PLAINTIFF’S MOTION TO COMPEL AGAINST INVASIX, INC. PAGE 1 OF 7

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

CHRISTINE LITTLE,

 Plaintiff, 

v. 

INMODE, LTD., INMODE MD, LTD., 

and INVASIX, INC.,

 Defendants. 

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Civil Case No. 4:23-cv-00332 

JURY TRIAL DEMANDED

PLAINTIFF’S MOTION TO COMPEL AGAINST INVASIX, INC.

This case is a products liability case involving a facial treatment product (the “Evoke”)

sold by Defendant Invasix, Inc. The Evoke burned Plaintiff Christine Little’s face. 

Defendant Invasix, Inc., has not produced documents and information that “are relevant to 

the claim or defense of any party” in accordance with Federal Rule Civil Procedure 26(a), Local 

Rule CV-26, and the Court’s Order Governing Proceedings (Dkt. 22). This includes documents 

related to the design, manufacture, testing, and sale of the defective product that burned Mrs. Little. 

Plaintiff has attempted to confer with Invasix for months (a duration that reflects respect 

for the changeover in counsel for Defendants). Invasix did not produce relevant documents and 

information with its disclosure and then ceased responding to counsel for Plaintiff’s attempts to 

finalize conference efforts. Counsel for Plaintiff made one final attempt to confer with counsel for 

Invasix just before filing this motion by sending a draft of this motion. Only then did Invasix break 

its weeks-long silence. 

Invasix then amended its disclosures state to it doesn’t have the documents it listed in its 

disclosures about the Evoke in its possession as they are in the possession of its parent company, 

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PLAINTIFF’S MOTION TO COMPEL AGAINST INVASIX, INC. PAGE 2 OF 7

InMode, Ltd. (which refuses to make disclosures pending the resolution of its Motion to Dismiss 

for Lack of Personal Jurisdiction). A subsequent conference between counsel confirmed that 

Invasix will not budge.

Plaintiff requests that this Court compel Invasix to comply with Federal Rule Civil 

Procedure 26(a), Local Rule CV-26, and the Court’s Order Governing Proceedings and award 

costs pursuant to Federal Rule of Civil Procedure 37(a)(3)(A), (5).

PROCEDURAL BACKGROUND

Invasix served its initial disclosures on Plaintiff on July 17, 2023 after obtaining an 

extension from Plaintiffs. Invasix identified several categories of documents and information that 

would be relevant to this case in its disclosure, such as information and documents about the 

design, manufacture, testing, marketing, and sale of the Evoke and information and documents 

related to the incident at Le Beau Visage Medical Spa. Ex. 1—Invasix’s Initial Disclosures, at p. 

6, Section D (¶¶ 4-5). After Invasix’s disclosure, Plaintiff requested that Invasix produce 

documents and information related to the manufacture, design, sale, and testing of the failed 

product. Yet these categories of documents and information have not been produced. Once 

threatened with a motion to compel, Invasix amended its disclosure to state that the responsive 

documents are in the possession of its parent company, InMode, in an effort to avoid its discovery 

obligations.

Further, Invasix has not produced all applicable insurance policies as required under 

Federal Rule Civil Procedure 26(a)(1)(A)(iv). 

Counsel for Plaintiff has unsuccessfully attempted to confer with counsel for Invasix for 

months. The same day Plaintiff received the disclosure, counsel for Plaintiff sent an email asking

defense counsel for the full insurance policy. See Ex. 2—Plaintiff’s Emails with Invasix. Counsel 

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PLAINTIFF’S MOTION TO COMPEL AGAINST INVASIX, INC. PAGE 3 OF 7

for Plaintiff heard nothing in response and followed up by email again on August 24, 2023, asking 

for the full insurance policy, as well as any settlement agreements or any documents regarding the 

design and manufacture of the subject product. Id. Two weeks later, on September 8, 2023, 

Counsel for Plaintiff asked defense counsel to set up a meeting to confer on the missing documents. 

New defense counsel responded the following week, and the parties had a phone call on September 

13, 2023, to discuss the missing documents. Id. 

