In Re: Gardasil Products Liability Litigation

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UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:22-md-3036-RJC
IN RE: GARDASIL PRODUCTS
LIABILITY LITIGATION
MDL NO. 3036
THIS DOCUMENT RELATES TO
ALL CASES
DEPOSITION PROTOCOL ORDER
Pursuant to Fed. R. Civ. P. 30(b)(4), this Court hereby issues the following protocol to
govern any depositions taken in In Re: Gardasil Products Liability Litigation, MDL No. 3036.
A. General Provisions
1. This Order shall apply to all actions that have been or will be originally filed in,
transferred to, or removed to this Court and assigned to the MDL. This Order shall apply to
depositions of current and former employees of the Merck Defendants, Initial Bellwether Pool
plaintiffs and their parents/guardians, and Initial Bellwether Pool plaintiffs’ Healthcare
Providers as outlined in First Case Management Order. The parties will meet and confer about
a deposition protocol for expert witnesses prior to expert discovery and any further case-specific
depositions at a later time.
2. Consistent with the Second Pretrial Order and the parties’ agreement to coordinate
discovery, depositions originally noticed in this MDL of any current and/or former Merck
employees and any Merck corporate deponents will be cross-noticed in pending Gardasil state
court cases. Counsel of record for Defendants other than Merck in pending Gardasil state court
cases may appear and participate in the depositions of any current and/or former Merck
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employees and any Merck corporate deponents consistent with the provisions in this Order.
3. Unless directly contradicted or expressly modified herein, the Federal Rules of
Civil Procedure and Local Rules of the Court control. However, to the extent any objections are
asserted during the deposition, for the state court cases, those objections will be governed under
the respective state law rules of evidence (e.g. California Evidence Code) and for the MDL
cases the objections will be governed, to the extent applicable, by the Federal Rules of Evidence.
4. All depositions shall be conducted during normal business hours within the
witness’s local time zone. Parties are expected to grant reasonable accommodations on
scheduling and timing of depositions.
5. The deposition shall be subject to the aggregate time limitations set forth in Fed.
R. Civ. P. 30(d)(1) including direct and recross. If the defending attorney anticipates more than
one (1) hour for direct examination of the witness, the parties will meet and confer regarding
the total time allotted for the deposition. If a party believes more than seven (7) hours will be
required to fairly examine a deponent, the parties shall meet and confer about whether additional
time should be allocated for that deposition. Similarly, where the witness has restrictions on the
length of time he or she may sit for a deposition, defending counsel shall notify examining
counsel in advance, so that the parties may confer on a schedule to complete the deposition. If
the parties are unable to resolve disputes regarding the length of time needed for a deposition
or deposition scheduling, the parties may raise the issue with the Court.
6. All depositions will be recorded by a court reporter at the expense of the Noticing
Party.
7. The Noticing Party shall bear the initial expense of both stenographic recording
and videotaping, if any. The Noticing Party will also make arrangements to allow for remote
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deposition attendance with the company that will host and record the deposition (the
“Deposition Vendor”). The parties shall pay for their own copies of transcripts and videotapes
of depositions. For depositions of Initial Bellwether Pool plaintiffs’ Healthcare Providers, the
party noticing the deposition shall be responsible for payment. For depositions requiring a
translator, the party noticing the deposition shall be responsible for payment.
8. The Parties shall meet and confer in advance of Initial Bellwether Pool Plaintiffs’
Healthcare Providers to agree upon an appropriate division of time. In addition, if a Party
believes it has a legitimate interest in the confidentiality of documents responsive to the
subpoena, then it shall raise this issue with opposing counsel in order that it may be addressed
and resolved as necessary.
9. Nothing herein is intended to (nor shall it) modify the terms of the Stipulated
Protective Order, which will govern the treatment of documents and information designated
pursuant to the Protective Order.
B. Depositions of Merck Witnesses, Plaintiffs, and Plaintiffs’ Parents/Guardians
1. It is expected that current and former employees of Merck, Plaintiffs, and
Plaintiffs’ parents/guardians will appear and present in person for their depositions.
