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In re EpiPen Epinephrine Injection, USP Marketing, Sales Practices and Antitrust Litigation

United States District Court, D. Kansas

April 2, 2018

IN RE EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation (This Document Applies to All Cases) MDL No. 2785

          MEMORANDUM AND ORDER

          TERESA J. JAMES U.S. MAGISTRATE JUDGE

         This matter is before the Court on The Mylan Defendants' Motion to Compel Discovery from Plaintiffs (ECF No. 285).[1] Pursuant to Fed.R.Civ.P. 37, Mylan seeks an order requiring Plaintiff Sanofi-Aventis U.S., LLC to (1) produce information on rebates Sanofi offered pharmacy benefit managers and third-party payors on branded pharmaceuticals that Sanofi sold in the United States, in response to Request No. 24 in Mylan's First Set of Document Requests to Sanofi and Interrogatory Nos. 15 and 16 in Mylan's First Set of Interrogatories to Sanofi, and (2) identify the formularies Sanofi alleges excluded its Auvi-Q® device by reason of Mylan's conduct, in response to Interrogatory No. 2.[2] As set forth below, the Court grants in part and denies in part Mylan's motion.

         I. Relevant Background

         On November 21, 2017, Mylan served its First Set of Interrogatories and First Set of Requests for Production on Sanofi.[3] Sanofi objected and responded to both sets of discovery, and the parties subsequently engaged in extensive written and oral communication in an attempt to resolve their differences. Based on the parties' efforts, the Court finds they have complied with the requirements of D. Kan. R. 37.2.

         II. Summary of the Parties' Arguments

         Sanofi Rebates

         Mylan argues it is entitled to show that its EpiPen® rebates were pro-competitive and common in the pharmaceutical industry when Auvi-Q® was being sold. To that end, Mylan propounded three discovery requests seeking information on rebates Sanofi has paid. In RFP 24, Mylan seeks documents “relating to any contract, agreement, bid or offer” under which Sanofi offered rebates to any PBM or Payor for any of its products. Interrogatory 15 seeks a description of contracts and bid grids in which Sanofi offered a PBM or Payor “a rebate greater than or equal to 30% for any of [its] products.” Finally, Interrogatory 16 seeks a description of contracts or bid grids in which Sanofi offered a PBM or Payor a rebate contingent on exclusivity or competing products being restricted.

         Sanofi argues that Mylan's requests are overbroad and not proportional to the needs of this case. Sanofi points out it has provided discovery showing rebates Sanofi was forced to offer on other products to get Auvi-Q® access to the market, and contends that an appropriate limit is other pharmaceutical products where Sanofi had most of the sales in a given drug class.

         Both Mylan and Sanofi offered compromises, which the Court considers to be the statement of their current positions regarding Sanofi rebates. Sanofi offered to provide discovery on rebates for the products where it had 85% or more of sales in a given year for a class of prescription drugs.[4] Mylan rejected that suggestion and proposes “that Sanofi produce rebate documents only for 12 products in the U.S. over a five-year period (2012-2016).”[5] Sanofi has likewise rejected Mylan's proposal.[6]

         Formularies

         Mylan also challenges Sanofi's answer to Interrogatory 2, which asks Sanofi to identify all formularies maintained by PBMs or third-party payors from which Sanofi contends Auvi-Q®was excluded or disadvantaged as a result of Mylan's conduct. Specifically, Mylan complains that although Sanofi identified which Payors excluded Auvi-Q®, it has not identified which Payors made that decision based on Mylan's conduct. Sanofi contends it has appropriately responded by producing business records as contemplated by Fed.R.Civ.P. 33(d), and that it has committed to supplementing based on its rolling document production.

         III. Legal Standard

         Federal Rule of Civil Procedure 26(b)(1) sets out the general scope of discovery and provides as follows:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.[7]

         Relevancy is to be “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on” any party's claim or defense.[8] Information still “need not be admissible in evidence to be discoverable.”[9] When the discovery sought appears relevant, the party resisting discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevancy as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevancy that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.[10] Conversely, when the relevancy of the discovery request is not readily apparent on its face, the party seeking the discovery has the burden to show the relevancy of the request.[11] Relevancy determinations are generally made on a case-by-case basis.[12]

         Conditional objections occur when “a party asserts objections, but then provides a response ‘subject to' or ‘without waiving' the stated objections.”[13]

         IV. Analysis

         A. Sanofi Rebates

         The Court finds the relevancy of the discovery called for in RFP 24 and Interrogatories 15 and 16 relating to rebates is apparent on its face. Although Sanofi strenuously argues that rebates it offered on other products in non-EAI markets under different circumstances and different market conditions is irrelevant, the Court disagrees. At a minimum, the requested discovery relates to the exclusive dealing claim Sanofi asserts. In his order ruling on Mylan's motion to dismiss, Judge Crabtree concluded that Sanofi's complaint “does not rely ‘solely on the exclusionary effect of [Mylan's] prices' to support its exclusive dealing claim based on Mylan's rebate program.”[14] Instead, in describing Sanofi's allegations in the light most favorable to Sanofi, Judge Crabtree wrote: “The Sanofi Complaint alleges that Mylan leveraged its greater than 90% market share by offering unprecedented rebates to ...


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