process matters it matters when you are a pharmaceutical company bring a drug to market and it matters when you are a federal magistrate judge that is dealing with a complex pharmaceutical to case and the process in this case particularly discovery process went drastically off the rails let's start with the will twenty six burden issue in producing plaintiff's discovery quest none at all the measure a judge had no way of knowing who engine's attorneys asked about formulating the burden when they presented it to the magistrate judge we have no idea who they are we have no idea what their we've no idea of their qualifications are we have no idea how they arrived at their analysis in the magistrate judge acknowledged this herself in the  and that's the most or warming thing here is that she acknowledged that in her order she also acknowledged that when the one engine and defendants brought forth an analysis of what are called these queries that they only came off with one thought came up with ninety four adverse events and the magistrate judge again alarmingly so put in that march twenty eighth order that she had no idea how defendants ran their analysis and that has been par for the course council what's what your specific legal argument here as to the error made by the district court that we should that we are that you  a representation of the court i've scoured as many cases as i can i've only found one case that supports their position and it's a case they cite and their response brief it's another ambition case as are for the middle district of florida and we would posit that that's not even the law in the eleventh circuit let alone in this circuit and later general dynamics because again general dynamics calls for when you look at undue burden that particular dynamics particular that with a protective order but the undue burden an govern the analysis here but if you look at more recent district or cases coming out of the circuit region liberal or which is a case out of the western district of missouri there the district judge held that in a complex class action case involving i believe it was one of the insurance companies and it dealt with their payouts on labor depreciation when when cars were damaged the district judge said when you're running in analysis of a complex database i need to know who is running demonstration a fact and that's exactly what general dynamics says again a precedent in this court we need a demonstration of fact counsel where were you going with this exercise is it you're talking about now was there no expert testimony because there was no discovery that the expert that we were going to put forward could analyze that you were going to put forward absolutely and this was the postum challenges result the offense this is going to be your your expert that this product was the cause of your client's problem when the  magistrate judge was going to just cut off discovery right then and there and say no this is it this is all discovery you're entitled to i'm not going to give you internal correspondence i'm not going to give you any information about the canadian monograph which has n d s as an adverse is terms that would be used as a standardized measure query depending on what those were the financier may not have had to you know that me not have been in a searchable database at that time the thing that would have been searchable is what the a had and that's what we have access to but we don't have access to every single adverse event that may have been related to m d s again we dispute as to what those terms mean and it's interesting because below for the magistrate judge if you look at the defendant's burden memorandum it was a list of seven hundred terms associated with m d s those are all preferred terms and know what the magistrate gave us in the march twenty eighth order one preferred term m d s the magistrate judge gave us less information than the defendants proffered it's it's almost unheard of when you  you had an expert and the expert was based on this information provided i just read yours that really well at that juncture in time when we actually identified the expert that is the best below can do because there was no information they could be and again these are back to live x words who's going to be our intended expert that she could not analyze there was nothing there because the magistrate judge had so hampered the amount of discovery in this case and i want to make that connection because it directly translates into the district judge's order granting summary judgment and saying there there's no expert there's no expert testimony we have to grant summary judgment but you have to trace it back and that's the error here it all relates back to march twenty eighth and what is it that you wanted to do had the magistrate not made this mistake we would have done several things  who are these people that ran this analysis from the defendants and maybe depose them maybe find out who they are why they believe the terms that we were asking for are not relevant an example would be a  very concrete one is dr peter greenberg an expert that they relied heavily on in their notice of discovery issues and there was a december ninth one proportionality hearing and at that hearing both experts were supposed to appear telephonically ours did dr little of x she was our intended expert counsel were you going to address the sections issue yes i would like to do that if you're tired you're into could i ask one question on rule twenty well what about the district court or the magistrate's statement in the march twenty eighth order that where she says even without the defendants providing quantifiable evidence a burden based on common sense and the search conducted by plaintiff's counsel during the hearing the court finds the burden of discovery demands on reasonable was that's why isn't that sufficient  justify a limitation on the discovery even with that without any evidence for that for two reasons it's called the number one if you look at several more recent cases medicine over is one there and that's and of i believe the district in proof of burden well i thought she was saying your man did a search right there in the courtroom but i say that that's your photos and show that breath remember who are really asking for sure and she combined that with search here is the promise of it here's why so many results came into play here's what actually would have happened but the purpose in the utility of that demonstration was that while the fans were saying this will cost millions of dollars to run searches and it will you know and then we have on the other hand unverified assertions of fact from counsel that this will cost millions of dollars it'll take it'll take months it'll take all these resources and we have no proof ok thank