2. Even if noticing counsel chooses to appear remotely, it is expected that the
videographer, if any, will be physically present in the same room as the witness.
3. Even if noticing counsel chooses to appear remotely, it is expected that the court
reporter will be physically present in the same room as the witness and administer the oath in
person.
4. If noticing examining counsel appears remotely, noticing counsel may
nevertheless send up to two representatives (who must be either counsel of record in the
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Gardasil MDL or an attorney at a Plaintiffs’ Steering Committee or Plaintiffs’ Leadership firm
(hereafter collectively referred to as “PSC”) to the deposition, if counsel for the witness is
appearing in person.
5. Except for in-person depositions of the Plaintiff or the Plaintiffs’ parent(s)
(described below in Paragraph 6), in addition to the deponent, the court reporter, and the
videographer, deposition attendance under Section B of this Order (whether remote or in-
person) is limited to noticing examining counsel, noticing counsel’s representative(s) if
examining counsel is not attending in person (as described above), counsel defending the
deposition, the witness’s counsel (if different), Merck’s counsel (if different), counsel of record
for Defendants other than Merck in pending Gardasil state court cases, and Merck’s in-house
counsel. For in person depositions, up to three of examining counsel’s non-attorney staff may
attend. Examining counsel must identify their staff on the record and confirm they are subject
to the Stipulated Protective Order. Any person attending remotely must be an attorney or non-
attorney staff of a PSC firm or Defendants’ counsel and must be identified on the record,
including name of the party they represent and the law firm or company by which they are
employed. Remote attendees may also be required to confirm that they have signed and/or are
subject to the Stipulated Protective Order.
6. For in person depositions of the Plaintiff or the Plaintiffs’ parent(s), in person
attendance should be limited to the deponent, counsel for the deponent, noticing/examining
counsel, and up to 2 attorneys or non-attorney staff to assist the noticing/examining attorney.
Any remote attendance shall be in accordance with the terms of Paragraph 5 above.
7. All deposition notices must identify the Deposition Vendor, whether examining
counsel for the Noticing Party will appear remotely, and, if applicable, contain a general
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description of how counsel for the Noticing Party attending remotely may access the remote
connection being utilized (e.g., GoToMeeting, Zoom, WebEx). No more than one (1) week and
no less than forty-eight (48) hours prior to the deposition, the Noticing Party or the Deposition
Vendor must also provide a link and description to allow for remote deposition attendance by
both email and Outlook invitation.
8. The party that noticed the deposition shall be responsible for informing the court
reporting service and Deposition Vendor of the date, time and needs of the deposition.
9. The Party that noticed the deposition shall provide the court reporter with a copy
of this Order, if examining counsel plans to attend remotely, at least 24 hours in advance of the
deposition.
10. Examining counsel that attends a deposition remotely must contact the Deposition
Vendor and make the necessary arrangements to facilitate remote appearance, including Zoom
or other videoconference capabilities.
11. Counsel of record for either party may attend the deposition remotely if he or she
is not examining the witness. All counsel present for the deposition, remotely or in person, must
introduce themselves on the record. Nothing herein shall prohibit a party from contacting the
court reporting service or Deposition Vendor.
12. Counsel for the Noticing Party must ensure the Deposition Vendor has
implemented adequate security measures to ensure the confidentiality of the remote deposition
(e.g., video and audio feeds, exhibits). These security measures include using tools such as a
“virtual waiting room” that allows the court reporter to admit only individuals authorized to
attend the deposition, and disabling the “record” feature in the Remote Deposition Technology
for the witness and attending attorneys. The Noticing Party and the Remote Deposition Vendor
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must ensure that only registered participants and attendees are sent a link to join the deposition;
no link should be posted on a website or otherwise made publicly available. The Remote
Deposition Vendor shall maintain a list of all participants and attendees. Only the videographer
or court reporting service shall capture video and/or audio of the deposition. No other
participants shall make any recordings (video or audio) or take any pictures or screen captures
of the deposition.