Invasix did not produce any documents after the meet and confer. Counsel for Plaintiff 

again sent an email on October 3, 2023, requesting production. Id. Counsel for Plaintiff did not 

hear from Invasix’s counsel and on October 16, 2023, requested a phone call to meet and confer 

in advance of a motion to compel. Id. Counsel for Plaintiff has also called Invasix’s counsel 

attempting to confer or get a status update. Counsel for Plaintiff provided Invasix with a draft of 

this motion prior to filing after repeated efforts to following up on the meet and confer had failed 

to receive a response. Id. 

After receiving a draft of this Motion, Invasix’s counsel informed counsel for Plaintiff that 

Invasix would be amending its disclosures to state that it did not have relevant document and 

information about the Evoke and to confirm that it would not produce copies of any excess 

insurance policies. Accordingly, Defendant amended its disclosure that day to reflect that 

conversation. Ex. 3—Defendant’s Amended Disclosures, at p. 7-8, Section D (¶ 5) and Section F. 

ARGUMENT

Defendant has failed to comply with the Court’s Order Governing Proceedings (Dkt. #22)

by not producing the documents identified in Defendant’s disclosure. The Court’s Order 

Governing Proceedings states that, in addition to the materials required by Federal Rule of Civil 

Procedure 26(a)(1), parties to produce the following with their initial disclosures: 

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PLAINTIFF’S MOTION TO COMPEL AGAINST INVASIX, INC. PAGE 4 OF 7

Under Local Rule CV-26(d)(3), (5), “relevant to the claim or defense of any party” includes 

“information that is likely to have an influence on or affect the outcome of a claim or defense” and 

“information that reasonable and competent counsel would consider reasonably necessary to 

prepare, evaluate, or try a claim or defense.” 

Documents and information about the manufacture, design, testing and sale of the defective 

product and documents and information related to the incident are undoubtedly relevant to the 

claim or defense of any party. Indeed, they are necessary to help shape targeted written discovery 

and permit Plaintiff to determine whom to depose. 

Moreover, in Section D(5) of its Initial Disclosures, Defendant identified “documents and 

information regarding the design, manufacture, testing, and sale of the Evoke device” and 

“information and documents related to the Incident at Le Beau Visage Medical Spa.” Yet, to date, 

Defendant has failed to produce the following basic documents and information within those 

categories:

• Design drawings for the Evoke; 

• Underwriters Laboratory file for the Evoke; 

• Design change orders for the Evoke; 

• Design Failure Mode and Effects Analysis for the Evoke; 

• Process Failure Mode and Effects Analysis for the Evoke; 

• Assembly Process Flow Diagram for the Evoke; 

• Assembly Process Control Plan for the Evoke; 

• Standard work documents for product assembly for the Evoke; 

• Training records for personnel handling the product during manufacturing for the 

Evoke; 

• Policies and procedures for quality control for the Evoke; 

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PLAINTIFF’S MOTION TO COMPEL AGAINST INVASIX, INC. PAGE 5 OF 7

• Final inspection data for product assembly line for the Evoke; 

• Final inspection reject pareto charts for the Evoke; 

• Operational testing data for the Evoke; 

• Safety analysis testing data for the Evoke; 

• Reliability testing data for the Evoke; 

• Warranty data for the product for the Evoke; 

• Marketing analysis from public reviews for the Evoke; 

• Communications with Le Beau related to the Incident;

• Internal communications related to the Incident; and

• Defendant’s settlement agreement with Le Beau related to the Incident. 

Upon receiving Plaintiff’s draft motion to compel, Invasix amended its disclosures to state 

that most documents about the Evoke are in the possession of its parent, InMode, Ltd. This is a 

brazen and bad faith effort to avoid producing those documents. When a wholly owned subsidiary 

that distributes a parent’s product, shares overlapping directors/officers, and the parent is involved 

in the litigation—as is the case here—then federal courts have not brooked shell games. See, e.g., 

Uniden Am. Corp. v. Ericsson Inc., 181 F.R.D. 302, 307 (M.D.N.C. 1998) (citing M.L.C., Inc. v. 

North American Philips Corp., 109 F.R.D. 134, 136 (S.D.N.Y. 1986) (common counsel had access 

to documents of parent company in a prior litigation and the parent company had supplied 

documents in the then pending litigation); Cooper Industries, Inc. v. British Aerospace, Inc., 102 

F.R.D. 918, 919–20 (S.D.N.Y.1984) (subsidiary distributed and serviced the subject product which 

was manufactured by the parent)).1 Invasix is more than capable of asking InMode to send it 

documents and information about the Evoke—both to sell the product and attempt to have 

Plaintiff’s claim dismissed. Invasix cannot thwart basic disclosures of documents Invasix 

originally had no problem disclosing by amending its disclosures to state that its co-Defendant 

parent company has them in their possession instead. 