you for the answer you might want to address  defendants improperly inserted and also violates will seven of the federal rules when improperly inserted the request for sanctions in their response to the objections it did not  counsel below the opportunity to respond and he had very limited ways of trying to respond to that end of this court's on presidents at least when it comes to twenty nine hundred twenty seven counsel who is potentially going to be sanctioned must have deposition there were ninety nine objections of the ones that were arguing objections there were twenty eight truck constable one twenty he prevailed on twenty of those objections how can you counsel when he wins and prevails on many dejection as there were interposed that the objection for trying to defend himself on a station's motion truck counsel should have that opportunity afforded to him to come forward with a legitimate response to the sanctions and that was that's what was done in this case and how do i know that because the magistrate judge the legal error at the bottom of this and judge beam your question about where are we going with this exercise the cases in this court that have reversed a district court or a magistrate judge for a gross abuse of discretion resulting in fundamental unfairness which is the discovery reversal standard or reverse the sanctions order for abuse of discretion those cases are in circumstances where a district judge either didn't do their homework or didn't justify what she was doing or flew off the handle and imposed some kind of the nuclear draconian discovery sanction this court that the magistrate judge and the district court exhibited vast reserves of patience with this case and i would point you to among other things that the full transcript of the discovery hearing which lasted for several hours in front of magistrate judge  as wart the full transcript is in your joint appendix and you can see that judge of art is very patient as she works through the question of how these broad discovery requests actually bear on the general question causation of causation that's in front of the court she describes the plaintiff's discovery request like this and i'm going to quote this every document the defendants or any of its predecessors ha or can access for any person who ingested embroil and reported a symptom or impact on that person's red blood cells white blood cells platelets or any precursor cells for those blood lines that is her description of what was sought and during that three hour discovery hearing she sought to figure out why those broad descriptions were relevant to general causation which was you remember the only issue in front of the court at that time and you turn to the order denying of her discovery order and you'll note at no one that this magistrate judge x who actually suggests that perhaps trial counsel should consider affiliating nebraska counsel with him giving him the signal that she is being patient with him but perhaps received seventy over seventy thousand pages of information from amgen so to the extent that you are coming away with the impression that amgen turned over nothing that is false we turned over seventy thousand pages of documents including among other things the entire what's called the biologic license application which contains clinical trial reports all of the reports that went into the study of embroil we also turned over i ninja mentioned that the judge only ordered us to turn over at this adverse event reports for m d s that is not accurate the judge actually ordered us to turn over and you can read this in her bullet point a discovery order adverse event reports and the stood and the circumstances the narratives underlying those reports of fourteen different terms not the two hundred some odd terms that the plaintiff had sought but fourteen terms that she decided bore on the m d s question so that is where plaintiffs should have found evidence of causation and to be frank the plaintive as as magistrate judge who art and the district judge pointed out the plaintiff in these cases normally has an expert on causation when the plaintiff files a lawsuit and here he did not he admitted it and this the lower court gave him a significant amount of latitude to develop that the only thing he had coming into this case was the contention that mr wine in german changed here which was the canadian monograph that was the sole representation that permitted this case to go forward on the question of general causation was your client the only  supplier of embryo was it a drug your client and so they would have the exclusive amount of information that was available on it my wiest pfizer on these broad aspects of the case but the as to embroil again what amgen turned over was tens of thousands of pages of documents bearing on the general causation question and that actually leads me to the point judge being that on the question that us mr wine injure where we going with this exercise the sciri of plaintiff's case and you heard it again in opening argument is we didn't find any evidence of general causation so we should have been entitled to keep looking to find evidence of general causation as the district court and the magistrate judge both pointed out that is not the way it works and for the that the plaintiff was cut off on discovery i would reiterate what the district court said in its summary judgment ruling which is the district court and the magistrate judge gave the plaintiffs three years to put together a case on causation on general causation and to find an expert on general causation the eggs spert that they found a judge being near correct was one expert and it was a john doe pfizer employee who had made a note in a file the representation that linda levesque was available as an expert that was made today was not in the expert disclosure that was filed below so at the point where over three years in the district court confronted a summary judgment motion that did exactly what the district court warrant the plaintiff in at the outset which was if you don't have an expert on general causation your case cannot go forward the plaintiff did not have an expert on general causation and the district court correctly concluded that her case could not go forward what about this legal question whether the defendant has to produce evidence are you saying that all statements of counsel subject to rule on are sufficient and can be given weight by the district court are you saying that there was no evidence necessary think it's more than that judge call it i think part of it is answered by the question that you asked which is the district court explained when it reviewed this this ruling the tribe the magistrate judge was not making these discovery determinations in a vacuum she knew what the scope of the requests