Court Requires Balancing of Need for Evidence with Burden of Discovery Order

Biomet, Inc. v. Fleury, 912 So.2d 706 (Fla. Dist. Ct. App. 2005)

Norman and Karen Fleury filed a products liability and personal injury lawsuit alleging that Mr. Fleury’s Biomet knee prosthesis failed prematurely. The trial court granted a broad discovery order requiring Biomet, Inc. to produce documents related to complaints about its products that contain molded or machined ultra high molecular weight polyethylene intended for insertion into humans. Defendants petitioned for a writ of certiorari to quash the order.

At the motion hearing, defendants argued that the order would require its personnel to engage in a time-consuming two-part procedure. First, they would need to look through 4200 reports, which are filed in a computer database, for references to polyethylene. These reports function as cover sheets to backup documents, however, so they would also need to review backup documents associated with each report where polyethylene references were found. Plaintiffs’ counsel, however, indicated that he would be willing to look through the reports himself and flag any that might merit further investigation.

The appeals court held that while the products covered in the order are substantially similar for purposes of this litigation (given that sterilization and storage of polyethylene-based products are at issue), the need for evidence is to be balanced with the Biomet’s right to be free from burdensome discovery obligations. Thus, rather than issuing the broad discovery order, the trial court should have entered an order as outlined by plaintiffs’ counsel at the hearing. “Biomet admitted that simply printing the 4200 cover sheets would cost substantially less in time and money than the court-ordered procedure, and the Fleurys’ counsel offered to pay that cost… If the Fleurys’ counsel flags a report indicating he desires to see the backup documents, Biomet will have an opportunity to dispute the relevance and similarity of each request. We are certain that, on remand, the parties can reach mutually agreeable terms for the Fleurys’ counsel to view the 4200 reports.”

The petition for certiorari was granted, and the discovery order quashed and remanded.