30(b)(6) witness regarding an interference proceeding over whether claims in a non-asserted patent could properly claim priority to an earlier application. The defendant argued that this application was relevant both because it was incorporated by reference in the patents-in-suit and because the plaintiff had relied on the application during claim construction. Judge Fallon denied the request to produce documents because Bard had “consistently represented that it produced all non-privileged documents responsive” to that request and because it was “not apparent from the current record that a privilege log [which Bard did not produce] would advance AngioDynamics’ discovery efforts on this subject in a manner proportional to the needs of the case.” Judge Fallon granted, however, the request for a 30(b)(6) witness on this topic. Id. at 5-9.
Judge Fallon also denied a motion to compel Bard to produce nondisclosure agreements related to “pre-launch market survey activities for Bard’s PowerPort products” because Bard had already produced some such NDAs, was continuing to search for similar NDAs, and had not suggested that it planned to withhold the requested NDAs. Id. at 5. And Her Honor granted a motion to compel Bard to produce foreign regulatory filings “including applications and correspondence regarding the structure, function, and operation of Bard’s products to rebut the testimony of certain Bard witnesses who allegedly attempted to disavow the accuracy of Bard’s FDA submissions.” Id. at 9-11.