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

United States District Court, D. Kansas

June 20, 2018

IN RE EpiPen Epinephrine Injection, USP Marketing, Sales Practices and Antitrust Litigation This Document Applies to All Cases


          Teresa J. James U.S. Magistrate Judge

         This matter is before the Court on Class Plaintiffs' Motion to Compel Compliance with Subpoena Directed to Non-Party CVS Health Corporation (ECF No. 429). Class Plaintiffs seek an order requiring Non-Party CVS to produce documents responsive to Plaintiffs' subpoena served on December 11, 2017. CVS opposes the motion. As set forth below, the Court will grant in part and deny in part Plaintiffs' motion.

         I. Relevant Background

         On January 12, 2018, CVS served its objections and responses to Plaintiffs' subpoena, and on January 31 made a limited production of 28 responsive documents. Plaintiffs and CVS agree their counsel met and conferred on five occasions, four of which followed CVS's document production. Each side made one final proposal before Plaintiffs filed the instant motion. The Court finds that Plaintiffs and CVS have complied with the requirements of D. Kan. R. 37.2.

         II. Summary of the Parties' Arguments

         While having agreed to many of CVS's proposed limitations, Plaintiffs contend CVS has made improper boilerplate and blanket objections that should be overruled. CVS describes the outstanding disagreements as relatively narrow, but argues it would suffer undue burden if forced to produce everything Plaintiffs demand. CVS also objects to producing documents that predate 2014; objects to producing custodial emails and the full extent of requested data regarding rebates CVS has paid to its clients; seeks to redact certain identities and materials; seeks access limited to outside counsel for certain documents; and asks the Court to require Plaintiffs to pay its costs of compliance.

         III. Legal Standard

         In issuing a subpoena, a party must “take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.”[1] Non-parties responding to Rule 45 subpoenas generally receive heightened protection from discovery abuses.[2]

         Federal Rule of Civil Procedure 45 governs both motions to compel compliance with and motions to quash a subpoena served on a non-party.[3] Under Rule 45(d)(2)(B), if the entity commanded to produce documents serves written objections to the subpoena, the serving party may seek compliance by filing a motion to compel production of the documents. If the non-party wishes to challenge the subpoena, it does so by filing a motion to quash. Rule 45(d)(3) sets forth circumstances under which a court must quash or modify a subpoena, including when the subpoena “requires disclosure of privileged or other protected matter, if no exception or waiver applies, ” and when the subpoena “subjects a person to undue burden.”[4] The rule also allows a court discretion to quash or modify a subpoena that requires the disclosure of a “trade secret or other confidential research, development, or commercial information.”[5]

         “The scope of discovery under a subpoena is the same as party discovery permitted by Fed.R.Civ.P. 26.”[6] In other words, the relevancy standards set forth in Rule 26 define the permissible scope of a Rule 45 subpoena. 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.[7] Information still “need not be admissible in evidence to be discoverable.”[8] 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.[9] 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.[10] Relevancy determinations are generally made on a case-by-case basis.[11]

         IV. Relevancy

         CVS maintains two narrow objections on relevancy grounds. The first relates to the time period covered by the subpoena, which CVS argues should be limited to 2013 to 2017. CVS points out that Plaintiffs' consolidated amended complaint alleges CVS's PBM subsidiary Caremark began excluding EAIs from its formulary in 2014, and first excluded a drug of any kind from its formulary in 2013. In their reply, Class Plaintiffs assert CVS selected 2014 as an arbitrary cutoff and did not deny making EAI formulary placement or incentive decisions prior to that year. Although the Court has found 2007 to be a reasonable starting point with respect to subpoenas Plaintiffs have served on other non-parties with identical requests, in this instance the Court finds CVS has made the better argument. As a non-party, CVS has no obligation to demonstrate when it began making formulary placement or incentive decisions. Neither the allegations of Plaintiffs' consolidated amended complaint nor Plaintiffs' arguments in this motion support a compelling basis for CVS to produce documents in response to the subpoena that predate 2013.

         CVS's second relevancy objection relates to (1) the identities of CVS's external Pharmacy and Therapeutics (“P&T”) Committee members, and (2) material concerning drugs other than EAI devices. CVS represents, through an affidavit of an in-house lawyer, that members of the Caremark National P&T Committee are not employees of CVS but comprise an external advisory board of experts whose identity CVS guards for the purpose of avoiding conflicts of interest.[12] In fact, within Caremark fewer than twenty employees know the committee members' identity. Plaintiffs offer no argument in reply. The Court finds the identity of the external P&T Committee members is not relevant on its face, and Plaintiffs have not otherwise demonstrated its relevancy.

         CVS argues it should be allowed to redact information about products other than EAIs from the documents it has agreed to produce. Because Plaintiffs make no claims concerning any other class of drug, CVS contends any of its internal discussions regarding other products is irrelevant. The Court disagrees with CVS's assessment, which is unsupported by anything other than its conclusory statement. The similarity or dissimilarity in CVS's handling of EAI devices and other products is clearly relevant to Plaintiffs' claims. And as Plaintiffs point out, CVS has the option of designating material as “Highly Confidential” pursuant to the Third Amended Stipulated Protective Order.

         With these two exceptions, the relevancy of the remaining requested information is readily apparent. Plaintiffs allege CVS is a PBM conspirator in the alleged scheme described in their consolidated amended complaint. As such, the subpoena requests documents in four categories, relevant to the core allegations at issue and within CVS's possession. The categories include the following: (1) EAI-related incentives and rebates, formulary placement and decisions, attendant EAI-related incentive, consideration and cost data, and EAI-related budgeting plans and forecasting; (2) EAI market, competitive conditions, and demand; (3) EAI- related marketing and other presentation ...

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