IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS

EARPLUG PRODUCTS LIABILITY

LITIGATION, Case No. 3:19-md-2885

 

 Judge M. Casey Rodgers

 Magistrate Judge Gary R. Jones 

This Document Relates to:

Lloyd Baker

Case No. 7:20-cv-39

Stephen Hacker

Case No. 7:20-cv-131 

______________________________/

ORDER

On November 2, 2020, the Court conducted a telephone hearing to 

address two outstanding motions by Defendants in these MDL Bellwether 

Plaintiffs’ cases: (1) Defendants’ Motion to Compel Documents from 

Plaintiff Lloyd Baker and Ms. Cindy Baker, Case No. 7:20-cv-39-MCR-GRJ 

(N.D. Fla.), ECF No. 20; (2) Defendants’ Motion to Compel Supplemental 

Production from Plaintiff Stephen Hacker, Case No. 7:20-cv-131-MCR-GRJ 

(N.D. Fla.), ECF No. 24. Prior to the hearing, Plaintiffs Baker and Hacker

filed responses to Defendants’ respective motions. See Case No. 7:20-cv39-MCR-GRJ (N.D. Fla.), ECF No. 29 (Plaintiff Baker’s response); Case 

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No. 7:20-cv-131-MCR-GRJ (N.D. Fla.), ECF No. 28 (Plaintiff Hacker’s 

response).

For the reasons discussed on the record (which are fully incorporated 

herein) and those explained below, Defendants’ Motion to Compel 

Documents from Plaintiff Baker and Ms. Baker is due to be GRANTED IN 

PART and DENIED IN PART, and Defendants’ Motion to Compel 

Supplemental Production from Plaintiff Hacker is due to be GRANTED. 

This order is a non-exhaustive recitation of the arguments made by the 

parties, as well as the Court’s reasoning.

I. BACKGROUND

This multidistrict litigation is a products liability action concerned with 

whether Defendants were negligent in their design, testing, and labeling of 

the nonlinear dual-ended Combat Arms Earplug Version 2 (the “CAEv2”). 

Plaintiffs are servicemembers, veterans, and civilians, asserting state law 

claims for negligence and strict products liability based on design defect 

and failure-to-warn theories, as well as warranty, misrepresentation, fraud, 

gross negligence, negligence per se, and consumer-protection claims. 

They are seeking damages for hearing loss, tinnitus, and related injuries 

caused by their use of the CAEv2.

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The parties engaged in case-specific discovery related to the 

Bellwether Plaintiffs’ claims and Defendants’ defenses. To facilitate the 

Trial Group A Bellwether Plaintiffs’ responses to Defendants’ March 12, 

2020, Requests for Production, the parties negotiated and proposed the 

entry of Pretrial Order No. 42. MDL ECF No. 1171.1 Pretrial Order No. 42 

governed the “Bellwether Plaintiffs’ identification, collection, and production 

of relevant and responsive electronically stored information (‘ESI’).” Id. at 

1. Bellwether Plaintiffs were directed to conduct a “reasonable 

investigation” of, among other ESI sources, “any email accounts used by 

[him]—whether stored locally or in a cloud-based system (e.g., Gmail, 

Yahoo, and Hotmail).” Id. at 2. This investigation including running specific 

such terms, such as “hear,” “hearing,” “ear,” and “ears.” Id. at 4. Pretrial 

Order No. 42 also set forth the processes for linear review, production of 

ESI, and certification of compliance. Id. at 4–6. The Trial Group A 

Bellwether Plaintiffs’ deadline for productions and certifications was July 8, 

2020. Id. at 6.

Relevant here, Pretrial Order No. 42 does not address or require 

supplementation of ESI production and certification consistent with the 

1 For ease of reference, citations to the docket in the multidistrict litigation (Case No. 3:19-

md-2885-MCR-GRJ (N.D. Fla.)) are stated as “MDL ECF No. __.”

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procedure outlined therein. Indeed, the only mention of supplementation is 

in a footnote, which states: “Pursuant to the requirements of Federal Rule 

[of Civil Procedure] 26(e) which requires a party to supplement its 

discovery responses if it ‘learns that in some material respect the 

disclosure or response is incomplete or incorrect’; Plaintiffs’ maintain the 

right to supplement[] the certification if new information comes to light.” Id.

at 5 n.2.

