1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

IN RE: DAVOL, INC./C.R. BARD, INC., 

POLYPROPYLENE HERNIA MESH 

PRODUCTS LIABILITY LITIGATION

This document relates to: 

Johns v. CR Bard et al., 

Case No. 2:18-cv-1509

 Case No. 2:18-md-2846

 JUDGE EDMUND A. SARGUS, JR.

 Magistrate Judge Kimberly A. Jolson

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

PLAINTIFF’S MOTION TO COMPEL (ECF No. 517)

Before the Court is Plaintiff’s second motion to compel non-party Red Oak Sales to 

produce discovery. (ECF No. 517.)1 During the June 8, 2021 conference, the Court permitted the 

Plaintiffs’ Steering Committee (“PSC”) to file a motion to compel and for Red Oak to respond. 

(ECF No. 521 at PageID #6770–71.) The PSC seeks an order compelling Red Oak to produce all 

responsive documents to the earlier subpoenas and/or an order compelling Red Oak to create a 

privilege log detailing the documents Red Oak says are privileged. (ECF No. 517 at PageID 

#6705–06.) For the reasons that follow, the motion to compel is granted in part and denied in part.

The documents at the heart of this discovery dispute are emails between Red Oak and their 

counsel, Womble, Bond, and Dickinson, LLP (“WBD”), beginning in 2014. (ECF No. 517-3 at 

PageID #6736.) The PSC contends that Red Oak did not review its emails with WBD for 

responsive documents (ECF No. 517 at PageID #6704), while Red Oak asserts that “the vast 

majority of such communications are privileged, so it would be a waste of time to undertake this 

search” (ECF No. 524 at PageID #6809). The PSC’s core contention, then, is that attorney-client 

1 All citations are to the docket in No. 18-md-2846.
2

privilege cannot provide a basis for avoiding the production of responsive documents and that Red 

Oak must conduct a review to locate any responsive documents and assert attendant privileges in 

a privilege log. (ECF No. 517 at PageID #6706–07.) Red Oak counters that responding to the 

subpoena subjects it to an undue burden, and that if Red Oak must comply, the PSC should foot 

the bill for the review of seven years of emails and the creation of a privilege log. (ECF No. 524 

at PageID #6813, 6818.)

Two preliminary matters need addressing. First, Red Oak cannot claim that emails falling 

within attorney-client privilege were beyond the scope of the PSC’s subpoena. The text of Federal 

Rule of Civil Procedure 45, which governs discovery from non-parties, makes that clear because 

Rule 45(e)(2)(A) expressly contemplates privileged information being responsive to the subpoena: 

If “[a] person [is] withholding subpoenaed information under a claim that it is privileged,” the 

person “must expressly make the claim and describe the nature of the withheld documents, 

communications, or tangible things in a manner that, without revealing information itself 

privileged or protected, will enable the parties to assess the claim.” Fed. R. Civ. Pro. 

45(e)(2)(A)(i)–(ii). Indeed, there would otherwise be no reason to produce a privilege log if the 

privileged information was per se unresponsive and thus undiscoverable. 

Second, it is inappropriate to conclude that Red Oak waived or forfeited any argument by 

failing to object within fourteen days of service of the subpoenas, as set forth by Rule 45(d)(2)(B), 

as the PSC argues. (ECF No. 517 at PageID #6710–11). Regarding claims of privilege, Rule 

45(d)(2)(A) “fails to provide any guidance as to when the claim of privilege or work product must 

be asserted by the person subpoenaed.” 9A Arthur R. Miller, Federal Practice and Procedure § 

2464, Westlaw (database updated Apr. 2021). Courts are also disinclined to strictly apply the 14-

day deadline for objections when “the subpoenaed witness is a non-party acting in good faith.” 
3

Powell v. Time Warner Cable, Inc., No. 2:09–cv–00600, 2010 WL 5464895, at *4 (quoting Am. 

Elec. Power Co., Inc. v. U.S., 191 F.R.D. 132, 136 (S.D. Ohio 1999)). 

Here, there is no indication that Red Oak acted in bad faith when it did not raise its 

arguments here as objectionsto the subpoenas. Red Oak responded to each of the PSC’s subpoenas 

and supplemented its disclosures, which the PSC acknowledges. (ECF No. 517 at PageID #6709; 

ECF No. 524 at PageID #6807.) Although the PSC disputes whether Red Oak has complied fully 

with the subpoenas, there is no evidence of bad faith on the part of Red Oak or WBD.

2

 And given 

that Red Oak could have forfeited its ability to seek costs if it had voluntarily reviewed the emails, 

see In re Modern Plastics Corp., 890 F.3d 244, 252–53 (6th Cir. 2018), and that the PSC filed a 

motion to compel before the parties could meet and confer or Red Oak could file a motion to quash, 

it is unsurprising that Red Oak seeks direction from the Court before proceeding further.