1

 Plaintiff’s First Amended Complaint details—with reference to exhibits—these facts. (Dkt. 19 ¶¶ 10-20). 

Plaintiffs’ submissions in response InMode’s Rule 12(b)(2) Motion also detail these facts. (Dkt 42, 42-1, 42-2, 

42-3). Invasix’s Rule 12(b)(6) Motion attached an InMode document as an exhibit. (Dkt. 31-1). InMode is a party 

to this lawsuit that refuses to comply with its disclosure obligations because of its pending Rule 12(b)(2) 

challenge. Invasix and InMode are also jointly represented. (Dkt. 47). See infra note 2.

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PLAINTIFF’S MOTION TO COMPEL AGAINST INVASIX, INC. PAGE 6 OF 7

Finally, under Federal Rule of Civil Procedure 26(a)(1)(a)(iv), Invasix should have

produced all policies of insurance that may provide coverage for this claim. Invasix has only 

produced a redacted declaration page of its general liability policy and has not produced any excess 

policies as it is required to do under the Rules. Invasix has a duty to produce “any insurance 

agreement that could possible apply to the insurance business—however unlikely it may be—to 

satisfy all or part of a possible judgment in a case.” Regalado v. Techtronic Indus. N. Am., Inc., 

No. 3:13-CV-4267-L, 2015 WL 10818616, at *2 (N.D. Tex. Feb. 24, 2015).

At base, Plaintiff is simply seeking basic product liability documents that it can provide to 

her experts and that she can use to conduct more targeted discovery. Defendants meanwhile seem 

intent on delaying the case through motion practice. 

Plaintiff respectfully requests that the Court grant this Motion and compel Invasix to 

produce the documents and information bulleted above and disclose all policies of insurance that 

may provide coverage for Plaintiff’s claim. In the alternative, Plaintiff respectfully requests that 

the Court compel InMode, Ltd. to comply with its disclosure obligations.2

CONCLUSION

Plaintiff respectfully requests that the Court compel the documents and information 

identified above in accordance with the Court’s Order Governing Proceedings so that discovery 

into other matters may be better informed and targeted.

2 Having hoped that Invasix would simply make its required disclosures, Plaintiff has not fully conferred on 

InMode, Ltd’s failure to make disclosures in an effort to not bog this Court down with additional motions in this 

case. Plaintiff notes the Local Rules do not permit evasion of mandatory disclosures through the use of Rule 12(b) 

motions. E.g., Mohamed v. Mazda Motor Corp., 90 F. Supp. 2d 757, 763 & n.4 (E.D. Tex. 2000) (noting 

“Defendant Mazda has apparently refused to participate in this Court's mandatory disclosure obligations by 

erroneously refusing to make its initial disclosures.... This Court encourages all litigants to honor their initial 

disclosure obligations under Rule CV–26 for the Eastern District of Texas. Recalcitrance to this Court's Local 

Rules—including the mandatory initial disclosure obligations—will not be tolerated.”). InMode, Ltd. has not 

heeded Judge Heartfield’s admonition.

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PLAINTIFF’S MOTION TO COMPEL AGAINST INVASIX, INC. PAGE 7 OF 7

Respectfully submitted,

LYONS & SIMMONS, LLP

Michael P. Lyons 

State Bar No. 24013074 

mlyons@lyons-simmons.com 

Stephen Higdon

State Bar No. 24087719 

shigdon@lyons-simmons.com

Michael S. Fechner, Jr.

Texas Bar No. 24108166 

mfechner@lyons-simmons.com

2101 Cedar Springs Rd., Suite 1900 

Dallas, TX 75201 

214-665-6900 

Fax 214-665-6950 

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF CONFERENCE

Counsel for movant attempted to confer with counsel for the nonmovant on multiple 

occasions via emails and phone calls from August 18, 2023, through October 30, 2023 (as further 

detailed above in the Background section of this motion and Exhibit 2). Therefore, despite the best 

efforts of counsel for movant, counsel has not been able to resolve those matters presented. 

 

___________________________________ 

Michael S. Fechner, Jr. 

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