A party who responds to a request for production, or otherwise makes 

a disclosure under Federal Rule of Civil Procedure 26(a), is required to 

timely supplement its disclosure or response “if the party learns that in 

some material respect the disclosure or response is incomplete or 

incorrect, and if the additional or corrective information has not otherwise 

been made known to the other parties during the discovery process or in 

writing[.]” Fed. R. Civ. P. 26(e)(1)(A).

II. MOTION TO COMPEL AS TO PLAINTIFF BAKER AND MS. BAKER

On July 8, 2020, Plaintiff Baker produced to Defendants a collection 

of ESI documents. Case No. 7:20-cv-39-MCR-GRJ, ECF No. 20 at 3. The 

following month, on August 20, 2020, Defendants served on Plaintiff Baker 

a “Second Set of Requests for Production[,]” which demanded production 

of “[a]ll communications or other [d]ocuments created, generated, or 

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received since [Pretrial Order No.] 42 and which are responsive to the 

foregoing requests for production in this case.” ECF No. 20-1 at 7. 

Additionally, on September 3, 2020, Defendants served a subpoena duces 

tecum on Ms. Baker requesting the production of electronic discovery 

relevant to this litigation, such as communications through text messaging, 

iMessage, and Facebook Messenger. ECF No. 20-2. Ms. Baker, through 

counsel, informed Defendants she did not have responsive documents, and 

Defendants did not receive any additional ESI from Plaintiff Baker. ECF 

No. 20-3. On September 15, 2020, however, Defendants learned through 

third-party discovery from two individuals (Brian Dimoff and Jonathan 

Romero) that Plaintiff Baker continued to have communications related to 

his lawsuit and claims that were not produced. ECF No. 20 at 4.

When Defendants sent Plaintiff Baker and Ms. Baker a follow-up 

request on October 5, 2020, ECF No. 20-7, Plaintiff Baker objected on the 

bases that “ESI production was not outlined under [Pretrial Order No.] 42 

and Defendants have made no effort to discuss the need for 

supplementation prior to [their] October 5, 2020, letter[,]” ECF No. 20-8. 

The instant motion to compel followed, in which Defendants ask the Court 

to compel Plaintiff Baker “to produce additional ESI created, generated, or 

received on or after July 8, 2020, which are responsive to Defendants’ First 

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Set of Requests for Production.” ECF No. 20 at 6. Defendants also 

request the Court compel Ms. Baker to collect and produce “all nonprivileged, responsive documents that she failed to produce in the first 

instance.” Id. at 6.

Plaintiff Baker responds that any order compelling supplementation 

under Federal Rule of Civil Procedure 26(e) is improper because he 

complied with the collection and certification protocol set forth in Pretrial 

Order No. 42, Defendants do not state with particularity what discovery he 

has failed to produce in response to their discovery requests, Defendants 

already have the materials sought, and Defendants’ request is not 

proportional to the needs of this case. ECF No. 29 at 12–16. Ms. Baker 

argues that Defendants’ motion concerning her production (or lack thereof) 

should fail because this Court does not have jurisdiction to hear Plaintiff’s 

motion under Rule 45 and, even if there is jurisdiction, she does not have a 

duty to supplement under Rule 45. Id. at 17–19.

At the hearing, the parties narrowed the supplementation dispute 

between Defendants and Plaintiff Baker. Defendants argued that Rule 

26(e) applies, and, consequently, requires supplementation of Plaintiff 

Baker’s responses to the First Request for Production, including through 

the production of ESI in accordance with Pretrial Order No. 42. However, 

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Defendants explained they were not asking Plaintiff Baker, or any other 

Trial Group A Bellwether Plaintiff, to undertake a new ESI collection 

consistent with the protocol set forth in Pretrial Order No. 42, just a 

“reasonable investigation” of discovery responsive to their First Request for 

Production. Plaintiff Baker did not meaningfully contest Defendants’ 

assertion that Rule 26(e) applied but contended that requiring a new 

forensic examination under Pretrial Order No. 42 at undetermined and 

sporadic times before Plaintiff Baker’s trial would be disproportionate to the 

needs of this case and unlikely to result in the production of relevant 

discovery.

