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Ferring Pharmaceuticals Inc. v. Braintree Laboratories, Inc.

United States District Court, D. Massachusetts

February 29, 2016

FERRING PHARMACEUTICALS INC., Plaintiff,
v.
BRAINTREE LABORATORIES, INC., Defendant.

MEMORANDUM & ORDER

NATHANIEL M. GORTON, UNITED STATES DISTRICT JUDGE

This case arises out of a dispute between pharmaceutical companies that promote and offer for sale competing bowel preparation drugs that are administered prior to colonoscopies. Plaintiff/counterclaim-defendant Ferring Pharmaceuticals Inc. ("Ferring") promotes and offers for sale a treatment under the name Prepopik. Defendant/counterclaim-plaintiff Braintree Laboratories, Inc. ("Braintree") promotes and offers for sale a treatment under the name Suprep.

Pending before the Court are a series of discovery motions that the parties filed in advance of the February 29, 2016 deadline for all discovery and depositions. Those motions are: 1) Ferring's appeal of, and objections to, certain rulings made by Magistrate Judge Marianne B. Bowler at the January 29, 2016 motion hearing, 2) Braintree's motion to affirm those rulings or, in the alternative, to allow it to reply to Ferring’s appeal and objections, and to extend the depositions deadline, 3) Braintree’s motion to supplement the record with respect to its motion to affirm, 4) Braintree’s motion for leave to reply to Ferring’s appeal and objections, 5) Braintree’s motion to extend the deadline for third-party Concentric Health Experience (“Concentric”) to produce documents, 6) Braintree’s amended motion to file a reply in support of its motion to affirm or, in the alternative, to allow it to reply to Ferring’s appeal and objections, and to extend the depositions deadline and 7) Braintree’s motion to file an exhibit to its proposed reply under seal.

For the reasons that follow, 1) Ferring’s appeal will be denied and its objections overruled, 2) Braintree’s motion to affirm and to extend the depositions deadline will be allowed, in part, and denied, in part, 3) Braintree’s motion to supplement the record will be denied as moot, 4) Braintree’s motion to file a reply will be denied as moot, 5) Braintree’s motion to extend the deadline for production by Concentric will be allowed, 6) Braintree’s amended motion to file a reply will be denied as moot and 7) Braintree’s motion to seal will be denied as moot.

I. Background

The early background and procedural history of this case are set forth in this Court’s prior Memorandum & Order addressing Ferring’s motion to dismiss Braintree’s amended counterclaim and Braintree’s first motion for summary judgment (Docket No. 95).

In August, 2015, this Court entered an order requiring the completion of all discovery and depositions by February 29, 2016. In its order, the Court notified the parties that it would not further extend the discovery deadlines because the case “ha[d] been unduly delayed and [wa]s bogged down in mid-discovery nearly 2 years after it was filed.”

On October 21, 2015, Magistrate Judge Bowler convened a motion hearing during which she allowed, in part, and denied, in part, 1) Ferring’s motion to compel certain discovery responses from Braintree and 2) Braintree’s motion to compel certain discovery responses from Ferring.

On December 3, 2015, Braintree filed its first motion to enforce the October 21, 2015 rulings (the “October, 2015 rulings”) and for an award of attorney’s fees.

On December 17, 2015, Magistrate Judge Bowler convened a second motion hearing during which she 1) allowed, in part, and denied, in part, Braintree’s first motion to enforce the October, 2015 rulings and 2) denied without prejudice Braintree’s motion for attorney’s fees.

On January 6, 2016, Braintree renewed its motion to enforce the October, 2015 rulings and to compel discovery. Ferring moved for a protective order two days later to preclude the discovery and deposition of certain matters. Ferring then filed a motion to compel Braintree to produce information on its sales of Suprep since 2010.

On January 29, 2016, Magistrate Judge Bowler convened a third motion hearing during which she 1) allowed, in part, and denied, in part, Braintree’s renewed motion to enforce the October, 2015 rulings, 2) denied Ferring’s motion for a protective order and 3) denied Ferring’s motion to compel the Suprep sales information.

On February 8, 2016, Ferring filed a notice of appeal of, and its objections to, Magistrate Bowler’s rulings at the January 29, 2016 hearing (“the January, 2016 rulings”).

On February 10, 2016, Braintree filed a motion to affirm the January, 2016 rulings or, in the alternative, to file a reply to Ferring’s appeal and objections. In that motion, Braintree also sought an extension of the depositions deadline. Shortly thereafter, Braintree moved to supplement the record with respect to that motion. Braintree next moved for leave to reply to Ferring’s opposition to its motion to affirm the disputed January, 2016 rulings.

On February 25, 2016, Braintree moved for an extension of time for third-party Concentric to produce documents. Braintree then filed an amended motion for leave to file a reply and a separate motion to file an accompanying exhibit under seal.

II. Review of the January, 2016 rulings by Magistrate Judge Bowler

If a party timely objects to the non-dispositive rulings of a magistrate judge on pretrial matters, the district judge must modify or set aside any part of the disputed order that is “clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A). As another session of this Court has noted,

[a] respect for this standard is important, given the pivotal role that magistrate judges play in overseeing the conduct of the sort of complex pretrial discovery typified by this case.

Gargiulo v. Baystate Health Inc., 279 F.R.D. 62, 64 (D. Mass. 2012).

The “clearly erroneous” prong requires the district judge to accept the factual findings and conclusions of the magistrate judge unless, after reviewing the entire record, the district judge has a “strong, unyielding belief that a mistake has been made.” Green v. Cosby, 2016 WL 554816, at *1 (D. Mass. Feb. 11, 2016)(citing Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999)).

Under the “contrary to law” requirement, the district judge reviews pure questions of law de novo, see PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010), and factual findings for clear error, Phinney, 199 F.3d at 4. Mixed questions of law and fact invoke a sliding scale of review pursuant to which

[t]he more fact intensive the question, the more deferential the level of review (though never more deferential than the clear error standard); the more law intensive the question, the less deferential the level of review.

In re IDC Clambakes, Inc., 727 F.3d 58, 64 (1st Cir. 2013) (internal quotation marks omitted).

B. Application

1. The January, 2016 rulings

a. Braintree’s renewed motion to enforce the October, 2015 rulings and to compel discovery

On January 6, 2016, Braintree filed a renewed motion to enforce the October, 2015 rulings and to compel discovery.

In light of Ferring’s representation on February 8, 2016 that it 1) already performed a search of the keywords listed in paragraphs 27 and 28 of Alissa Digman’s declaration, without using the qualifiers in the parentheticals, on all emails belonging to all of its salespeople and 2) was in the process of producing the resulting responsive documents, the Court notes that the only appealable issue is whether Ferring must produce documents from that search that fall within the January to October, 2014 period.

In its motion, Braintree sought to compel Ferring to produce responsive documents from the January to October, 2014 period because, it claimed, 1) Magistrate Judge Bowler had already found those documents relevant to the case and discoverable at the October 21, 2015 hearing when the parties discussed that exact issue and 2) there is no new, cognizable ground upon which Ferring could now object to the production of such documents.

Ferring responded that, because its allegedly false advertising ceased in 2013, documents from 2014 are not relevant to Braintree’s claim of false advertising. Ferring also faulted Braintree for requesting those documents too late in the discovery process and that “there [wa]s simply no way” for Ferring to produce those documents by the discovery deadline of February 29, 2016. It averred that the cost of gathering, reviewing and producing the information would be substantial and “completely disproportionate to the needs of the case” given the ...


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