Kimberly-Clark Corp. v. Tyco Healthcare Retail Group

Kimberly-Clark Corp. v. Tyco Healthcare Retail Group

Opinion

ORDER

Discovery disputes have resulted in the filing of some eight discovery motions, several of which are not yet fully briefed. This order addresses three of them.

1. Motion for Sanctions [150]

This motion is based on Kimberly-Clark's (K-C) frustration with what it views as Tyco's intransigence and lack of preparedness. A particular sticking point involves a printout, produced by Tyco in discovery, of what was evidently a presentation Tyco's sales people made to Walgreens [*2]  drug stores. Although K-C evidently views this presentation as a sort of smoking gun, its basis for doing so remains unclear. In any event, the document refers to sanitary napkins having a "multi-density core," and because the core density is of crucial import in this case K-C wants to know more particularly what that phrase meant to Tyco. Its efforts to learn more about the Walgreens presentation have not been particularly fruitful, however. It asserts that Tyco's Rule 30(b)(6) witness, Joe Howard, knew next to nothing about the topic he was designated to speak to. It also asserts that Tyco has failed to adequately explain who created the document in the first place and refuses to acknowledge that the document refers to multi-density core napkins.

In response, Tyco suggests that the dispute is premature and proposes to let Mr. Howard testify again, presumably after undertaking further inquiry into the meaning of the term "multi-density core" and information about the source of the document. K-C objects that these eleventh hour proposals should not be tolerated, but in the context of the massive amount of discovery this case has generated, Tyco's failings do not seem grounds for sanctions.  [*3]  Moreover, the document at issue seems more akin to a marketing presentation than an R&D memorandum whose conclusions might speak more concretely about the actual density of the products at issue. Thus, the relief sought in the proposed order (Flaherty Decl., Ex. 9) will not be granted. Instead, Tyco is directed to make its Rule 30(b)(6) witness available again to meaningfully discuss the Walgreens document and provide, to the extent possible, the information K-C seeks.

Another dispute arises over Tyco's laches defense. K-C suggests that Tyco should be sanctioned for its Rule 30(b)(6) witness' inability to express any meaningful prejudice it suffered as a result of K-C's delay in filing this lawsuit. The witness similarly was unable to explain dates of sale and testify about research and development. Tyco protests that its witnesses should not be required to testify about what essentially are legal conclusions, i.e., how it was prejudiced, for example. Although the topics at issue certainly involve legal conclusions, that is true of nearly every topic open to discovery. It does not require legal conclusions for a corporate designee to explain the facts underlying a claim of laches, [*4]  and it is not for the deponent to render legal opinions as to laches or any other legal or equitable claim. Because Tyco offers no other explanation for its failure to meaningfully provide discovery on these issues, K-C's requested relief will be granted in part. In particular, Tyco will be prohibited from introducing evidence that it suffered any prejudice from K-C's delay in bringing this lawsuit apart from (1) Tyco's inability to locate records concerning shipments of Tyco's channeled maxis prior to October 1999, and (2) any other prejudice testified to by Donald Sheldon, its 30(b)(6) designee.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.