The Court concludes that Plaintiff Baker, like the other Trial Group A 

Bellwether Plaintiffs, has an obligation to supplement his ESI production 

under Federal Rule of Civil Procedure 26(e) with ESI that post-dates his 

last production responsive to Defendants’ Requests for Production. As 

Defendants concede, Pretrial Order No. 42 did not establish a protocol for 

supplementation, and, in the Court’s view, it would be disproportionate to 

the needs of this case to require Plaintiff Baker to undertake an entirely 

new forensic collection, linear review, and production for discovery that

would be of marginal relevance. Plaintiff Baker, therefore, must conduct 

only a reasonable inquiry and inspection to determine whether responsive 

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ESI may exist for supplementation. If it may, Plaintiff will conduct a 

reasonable search (post-dating the last production), determine whether 

non-privileged ESI is responsive to Defendants’ Requests for Production, 

and produce responsive discovery. Supplementation will be made on a 

date-certain, not on a monthly or otherwise regular basis, and the parties 

will agree on such a date in a meet and confer process.2 Production will 

occur at a point in time that will enable Defendants to utilize this information 

at trial.

At the hearing, Ms. Baker contended her production was correct at 

the time it was made. Therefore, this is an issue of supplementation. 

Putting aside jurisdictional issues, the Court concludes that Ms. Baker does 

not have an obligation to supplement her response to Defendants’ 

subpoena duces tecum. See Axis Ins. Co. v. Terry, No. 2:16-cv-1021-JHE, 

2018 WL 9943824, at *3 (N.D. Ala. Jan. 23, 2018) (“Unlike Rule 26, Rule 

45 does not contain a duty to supplement.”); Alexander v. F.B.I., 192 F.R.D. 

37, 38 (D.D.C. 2000) (“A non-party served with a subpoena duces tecum is 

under no duty to supplement its discovery responses[.]”).

2 Should the parties fail to agree on a date certain for supplementation, the undersigned 

advised them to reach out to the Court for resolution.

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In sum, Defendants’ Motion to Compel is due to be granted in part 

and denied in part. Plaintiff Baker must supplement his July 8, 2020, ESI 

production consistent with this order. Rule 45 imposes no such obligation 

on Ms. Baker in response to Defendants’ subpoena duces tecum.

III. MOTION TO COMPEL AS TO PLAINTIFF HACKER

On July 8, 2020, Plaintiff Hacker produced to Defendants a collection 

of ESI documents. Case No. 7:20-cv-131-MCR-GRJ (N.D. Fla.), ECF No. 

24 at 3. Like with Plaintiff Baker, on August 25, 2020, Defendants served 

on Plaintiff Hacker a “Second Set of Requests for Production[,]” which 

demanded production of “[a]ll communications or other [d]ocuments 

created, generated, or received since [Pretrial Order No.] 42 and which are 

responsive to the foregoing requests for production in this case.” ECF No. 

24-1 at 8. Defendants say in their motion that on October 1, 2020, they 

learned Plaintiff “Hacker continues to create and receive documents 

responsive to” Defendants’ discovery requests through third-party 

discovery. ECF No. 24 at 1. Defendants ask the Court to compel Plaintiff 

Hacker “to produce all known all known responsive material and all 

nonprivileged documents created, generated, or received on or after 

[Plaintiff] Hacker’s July 8, 2020[,] ESI production that are responsive to 

Defendants’ First Set of Requests for Production.” Id. at 2.

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The Court concludes, as the parties stated at the hearing, that the 

resolution of Defendants’ motion as to Plaintiff Baker applies equally to 

Defendants’ motion as to Plaintiff Hacker. Therefore, Defendants’ Motion 

to Compel is due to be granted to the extent Plaintiff Hacker must 

supplement his July 8, 2020, ESI production consistent with the procedure 

described above.

IV. CONCLUSION

Accordingly, it is ORDERED:

1. Defendants’ Motion to Compel Documents from Plaintiff Baker 

and Ms. Baker, Case No. 7:20-cv-39-MCR-GRJ, ECF No. 20, is 

GRANTED IN PART and DENIED IN PART. 

2. Defendants’ Motion to Compel Supplemental Production from 

Plaintiff Stephen Hacker, Case No. 7:20-cv-131-MCR-GRJ 

(N.D. Fla.), ECF No. 24, is GRANTED.

3. Bellwether Plaintiffs Baker and Hacker must supplement their 

July 8, 2020, ESI productions consistent with the procedure 

described in this order. Ms. Baker is not required to 

supplement her response to Defendants’ subpoena duces 

tecum.

DONE AND ORDERED this 5th day of November 2020.

s/Gary R. Jones GARY R. JONES

United States Magistrate Judge 

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