13. If Counsel for either party appears remotely for a deposition and persons other
than the witness are present in the room with the witness, there shall be a camera view showing
all the people present in the room (other than the court reporter/staff/videographer), specifically
including the witness and counsel (and any other persons assisting in the deposition, such as a
paralegal or legal assistant). Even when there is a camera with a view showing all people
present, there shall also be a camera showing the deponent individually. Further, if counsel for
the witness and/or counsel defending the deposition attends the deposition in person, that
counsel shall ensure, either by logging into the Remote Deposition Videoconference or
otherwise, that counsel can be seen and heard by all participants and that counsel can readily
view exhibits/materials that may be displayed through the videoconference platform without
utilizing the screen dedicated for the witness’s use.
14. To avoid any potential disruptions of the deposition, those attending shall enable
“do not disturb” settings for applications not in use, including but not limited to, Skype, instant
messaging, and/or e-mail notifications. If counsel for either Party attends remotely, anyone who
is in person with the witness must remain on video when the deposition is on the record and
either an individual microphone or a microphone in the room must be able to receive and
broadcast the voice of every person present. Other remote attendees should mute microphones
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when not speaking. The participating attorneys may be visible to all other participants during
the deposition. All persons attending remotely shall identify any other person who is utilizing
their connection to view/listen to any portion of the proceeding.
15. The deponent is entitled to full and fair access to any exhibits upon which the
deponent may be examined, consistent with the provisions below.
(i) If Counsel for a party that is examining the witness appears remotely,
examining counsel shall mail physical copies of all documents that
exceed 25 pages (in total length including all pages in the complete
document and/or all pages in a document’s bates range) that may be
used during the deposition to the deponent, the deponent’s defending
counsel, and the other Party’s counsel (if different). If examining
counsel attends remotely, counsel shall so inform the deponent’s
counsel and the other Party’s counsel and confirm the appropriate
mailing address prior to mailing the documents. Counsel shall provide
tracking information for the package. Documents mailed pursuant to
this Paragraph shall be delivered by 12:00 pm ET the business day
before the deposition. It is recognized that all documents that may be
used at a deposition will not be realized by examining counsel within
the timeframe necessary to overnight them the day before the
deposition. Therefore, it is possible that on some occasions a document
exceeding 25 pages will not be sent in a timely fashion. Counsel are
reminded that they are obligated to act in good faith and act in
accordance with the rules of ethics and the obligations of this Order.
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Counsel for the deponent and the other Party’s counsel shall confirm
receipt of the package by electronic mail. Every recipient of a mailed
package of potential deposition exhibits shall keep the package sealed
and shall only unseal the package on the record, on video, and during
the deposition when directed to do so by Counsel.
(ii) Counsel who appears remotely shall share electronic versions of the
documents that he or she may be used during the deposition prior to
the start of the deposition with the court reporter via electronic mail or
other secure shared platform like Box or Dropbox.
(iii) In addition, to prevent confidential documents from being downloaded
by witnesses, electronic exhibits may only be shared with the witness
through the Remote Deposition Technology (to be agreed upon in
advance) with the download function disabled.
(iv) Counsel who appears remotely shall share electronic exhibits with
opposing counsel and counsel for the deponent, if different through the
Remote Deposition Technology.
16. Any objection to the presentation of deposition exhibits at trial is reserved.
17. With the exception of official deposition exhibits, all deponents and counsel
receiving documents before a deposition shall either (a) return the documents to the counsel
who sent them originally within five (5) business days following the completion of the
deposition; or (b) destroy the documents within two (2) business days following the completion
of the deposition. With the exception of official deposition exhibits, all deponents and counsel
receiving documents before a deposition shall not view or retain the unused documents in any
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manner. The counsel that sent the documents prior to the deposition shall include a pre-paid
return shipping label in any package of documents mailed.
18. The counsel that sent the documents prior to the deposition shall include a pre-
paid return shipping label in any package of documents mailed.
