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Biomet Manufacturing Corp. v. Montana Thirteenth Judicial District Court, Yellowstone County

Supreme Court of Montana

October 23, 2018

BIOMET MANUFACTURING CORP, BIOMET ORTHOPEDICS, LLC, BIOMET U.S. RECONSTRUCTION, LLC, BIOMET, INC., Petitioners,
v.
MONTANA THIRTEENTH JUDICIAL DISTRICT COURT, YELLOWSTONE COUNTY, and THE HONORABLE MICHAEL G. MOSES, Respondents.

          ORDER

          Petitioners, Biomet, Inc., Biomet Reconstruction, LLC, Biomet Orthopedics, LLC, and Biomet Manufacturing Corp. (collectively, "Biomet"), seek a writ of supervisory control over the Thirteenth Judicial District Court in Cause No. DV-16-0492. Biomet contends that the District Court's June 4, 2018, and August 31, 2018 Orders compelling Biomet to produce privileged documents incorrectly construed Montana law regarding the timing of privilege logs and will lead to gross injustice if allowed to stand. At our invitation, both the District Court and counsel for Barbara Lee, Plaintiff in the underlying action, have responded.

         The underlying litigation is a products liability case that involves extensive discovery . and has engendered several discovery disputes. The District Court granted Lee's Second Motion to Compel in January 2018. This was followed by Lee's motion to deny Biomet's privilege objections. The District Court's June 4 Order granted that motion, concluding that Biomet did not assert the privilege with any kind of specificity in its initial discovery responses and did not provide a privilege log until eight months after its initial response to Lee's discovery request. Consequently, the court ruled that Biomet had waived the attorney-client privilege as to those documents. Its August 31 Order denied Biomet's motion to reconsider. Biomet urges extraordinary review of these Orders on the ground that they will cause immediate and significant harm to Biomet

by triggering the nationwide dissemination of thousands of sensitive, privileged communications between Biomet and its attorneys- communications made with the assurance of confidentiality necessary for Biomet's attorneys to render sound legal advice.

         The District Court explains in its response to the Petition that, contrary to Biomet's characterization, it did not impose a sanction for any discovery violations. The court points out that following the order to compel, Biomet began "rolling production" of documents. It provided a 1, 062-page privilege log, in which Biomet asserted an attorney-client privilege in general terms, apparently intended to apply to all of its responses, stating that "Defendant objects to the Interrogatories to the extent that they seek information or documents that are subject to the attorney-client privilege." The District Court explains that it rejected the privilege claim in part because proper assertion of privilege must be more specific than a generalized, boiler-plate objection. The court notes that under M. R. Civ. P. 26(b)(2), a party claiming privilege must expressly assert the claim and "describe the nature of the documents, communications, or things not produced or disclosed ~ and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim."

         As an independent ground for its ruling, the District Court explains that the privilege objection was untimely, coming eight months after Biomet's initial response to Lee's discovery requests. It points out that M. R. Civ. P. 34(b)(2)(A) provides a party to whom a discovery request is directed thirty (30) days in which to respond, including objections and responses to each item.

         Finally, the court emphasizes that it never intended its June 4, 2018 order to be a blanket waiver of the attorney-client privilege leading to the disclosure of confidential documents. Rather, the parties' previously entered Stipulated Protective Order provides a safety net for that privilege. Although that Protective Order did not refer expressly to privileged documents, the District Court stated in its order denying Biomet's motion to reconsider that the Protective Order should apply to any materials in which Biomet claimed privilege, and it advised the parties in open court that the court would review objections in the manner provided by the Protective Order. Rather than a blanket requirement of dissemination, "The intent of this Court was instead to identify and protect potentially privileged documents at the Protective Order level."

         This Court may exercise its supervisory power over all other courts on a case-by-case basis. M. R. App. P. 14(3). But supervisory control is an extraordinary remedy.

This extraordinary remedy can be invoked when the case involves purely legal questions and urgent or emergency factors make the normal appeal process inadequate. M. R. App. P. 14(3); .... The case must meet one of three additional criteria: (a) the other court is proceeding under a mistake of law and is causing a gross injustice; (b) constitutional issues of state-wide importance are involved; or (c) the other court has granted or denied a motion for substitution of a judge in a criminal case. M. R. App. P. 14(3)(a)-(c).

State v. Spady, 2015 MT 218, ¶ 11, 380 Mont. 179, 354 P.3d 590 (internal citation omitted).

         Having considered the arguments of the parties and the response of the District Court, we conclude that the requirements for supervisory control are not met. The District Court entered rulings on discovery matters that do not involve pure legal issues but ordinarily are reviewed for abuse of discretion. Based on the materials submitted, the Court is not convinced that the District Court's orders reflect a mistake of law that will cause a gross injustice. Any further disputes about dissemination of arguably privileged information should be presented to the trial court for resolution.

         IT IS THEREFORE ORDERED that the Petition for Writ of Supervisory Control is DENIED and DISMISSED.

         The Clerk is directed to provide copies of this Order to counsel for Petitioners, to the Yellowstone County Clerk of Court with instructions to provide copies to all counsel of record in Yellowstone ...


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