P&G Gets to See Competitor’s Studies

(CN) - Procter & Gamble is entitled to see study results on Fixodent, which a competing company claims can cause brain damage, a federal judge ruled.

Sarfez Pharmaceuticals and Sarfez USA sued Procter & Gamble over the denture cream, which they claimed "blocks copper absorption and ultimately leads to neurological injury."

The multidistrict litigation was filed in Miami and moved to Washington, D.C.

In his ruling, U.S. District Judge Reggie Walton wrote that Dr. Salim Shah was paid $300,000 in India, in 2012, "to determine how much copper, if any, is blocked, during exposure to Fixodent."

Procter & Gamble claimed it requested the entirely of Shah's analysis, but was left waiting.

Though Sarfez "produced in excess of 1,500 pages of responsive discovery material," Procter & Gamble said, it "failed to produce numerous responsive documents," including complete email chains, raw data from labs in India, and multiple analytical reports.

Sarfez claimed it had been "cooperative at every request ... and ha[ve] produced all documents within [their] possession and control," the ruling states. (Brackets and ellipsis in original.)

Procter & Gamble moved to compel Safez to release all responsive documents, to produce computers for forensic imaging, and to reimburse it for costs.

Walton concurred, ruling that Sarfez "wrongfully withheld" the requested information.

"Given that there is evidence in the documents produced to date which shows that certain other documents have been wrongfully withheld, and given also the failure to produce emails in a manner that allows the defendants to match the emails with their attachments, the court finds that the Sarfez entities' document production to date does not comply," Walton wrote.

Citing intrusion and costs, however, Walton declined Proctor & Gamble's request for computer imaging.

"(B)ecause requiring forensic imaging would be a significant intrusion and would undoubtedly increase the costs associated with production, the court denies without prejudice the defendants' request for forensic imaging of the Sarfez entities' computers," the 15-page ruling states. "Accordingly, the Sarfez entities should bear in mind that they might be required to bear the cost of forensic imaging in the future if they fail to comply fully with this court's order that they produce all documents responsive to the defendants' subpoenas."

Walton declined a request to find Sarfez in contempt for failing to obey the subpoena.

"Here, there was no court order compelling discovery in place, and it is thus inappropriate to find the Sarfez entities in contempt at this juncture," the ruling states. "The court will therefore deny without prejudice the defendants' request for a finding of contempt and an order of fees and costs associated with filing the current motion to compel the production of documents."

Procter & Gamble may renew its denied requests if Sarfez fails to comply with the order.

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