BIOMET MANUFACTURING CORP, BIOMET ORTHOPEDICS, LLC, BIOMET U.S. RECONSTRUCTION, LLC, BIOMET, INC., Petitioners,
MONTANA THIRTEENTH JUDICIAL DISTRICT COURT, YELLOWSTONE COUNTY, and THE HONORABLE MICHAEL G. MOSES, Respondents.
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.
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.
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."
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.
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."
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).
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.
THEREFORE ORDERED that the Petition for Writ of Supervisory
Control is DENIED and DISMISSED.
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 ...