With this in mind, the issues remaining are whether the PSC’s request that Red Oak review 

these emails and create a privilege log imposes an undue burden or expense on Red Oak and how 

an order compelling Red Oak can mitigate the undue burden. “A party or attorney responsible for 

issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or 

expense on a person subject to the subpoena.” Fed. R. Civ. Pro. 45(d)(1). District courts must 

“enforce this duty and impose the appropriate sanction,” including reasonable attorney’s fees “on 

a party or attorney who fails to comply.” Id. If a Court compels a non-party’s production, it must 

issue an order that “protect[s] a person . . . from significant expense resulting from compliance.” 

2 Red Oak argues that the Court should dismiss the motion to compel because the PSC did not attempt to 

confer in good faith prior to filing the motion to compel as required by Federal Rule of Civil Procedure 37(a)(1). (ECF 

No. 524 at PageID #6811.) The attached emails show counsel from both sides were willing to meet and confer after 

the June 8, 2021 conference. (ECF No. 524-2 at PageID #6876.) However, the Court’s decision at the conference to 

permit the PSC to file a motion to compel and Red Oak’s agreement to briefing the issue obviated the need to meet 

and confer. (See ECF No. 521 at PageID #6770.) Courts may utilize their discretion to adjudicate a motion to compel 

even if the parties fail to meet and confer when the “issues have to be resolved somehow, so there is no use in denying 

the Motion to Compel and starting the process over again.” Benavidez v. Sandia Nat’l Laboratories, 319 F.R.D. 696, 

726 (D.N.M. 2017). Such is the case here.
4

Fed. R. Civ. Pro. 45(d)(2)(B)(ii). “Although [Red Oak’s] status as a non-party does not relieve it 

of its obligations to respond to proper discovery requests or to comply with the applicable rules, it 

does entitle [Red Oak] to consideration regarding expense and inconvenience.” Am. Elec. Power,

191 F.R.D. at 137. Courts consider “relevance, the breadth of the document request, the time 

period covered by it, the particularly with which the documents are described, and the burden 

imposed” when evaluating whether compliance with a subpoena subjects the witness to an undue 

burden. Id. at 136 (quoting Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 53 (S.D.N.Y. 

1996)). 

Considering these factors, an order only complying production would result in an undue 

burden. Even though the Court permitted the PSC to file a reply (ECF No. 525), the PSC does not 

explain how these emails are relevant. The breadth of the document request is also expansive, 

including documents and information related to polypropylene, technical sheets, and all 

complaints, lawsuits, etc. related to polypropylene. (ECF No. 517-2 at PageID #6731.) Because 

WBD is Red Oak’s counsel, this would realistically require review of all emails between them. 

The time period is also longer, going back to 2014. And finally, the PSC provides no additional 

description of the types of emails that it hopes to find. The most detail the PSC offers is that an 

example that “two Red Oak employees exchanged email regarding particular specifications of 

polypropylene they were procuring for Defendants and then forwarded that email correspondence 

to Red Oak’s counsel without the intent to seek legal advice.” (ECF No. 517 at PageID 6709.) 

However, the value of such discovery would be low. The production of these emails are

duplicative because the original emails should have been produced. And the cost in time and 

money of reviewing these emails and developing a privilege log is relatively high. The PSC 

contends that Red Oak has already produced some of these documents in previous litigation (ECF 
5

No. 533 at PageID #6994 n.2), which certainly decreases the burden for Red Oak to comply with 

the subpoena. But on the whole, the factors demonstrate that an order simply compelling 

production would put an undue burden on Red Oak. 

The burden on Red Oak can be mitigated one of two ways. First, the PSC can pay the costs 

of having Red Oak and WBD review the emails and create a privilege log. Second, the PSC can 

create a narrow discovery plan agreeable to both the PSC and Red Oak or, in the absence of 

agreement, and only for good cause, ordered by the Court. For instance, the PSC could narrow 

the date range, narrow the subject matter in some manner, reduce duplicative discovery, etc., and 

provide search terms to that effect. Accordingly, the PSC’s motion to compel Red Oak is denied 

in so far as the PSC seeks production without shouldering the costs and granted in so far as the 

PSC implements one of the two mitigation options above.3

 

For these reasons, Plaintiff’s motion to compel (ECF No. 517) is GRANTED IN 

PART AND DENIED IN PART. 

IT IS SO ORDERED.

7/9/2021 s/ Edmund A. Sargus, Jr.

DATE EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE

3 The parties no longer dispute whether Red Oak otherwise failed to produce certain documents as evidence 

by what the PSC has named the “Resign Box” email chain. (ECF No. 533 at PageID #6991.) Red Oak argues that 

the PSC should not be awarded costs for bringing this motion to compel (ECF No. 524 at PageID #6819), but the 

PSC does not raise this argument. Accordingly, the Court does not address it.