was and she described the scope of the requests that's what i read to you earlier she understood the magnitude of those requests she understood from that demonstration that went awry in the in the magistrate judge is hearing the magnitude in the scope of those requests and she also understood from the representations of counsel that yes were made in a pleading that the request bore on hundreds of thousands of study subjects over the last twenty years for studies pertaining to i think it i think i would answer the question this way that's that's probably a marginal case but here you don't need to find out i think that that is the law what you need to find is i would  the district court found which is that the district court a magistrate judge conducted a holistic inquiry she looked at those representations which by the way were not boilerplate did not say this is burdensome this or ultimately what the magistrate judge concluded and she she chided both sides for this and i will take medicine on that she explains that it is the obligation collectively of both parties in the court to try to seek to proportional  discovery she wasn't receiving that contribution from the plaintiff and she chided the defendants for not putting forward their evidence in support of the burton argument however what she went on to find is based on my common sense as you said and the demonstration at the hearing that she would narrow the disproportionate discovery that plaintiff's argument here appears to be getting kind of those kind of how the court used the the the demonstration as a basis for its decision the demonstrations understand it was using the computer in the courtroom to to do some research how did that play into the cords ultimate decision the court mentioned that search in its decision this was the demonstration that were plaintiffs council ran twenty terms and produced a number of adverse event reports that numbering in the thousands is that the suggestion that that was actually kind of a wrong result is i think cold comfort for the idea that presumably when those terms get run and when am gen is asked to pull tens of thousands of files presumably from all of the terms that they wanted run from not just one central location but many  maybe some of those turn out to be duplicates but that's cold comfort so yes she did rely on the demonstration that was conducted at the court hearing but she also relied on her common sense and she was entitled to do that because the opposite understand what the pla argument here is because there weren't affidavits i get all my discovery and that can't possibly be the law the district court observed correctly that the magistrate judge always has the authority when she is not receiving the collective contribution that she wants from the parties before her always has the authority to proportionally narrow discovery and the idea that she cut off discovery for good and for all time is also not true the district court at the hearing the district court subsequently the district court in its discovery order made clear that if more discovery was required more discovery would be had will will a plaintiff told the magistrate apparently that based on the information provided i assume that that was provided by discovery of the drug profile embroil and i assume that he was pointing that out to go beyond that in discovery in some way to nail that down to see if that were true and if that employees musing that something was related to something about you could use that information to move beyond it to do what you need to do right know i respect feel i need to resist that the idea of moving beyond that at this stage remember is that disclosure was made three years into this case i see seventy some thousand pages later and the fact that that plaintiff received so much latitude to conduct discovery to depose a witness to look at those documents and to gather judgments to your earlier question public records that were available to him and at the end of those three years he had nothing and the district court correctly conceded that i see if i can speak briefly to sanctions the sanctions issue i think is equally clear it's for abuse of discretion there was no draconian sanction awarded here there was no nuclear sanction awarded here there was in fact a deep haircut given to the sanctions that were requested of the magistrate judge from about one hundred forty thousand dollars down to twenty five thousand six hundred the district judge notably reviewed that sanctions respects we respectfully suggest that that is correct as well if there are no questions on sanctions on my time what about his point that on the one that was raised in an objection and there was a procedural flaw in the allow him to respond properly to two observations your honor the the first is the the the notion that the plaintiff counsel felt himself precluded from filing something is belied by the rest of the record i would submit but more importantly the way to answer a request for sanctions would be to file a or two to respond to it in some other fashion not to move to strike the entire thing it just was generated what would you normally there be a motion for sanctions right and there would be a response to the motion but here i gather there was no motion there was a statement in the objection the you would move for leave i think that would be the procedurally proper thing to do rather than move to strike a request because of course as the district judge pointed out you don't move to strike parts of pleadings you move to strike pleadings but more importantly mr wine and your made the sanction in that opposition the defendants were ordered to submit a request for sanctions that laid out exactly what they were seeking exactly how much it had cost them and exactly why sanctions were required he responded to that only because all you need to do on a point totally is assert a plausible claim where where is the case law and defendants have yet to cite it that says before you follow your claim you must have an expert witness jury that this isn't a motion to dismiss cases this is a summary judgment right but would counsel said in her and her time was that we had no expert in coming to this case and we were supposed to that correct but that would be incorrect we did have an expert that believed that these claims were plausible and they were plausible because if you look at the canadian monograph and if you look at judge being what you brought up if you look at what the pfizer employee said there is a connection we made the representation we would have rather gone with someone that was our own expert not who this pfizer person was particularly when we never had a chance to depose this person and i just on the quickly on the on the on the sanctions issue on the motion to strike i would