And Now, Some Legal Advice From The Beatles

     (CN) – A federal judge urged two pharmaceutical companies to take advice from the Beatles song “We Can Work It Out,” as one side tried to compel review of 9,000 documents on a page-by-page basis.
     “Lyrics from a Beatles song help resolve a discovery dispute which should not, at least for now, even be a dispute: ‘We can work it out. Life is very short, and there’s no time for fussing and fighting, my friend,'” the 26-page opinion begins.
     The dispute stems from a January 2012 agreement that gave pharmaceutical company Patheon the exclusive rights to market technology from soft-gel manufacturer Procaps.
     Patheon acquired Banner Pharmcaps Europe, a major competitor of Procaps, later that year.
     Procaps filed suit, claiming that the acquisition will make the companies’ collaboration agreement illegal under antitrust laws because it will make Patheon a competitor in the softgel market.
     Most recently, Procaps sought a court order to compel Patheon to re-review 8,893 documents designated “highly confidential,” of 25,133 total produced, and to redesignate them on a page-by-page basis.
     It claimed that marking 35 percent of all responsive documents as highly confidential shows an abuse of the designation.
     In response, Patheon argued that, while individual pages may seem innocuous, the documents should be classified as a whole as confidential or not, rather than on a page-by-page basis.
     U.S. Magistrate Judge Jonathan Goodman denied Procaps’ motion as premature Wednesday. In addition to the earlier Beatles quotation, the Miami judge looked to Meat Loaf’s “Jumpin’ the Gun” and John Lennon’s “Give Peace a Chance.”
     “For now, Procaps’ motion conflicts with musical advice in two songs:
     “1. ‘Keep your toe on the line, keep your foot on the brake/ No sense jumpin’ the gun.’
     “2. ‘All we are saying is give peace a chance.'”
     On a limited review of the material designated “highly confidential,” the court said it could not rule on whether Patheon had used the designation in good faith.
     Goodman said he “is confident,” however, “that the parties will be able to resolve most, if not all, of the dispute on their own, after Procaps advises Patheon of the document designations it is challenging and after the court resolves the essential issue of which designation methodology is to be used in the case and demonstrates its philosophy through particular rulings on specific pages.” (Italics in original.)
     Practical concerns heavily favor a document-by-document methodology, over a laborious and expensive page-by-page review of each document, the judge said.
     In a case where a party did not act in good faith, however, a blanket request for re-review may be appropriate, according to the ruling
     But at this point, Procaps’ motion to compel is premature because “it did not sufficiently vet its challenges with Patheon and did not provide Patheon with the opportunity to reconsider its ‘highly confidential’ designations as to the specific documents challenged by Procaps,” Goodman wrote.
     “Nor has Procaps shown that Patheon has acted without good faith to warrant a blanket challenge and re-designation by Patheon,” he added. “Accordingly, Procaps must present Patheon with specific document challenges and then address the challenges on a document-by-document basis in a good faith conference.”

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