Medical Source, Inc., et al. (Lawyers Weekly No. 09-053-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2016-1853 BLS 1 MEDICAL SOURCE, INC. et al vs. PERKINELMER HEALTH SCIENCES, INC. ORDER ON MOTIONS REGARDING DISCOVERY FROM A NON-PARTY In this commercial dispute regarding a product sold by PerkinElmer to plaintiffs, discovery is sought by plaintiffs from a non-party, Virscidian, Inc. Plaintiffs move for the issuance of a letter rogatory to compel the production of documents from, and the appearance for deposition of, Virscidian, a company located in North Carolina (Paper No. 36). In response, Virscidian moves for a protective order to limit the scope of discovery and to require that plaintiffs bear the cost of the review and production of responsive documents (Paper No. 37). At the hearing of these motions on November 8, 2017, I asked the parties to confer, again, to limit the areas of dispute. I pointed out that plaintiffs are entitled to some discovery as requested but that plaintiffs “must take reasonable steps to avoid imposing undue burden or expense” on Virscidian. See, Mass. R. Civ. P. 45 (b). Pursuant to Rule 45 (b), I indicated that denial of Virscidian’s motion for protective order would be conditioned “upon the advancement [by plaintiffs] of the reasonable cost of producing the documents . . . .” Id. I then ordered the parties to submit a chart showing plaintiffs’ revised requests for documents, Virscidian’s objections, and Verscidian’s estimate of the cost of responding to the narrowed requests. The 1 requested chart was filed on November 20, 2017, as a Joint Supplemental Submission (Paper No. 43), . Plaintiffs allege that PerkinElmer’s Time-of-Flight Mass Spectrometer (“TOF”), as purchased by them, is defective. Virscidian developed a software component of the TOF called “Solo.” Plaintiffs believe that Virscidian is in possession of documents that directly relate to alleged flaws in the software component. Plaintiffs allege that the software issues are “at the heart of” the defective TOFs. Plaintiffs requested approval of a subpoena for the production of documents from Virscidian responsive to 14 enumerated requests. In addition, plaintiffs requested approval of a subpoena to Virscidian to produce a witness, designated by the corporation, to testify as to 18 described subject areas. Virscidian’s motion for a protective order, supported by an affidavit from its founder and CEO, Joseph D. Simpkins, points out that Virscidian is a small company with only four, fulltime, employees in addition to Mr. Simpkins. Mr. Simpkins estimates that it would take his employees approximately 600 hours to find, review and produce documents responsive to the requests. Such an effort would substantially interfere with Virscidian’s ongoing business. “Even if we outsourced the project, I would still need to be substantially involved to oversee capture of the .pst files, […]