19. If a party or deponent produces greater than 25 page documents within three (3)
days of the deposition, making the use of these documents in hard copy form at the remote
deposition impracticable, these documents may be used in electronic form during the
deposition. In this circumstance, during the deposition, full and complete copies of deposition
exhibits must be provided to the witness and counsel who are attending the deposition via the
Remote Deposition Technology through secure file sharing software (with download disabled
for the witnesses). The fact that a witness was provided with an electronic copy of an exhibit
will be an insufficient basis to object to the admissibility of that exhibit at trial.
20. If a document is created during testimony or if markings are placed on an exhibit
during testimony and a party wants to offer the created or marked document as an exhibit, the
party shall do so in the traditional fashion, with an exhibit number assigned to the document
noted by the court reporter and stated on the record. If possible, the document shall be uploaded
or sent to each party and to the court reporter while the deposition is proceeding in session. If it
is not possible for the document to be provided to all parties while the deposition is proceeding
in session, it shall be displayed on screen such that there is full video documentation of the
document and its markings. The document shall then be provided to all counsel and the court
reporter as soon as practicable following the deposition and counsel shall discuss the planned
distribution prior to conclusion of the deposition.
C. Remote Depositions of Plaintiffs’ Healthcare Providers
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1. The depositions of Plaintiffs’ Healthcare Providers will presumptively occur
remotely as set forth in Section C of this Order. However, either party reserves the right to
notice any of Plaintiffs’ Healthcare Providers’ deposition in-person and/or request that any of
Plaintiffs’ Healthcare Providers present for deposition in-person, including, but not limited to,
circumstances where Plaintiffs’ Healthcare Provider (1) served as an expert witness in the
National Vaccine Injury Compensation Program on behalf of any plaintiff in any Gardasil
litigation; (2) who may be serving as a consulting expert on behalf of Plaintiffs in any Gardasil
litigation; or (3) has been disclosed as an expert witness on behalf in any plaintiff in any Gardasil
litigation. Where a party desires to depose any of Plaintiffs’ Healthcare Providers in person, the
parties agree to meet and confer in good faith. If the parties meet and confer and are unable to
reach agreement on whether said deposition of Plaintiffs’ Healthcare Provider shall occur in
person, either party may seek relief from the Court. Nothing in this Order prevents either party
from attending Plaintiffs’ Healthcare Providers’ depositions remotely, even where the other
party appears in person.
2. Whether remote or in person, deposition attendance will be limited to the
deponent, the court reporter, and the videographer, Plaintiff’s counsel, Merck’s counsel, and
the witness’s and/or the healthcare facility’s counsel. Absent agreement, any other person
attending remotely must be an attorney or non-attorney staff of a PSC firm or Defendants’
counsel and must be identified on the record, including name of the party they represent and the
law firm or company by which they are employed.
3. The deposition notice for any Remote Deposition pursuant to Fed. R. Civ. P. 30
must list the location(s) (city and state) from where the witness, the court reporter, and the
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videographer will attend, subject to change upon notice in writing to the witness, the court
reporter, and the videographer.
4. The parties agree to the following terms of a Remote Deposition of Plaintiffs’
Healthcare Providers:
a. The parties agree to work in a collaborative manner in attempting to schedule
the Remote Deposition.
b. Any Remote Deposition taken pursuant to this Court’s Orders must comply
with the requirements in Fed. R. Civ. P. 30(b)(5). This includes the
requirements that, (a) “[u]nless the parties stipulate otherwise, a deposition
must be conducted before an officer appointed or designated under Rule 28,”
and (b) that officer must administer the oath or affirmation to the deponent.
A Remote Deposition taken pursuant to this Order shall be deemed to have
been taken before an appropriate officer despite the court reporter not being
in the same physical location as the witness—as long as the court reporter
attends the deposition by the same remote means as other participants and is
able to hear and communicate with other attendees. The parties agree that
the court reporter is an “Officer” as defined by Federal Rule of Civil
Procedure 28(a)(2) and shall be permitted to administer the oath to the
deponent via the videoconference. The Parties agree not to challenge the
validity of any oath administered by the court reporter, even if the court
reporter is not a notary public in the state where the deponent resides.
c. Notices for Remote Depositions must include the Remote Deposition
Vendor and contain a general description of how those attending may access
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the remote connection being utilized (e.g., GoToMeeting, Zoom, WebEx).
