UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Karen S. Bartlett

v. Civil No. 08-cv-00358-JL

Mutual Pharmaceutical

Company, Inc., et al.

SUMMARY ORDER

The parties have asked this court to resolve three

discovery-related issues. After conducting a telephonic hearing

on February 8, 2010, the court rules as follows:

(1) Discovery sanctions. Plaintiff has requested attorney’s

fees and costs pursuant to this court’s order dated November 2,

2009, which granted sanctions for a discovery violation by

Mutual. See Bartlett v. Mut. Pharm. Co., 2009 DNH 166. But the

plaintiff did not comply with the express requirements of this

court’s order, which stated that “plaintiffs shall submit to the

court, within 14 days of this order, an itemized bill”

substantiating any fees and costs incurred as a result of the

discovery error. Id. at 20 (emphasis added). The plaintiff

never submitted an itemized bill. Instead, she argues that

Mutual effectively did so when it attached a document she had

provided to Mutual’s counsel to its motion for reconsideration

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(filed 14 days after the order).1 But the order instructed the

plaintiff to file an itemized bill, not Mutual to file the

document she had provided to mutual. Having failed to do so, the

plaintiff has waived any claim for attorney’s fees and costs

pursuant to the order. Her request for fees and costs is

therefore denied.

(2) Bactrim documents. Mutual has requested that the

plaintiff produce any and all Bactrim documents that plaintiff’s

counsel selected for copying during the on-site document review

conducted on January 11-12, 2010 by stipulation of the parties.2

The plaintiff has refused to produce them, citing the workproduct privilege, which arguably applies here. Even if that

privilege applies, however, the plaintiff waived it by allowing

defense counsel to observe the review and, in particular, to see

which documents were being copied. Moreover, Mutual has shown

“that it has substantial need for the materials to prepare its

case and cannot, without undue hardship, obtain their substantial

equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A). This

court therefore orders the plaintiff to produce all of the

selected Bactrim documents to Mutual within 10 days of this

order. Neither party is awarded fees and costs in connection

with this issue, which the parties disputed in good faith.

1Document no. 104.

2Document no. 119.

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(3) Requests for admission. Finally, the plaintiff seeks to

compel Mutual to respond to a large number of requests for

admission (“RFAs”), which request that Mutual admit the

authenticity and admissibility of most, if not all, of the

documents that Mutual has produced in this case, as well as the

plaintiff’s medical records (totaling more than 35,000 pages). 

Mutual argues that the RFAs are overbroad and unduly burdensome. 

This court agrees. Mutual need not respond to the plaintiff’s

blanket requests. Rather, the plaintiff can ascertain Mutual’s

position as to the authenticity and admissibility of documents in

one of two ways: (1) through a renewed set of RFAs that more

specifically and reasonably describes the subset of documents as

to which the plaintiff truly has a need for authentication; or

(2) through the final pretrial arrangements in this case.3

SO ORDERED.

/s/ Joseph N. Laplante 

Joseph N. Laplante

United States District Judge

Dated: February 9, 2010

cc: Bryan Ballew, Esq.

Keith M. Jensen, Esq.

Patrick J. O’Neal, Esq.

3If the plaintiff chooses the first option, she shall be

allowed an additional 30 days to serve her renewed RFAs, beyond

the agreed-upon deadline that the parties referenced during the

hearing.

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Christine M. Craig, Esq.

Timothy B. Beaupre, Esq.

Jeffrey D. Geoppinger, Esq.

Joseph P. Thomas, Esq.

Paul J. Cosgrove, Esq.

Linda E. Maichl, Esq.

Stephen J. Judge, Esq.

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