Unreported / Non-Citable
Background
Eli Lilly sues Adonis Health, Inc., which does business as Henry Meds, for false advertising and unfair competition. Lilly alleges that Henry advertises compounded tirzepatide as personalized while selling the same mass-compounded product to every patient. The trial judge dismissed Lilly's safety-and-efficacy claims but allowed the personalization claims to proceed, so a central factual issue is whether Henry kept selling mass-compounded product after the FDA ended the tirzepatide shortage.
The parties stipulated to an ESI Order. It allows sources to be added after conferral (section 4(b)) and leaves search methodology to the responding party after conferral (section 5). It also says a hyperlinked file is not part of the same document family as the document containing the link, though it may be requested with particularity (section 5), and it calls for conferral on production from collaboration platforms (section 7). Henry's production consisted mainly of custodial email, Google Drive and limited shared-drive documents, culled with search terms and technology-assisted review.
Lilly points to hundreds of automated notifications in Henry's production from Heap, Lucid, Figma, Asana and Codeless. They refer to items such as a "Tirzepatide Post Cut Off Contingency" task, a "Post Shortage Intake Flow" board, and a Figma comment asking whether to position copy as "Personalized." Lilly says the underlying documents were not produced. At a September 2, 2026 conference Henry confirmed it had not collected from those platforms, and it declared production substantially complete in mid-September. Fact discovery closes December 4, 2026.
The Court’s Holding
In a discovery order resolving a letter brief, Magistrate Judge Beeler granted Lilly's first request. Henry must collect from the five platforms, apply the parties' agreed search methodology adapted to each platform, and produce responsive, nonprivileged documents. It must substantially complete production by November 20, 2026, or by another date it agrees with Lilly. Within seven days the parties must confer under section 7 on mechanisms and parameters for each platform. The court suggested, for example, that Heap might be handled by exporting relevant charts and reports rather than by wholesale collection.
The court rejected Henry's argument that sections 5 and 7 supply the exclusive procedure. Section 5 addresses whether a linked file is part of a document's family. It does not exempt a repository from collection, and most of Lilly's examples were notifications rather than linked files. Section 7 addresses how production occurs, not whether it does. The duty to search a source likely to hold responsive material comes from Rules 26(g) and 34. The court found the request timely under section 4(b) and Lilly's showing specific rather than speculative. It noted that Henry had quantified no burden and said the schedule is a reason to proceed promptly. Any request to modify the schedule must go to the trial judge.
The court denied Lilly's second request, that Henry identify other unsearched ESI sources. It reasoned that the ESI Order's conferral process has worked and that Lilly identified no other specific source. If Lilly's review of the supplemental production reveals another source, it may use the section 4(b) process. A footnote describes a one-time written identification of platforms as a possible approach, but the court did not order it.
Key Takeaways
- A protocol's hyperlinked-file provision governs family treatment of linked documents; it does not excuse a party from collecting a repository that its own production shows holds responsive material.
- Automated notifications that name specific tasks, boards and drafts on a central issue can be specific evidence of uncollected documents, going beyond mere suspicion.
- A party resisting collection should support burden objections with competent evidence such as data volumes, costs and vendor timelines, which the court noted Henry did not offer.
- The order does not decide what the platforms actually contain or whether any given document is responsive. Platform-specific mechanics are left to the parties' conferral, and the schedule question remains with the trial judge.
Why It Matters
This is a magistrate judge's discovery order in a pending case, not a final judgment, and it has persuasive value at most. It is useful to practitioners for showing how a stipulated ESI protocol interacts with Rules 26(g) and 34 when notifications in a production reveal uncollected cloud sources.
Several matters remain open. They include the results of the collection, any dispute over mechanisms for each platform, a possible extension of the December 4, 2026 fact-discovery deadline (to be sought from the trial judge), and any later section 4(b) request for additional sources. The order does not address the merits of the personalization claims.