The party that noticed the deposition shall be responsible for informing the
court reporting service and Remote Deposition Vendor of the date, time, and
needs of the depositions. To the extent a deposition is noticed as recorded by
video, the Noticing Party shall ensure a certified court videographer is
present for the deposition.
d. Nothing herein shall prohibit a party from contacting the court reporting
service or Remote Deposition Vendor.
e. The party noticing the deposition shall make best efforts to provide the
witness and all other attendees with detailed instructions regarding how to
participate in the Remote Deposition at least seven (7) calendar days before
the deposition.
f. The Party that noticed the Remote Deposition shall provide the Plaintiffs’
healthcare provider and/or the healthcare providers’ counsel with a copy of
this Order.
g. To host a Remote Deposition, a Remote Deposition Vendor must have
implemented adequate security measures to ensure the confidentiality of the
remote deposition (e.g., video and audio feeds, exhibits). These security
measures include using tools such as a “virtual waiting room” that allows the
court reporter to admit only individuals authorized to attend the deposition
and disabling the “record” feature in the Remote Deposition Technology for
the witness and attending attorneys. The Noticing Party and the Remote
Deposition Vendor must ensure that only registered participants and
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attendees are sent a link to join the deposition. No link should be posted on
a website or otherwise made publicly available. The Remote Deposition
Vendor shall maintain a list of all participants and attendees.
h. All deposition participants shall be reasonably familiar with the Remote
Deposition platform and any other technology necessary to the deposition.
To avoid unnecessary delays during the taking of the depositions, counsel
for the deponent and the deponent shall spend whatever time is necessary in
advance of the deposition to ensure that the deponent is reasonably fluent in
the use of the technology. The parties agree to work collaboratively and in
good faith to assess each deponent’s technological abilities and to
troubleshoot any issues in advance of the deposition so any adjustments can
be made. The parties also agree to work collaboratively to address and
troubleshoot technological issues that arise during a deposition and make
such provisions as are reasonable under the circumstances to address such
issues. The vendor providing the remote deposition services shall be
available to the deponent and counsel for the deponent, well in advance of
the scheduled deposition, to help explain and facilitate this process in order
to ensure the deposition proceeds as seamlessly as possible. This provision
shall not be interpreted to compel any party to proceed with a deposition
where the deponent cannot hear or understand the other participants or where
the participants cannot hear or understand the deponent or counsel.
i. Every deponent shall have technology sufficient to appear for a remote
deposition (e.g., a webcam and computer or telephone audio), and bandwidth
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sufficient to sustain the remote deposition. Noticing Counsel shall consult
with counsel for the deponent or, where applicable, the deponent’s office
prior to the deposition to ensure the deponent has the required technology. If
not, counsel noticing the deposition shall supply any necessary technology
that the deponent does not have.
j. At the beginning of the Remote Deposition, consistent with Rule 30(b)(5)(A)
of the Federal Rules of Civil Procedure, the officer responsible for
conducting the deposition shall begin the deposition with an on-the-record
statement that includes: (i) the officer’s name and company affiliation; (ii)
the date, time, and place of the deposition; (iii) the deponent’s name; (iv) the
officer’s administration of the oath or affirmation to the deponent; and (v)
the identity of all persons present.
k. At the time of the deposition, the deponent shall advise the court reporter of
his or her physical location. The witness should endeavor to participate in
the deposition from a quiet, well-lit, indoor location, while seated in front of
a neutral background, and facing the camera being used to broadcast the
witness. No participant shall substitute a “virtual background” for the actual
room in which a participant is located unless otherwise agreed to by the
parties. Nothing in this paragraph shall prohibit a deponent from using a
physical background during depositions. Participants must each have access
to a private, quiet, and secure room, which will be free of interruption and
where confidentiality of the deposition will be preserved. Unless counsel for
all parties consent to the presence of additional person(s), only counsel
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defending the deposition, the witness’s counsel (if different), and in-house
counsel for the witness is/are permitted to be in the same room as the witness
during remote testimony.
