United States District Court, D. Delaware
Augustus Hebrew Evans, Jr., James T. Vaughn Correctional
Center, Smyrna, Delaware, Pro Se Plaintiff.
C. Schiltz, Esquire, Drinker Biddle & Reath LLP,
Wilmington, Delaware, and Daniel J. Brown, Esquire, and
Hayley J. Reese, Esquire, McCarter & English, LLP,
Wilmington, Delaware, Counsel for Defendants.
ANDREWS, U.S. DISTRICT JUDGE
Augustus Hebrew Evans, Jr., an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, who appears pro
se, filed this action in the Superior Court of the State
of Delaware in and for Kent County, Case No. K14C-09-028 RBY,
raising claims under Delaware law. The matter was removed to
this Court on October 16, 2014. (D.I. 1). The First Amended
Complaint is the operative pleading. (D.I. 44). Before the
Court are numerous motions filed by Plaintiff. (D.I. 91, 93,
96, 100, 132, 139, 146, 158).
First Amended Complaint alleges negligence, negligent
misrepresentation, breach of warranty, breach of implied
warranty of merchantability, breach of implied warranty of
fitness for a particular purpose, breach of express warranty,
and fraud by concealment arising out of Defendants'
development, marketing, and sale of the drug commonly
referred to as Risperdal. (D.I. 44). Upon motion, Plaintiff
was provided counsel in the early stages of this case.
(See D.I. 13). In October 2017, Plaintiff filed a i
motion to proceed pro se. The motion was granted on
November 6, 2017, and Plaintiffs counsel withdrew. (D.I. 89).
At that time, the parties were advised that the case would
proceed on the deadlines set forth in the Court's July
28, 2017 order, including a discovery cutoff deadline of
December 15, 2017, and a dispositive motion deadline of March
30, 2018. (D.I. 82). Since that time Plaintiff has filed a
number of motions, seeking extensions of time and discovery,
many of them complaining about defense counsel's tactics.
November 20, 2017, Plaintiff moved for counsel to forward
"all relevant discovery" to Plaintiff. (D.I. 91).
Counsel states that discovery responses have been forwarded
to Plaintiff. (D.I. 97). Counsel also received in excess of
1, 500, 000 pages on a hard drive. Counsel objects to
printing the pages, both as being prohibitively expensive
and, implicitly, as being beyond Plaintiffs capacity, given
his living situation, to store and process. Plaintiff
recognizes this reality, requesting that the Court prevent
"the game they played in sending million documents to
choose from with counsel." (D.I. 93 at 2). It is not
discharged counsel's job to cull the "relevant
discovery" from the million plus pages provided by
Defendants. Thus, I consider counsel's provision of
discovery responses without the million and a half pages to
discharge their obligation to Plaintiff. The motion (D.I.
91), therefore, will be dismissed as moot in part and denied
addition, Defendants oppose the motion on the grounds that
Plaintiff has failed to abide by the Rules of this Court,
requiring the production of confidential documents to
Plaintiff will violate the terms of the stipulated protective
order (D.I. 79), and their production would result in an
undue burden that is not proportional to the needs of this
case. (D.I. 99). Plaintiff responds that, because he proceeds
pro se, he should be held to less stringent
standards, the discovery is relevant to the needs of the
case, a hearing is necessary to resolve this issue, and a
protective order could be entered to maintain the
confidentiality of the documents. (D.I. 102).
filings indicate that on May 31, 2017, Defendants were
ordered to narrow their proposed production of documents to a
more reasonable set. (See D.I. 111 at Ex. 2). The
Court is unable to discern from the docket in this case
whether this narrowing occurred, although there is evidence
that the parties were working toward it while Plaintiff had
counsel. (D.I. 77 at 1-2). When reviewing Plaintiffs filings,
it appears the discovery he seeks consists of scientific
studies or statistical reports regarding males age 40 to 50,
that compare the lengths of use of Risperdal and typical
injuries associated with its use. (D.I. 92 p.2, D.I. 102 at
p.2; D.I. 107 at p.1; D.I. 142 at p.2; D.I. 150 at p.1).
scheduled Plaintiffs deposition to take place on December 14,
2017. (D.I. 110). Plaintiff opposed on the grounds that on
May 31, 2017, Defendants were ordered to narrow their
proposed production of documents to a more reasonable set,
and it is impossible for him to proceed with his case when he
is unable to obtain relevant documents. (D.I. 110, 111, 113).
The Court ordered that Plaintiffs deposition be held in
abeyance pending a ruling on his opposition. (D.I. 114).
was provided competent counsel who ably represented him, yet
he opted to proceed pro se, which is his right.
Nevertheless, his decision has consequences. The production
of one million plus pages of documents makes it difficult, if
not impossible, to provide him paper documents. This is
especially true in light of prison rules and regulations
regarding the storage of documents in an inmate's cell.
Nor does it seem feasible to produce the voluminous documents
at a location for Plaintiff to personally review them to
determine if any of the documents are relevant to the issues
he raises. Plaintiff seems most interested in the production
of scientific studies or statistical reports regarding males
age 40 to 50, that compare lengths of use of the Risperdal
and typical injuries associated with its use. Given that
Plaintiff has identified with some specificity what he is
seeking, it seems like a reasonable first step to find out
whether such discovery exists. Defendants will be ordered to
identify and describe any responsive discovery, including the
length of any such discovery. At the same time, Defendants
may address any confidentiality concerns and how those
concerns may be resolved.
Plaintiff has filed numerous motions for conferences or
hearings "to bring order to this case" and to
extend deadlines. (D.I. 93, 100, 139, 150, 151). Plaintiff,
who is incarcerated, indicates that he could participate by
telephone, video, or in person. Plaintiff argues that
Defendants will "fully exploit the fact that he is
incarcerated, " and, that at the time he filed the
request, he had received "zero discovery from prior
counsel." (D.I. 93). Plaintiff seeks to amend the
scheduling deadlines on the grounds that it is impossible for
him to abide by the schedule "due to the elephant in the
room." (D.I. 100). Defendants oppose, but indicate they
will participate in a conference if it would be helpful to
the Court. (D.I. 143).
motions for hearings/conferences will be denied, but the
motion to amend deadlines will be granted. In light of the
posture of this case, the Court will cancel the pretrial
conference and trial dates, to be rescheduled once the Court
is satisfied the discovery issue regarding the production of
scientific studies or statistical reports, as ...