It will be a multi-billion verdict, if it reaches that point -- which is why, for over a decade, I've predicted that there will be a confidential settlement, on the eve of trial. [We did predict that German Merck would be required to turn over this financial data, back in April 2026.]
Here's the latest: US Merck will indeed obtain updated financial data, from German Merck -- as a way to estimate what these damages might be, at that future trial.
. . .For the following reasons, the Court finds that Plaintiff [US Merck] is entitled to the discovery it seeks.
First, Plaintiff seeks only updated financial information of the same scope and form as Defendant [German Merck] previously produced. Updating the financial information at this point is appropriate to ensure that the damages theories are fully explored in the event of trial. Thomas & Betts v. Richards Mfg. Co., No. 01-4677, 2010 WL 2400151, at *4 (D.N.J. June 10, 2010) (finding that the “[p]laintiff correctly assert[ed] that no showing of cause is necessary to compel a party to update information already deemed discoverable”). Plaintiff seeks disgorgement as a potential remedy in this matter. Indeed, that was the basis for the Defendant’s production of the four spreadsheets covering financial information to 2016 and 2017. The requested information is plainly relevant so that Plaintiff may have a fair opportunity to prove Defendant’s sales, and to respond to any showing by Defendant as to its costs and deductions, the updated information. Auto Konnect, LLC v. BMW of N. Am., LLC, No. 18-14019, 2019 WL 12338328, at *3 (E.D. Mich. Sept. 24, 2019) (stating, without deciding the issue of whether New Jersey law recognizes disgorgement as a theory of recovery under the plaintiff’s claims, that discovery regarding the defendant’s profits must be turned over); AdvanSix Inc., 2023 WL 179963, at *2 (permitting parties to seek discovery on issues that “may be in the case”).
Second, Defendant’s argument that Plaintiff’s “request would require reopening discovery into facts and expert opinions relevant to both liability and damages since 2017” is unpersuasive. D.E. 336, at 2. Courts in this district have granted similar requests for updated financial information without reopening discovery. See Thomas & Betts, 2010 WL 2400151, at *4-6 (granting request for updated financial information but denying two other requests because they were essentially requests to reopen discovery). Additionally, Defendant does not explain how the burden of production outweighs the probative value of an updated damages calculation. And given that the updated information is data that is gleaned in the ordinary course of business, to be produced in the same format as the prior production, the Court does not independently identify any undue burden on Defendant.
Finally, the Court respectfully disagrees with Defendant that Plaintiff must first satisfy the good-cause standard. The good cause standard is drawn from Rule 16(b)(4), and applies to modifying a schedule. Plaintiff is not seeking to modify a schedule or reopen discovery, at least in the sense that the additional discovery is extensive or requires a considerable period of time to complete, thereby affecting subsequent deadlines.Plaintiff instead merely seeks updated financial information in an abbreviated format that is similar to the prior production. As such, Rule 26(e)(1)(b) governs Plaintiff’s request, and contains no such good-cause requirement. . . .
IT IS ON THIS 9TH DAY OF JULY 2026, ORDERED THAT: Defendant [German Merck] shall produce to [US Merck] Plaintiffs updated financial data in this matter. . . .
Now you know -- onward, on a steamy overcast Thursday -- but this case should settle, as we've long opined. And in fact, there are additional mediation dates on the calendar, to that specific end. Smile. . . .
नमस्ते
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