l. A videographer employed by the Remote Deposition Vendor will record the
witness’s deposition testimony, by the best technological means available,
including remote video capture/recording. With the exception of the
videographer and the court reporter, the depositions may not otherwise be
recorded electronically without the consent of the Parties. The fact that a
deposition was noticed to take place remotely, and was recorded remotely,
shall not, by itself, be a sufficient basis for preventing the remote deposition
from being admitted at trial with the same effect as a deposition video that
was recorded in-person.
m. The court reporter may be given a copy of the video recording of the
deposition and may review such video recording to improve the accuracy of
any written transcript.
n. Technical difficulties, including but not limited to pauses, lags, and/or
interruptions in Internet connection, shall be addressed as they would be in
any in-person deposition. The parties shall go off the record and attempt to
resolve the issue. Technical difficulties shall not result in waiver of
objections by any party. If the issue is not resolved within a reasonable
amount of time during the deposition, the parties may (1) extend the remote
deposition by an amount of time equal to the duration of the pause, lag,
and/or disruption, provided that the additional time is less than an hour; or
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(2) consider rescheduling the remote deposition for a later date, if the
additional time required is an hour or more. The court reporter and/or
Remote Deposition Vendor shall alert the participants if any participant is
disconnected from the deposition. If a participant is disconnected, the
deposition shall be stopped immediately and resumed only after any
connectivity issue is resolved.
5. If privileged information is disclosed during the deposition due to a technical
disruption, or to the extent any privileged conversation between a deponent and the deponent’s
counsel is captured by a videoconferencing or other recording device, to the fullest extent
permitted by Federal Rule of Evidence 502(d), such disclosure shall not be deemed a waiver of
privilege.
6. Plaintiff’s counsel and Defendants’ counsel may share the documents that may be
used during the deposition with the court reporter via electronic mail or other secure shared
platform like Box or Dropbox.
7. The deponent is entitled to full and fair access to any exhibits upon which the
deponent may be examined, consistent with the provisions below.
(i) During the deposition, full and complete copies of deposition
exhibits must be provided to the witness and counsel who are
attending the deposition via the Remote Deposition Technology
through secure file sharing software (with download disabled for the
witnesses). The fact that a witness was provided with an electronic
copy of an exhibit will be an insufficient basis to object to the
admissibility of that exhibit at trial.
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(ii) If medical records are used as deposition exhibits, they will bear an
LMI Bates stamp.
(iii) Plaintiff’s counsel and Defendants’ counsel shall share the
documents that may be used during the deposition with the court
reporter via electronic mail or other secure shared platform like Box
or Dropbox.
8. Plaintiffs’ counsel or Defendants’ counsel may at their discretion elect to mail
physical copies of documents that may be used during the deposition to the deponent, the
deponent’s defending counsel, and the other Party’s counsel. If counsel elects to mail physical
copies of documents, counsel shall so inform the deponent’s counsel or, where applicable, the
deponent’s office and the other Party’s counsel and confirm the appropriate mailing address
prior to mailing the documents. Counsel shall provide tracking information for the package.
Documents mailed pursuant to this Paragraph shall be delivered by 12:00 pm ET the business
day before the deposition. Counsel for the deponent and the other Party’s counsel shall confirm
receipt of the package by electronic mail. Every recipient of a mailed package of potential
deposition exhibits shall keep the package sealed and shall only unseal the package on the
record, on video, and during the deposition when directed to do so by Counsel. Counsel are
reminded that they are obligated to act in good faith and act in accordance with the rules of
ethics and the obligations of this Order.
9. With the exception of official deposition exhibits, all deponents and counsel
receiving documents before a deposition shall either (a) return the documents to the counsel
who sent them originally within five (5) business days following the completion of the
deposition; or (b) destroy the documents within two (2) business days following the completion
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of the deposition. With the exception of official deposition exhibits, all deponents and counsel
receiving documents before a deposition shall not view or retain the unused documents in any
manner. The counsel that sent the documents prior to the deposition shall include a pre-paid
return shipping label in any package of documents mailed to a deponent.
SO ORDERED.
Signed: October 30, 2023
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