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

United States District Court, D. Kansas

July 3, 2018

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



         This matter is before the Court on Class Plaintiffs' Motion to Compel Compliance with Subpoena Directed to Non-Party Express Scripts Holding Company (ECF No. 430). Class Plaintiffs seek an order requiring Non-Party Express Scripts to produce documents responsive to Plaintiffs' subpoena served on December 11, 2017. Express Scripts opposes the motion. As set forth below, the Court will grant in part and deny in part Plaintiffs' motion.

         I. Relevant Background

         On January 9, 2018, Express Scripts served its objections and responses to Plaintiffs' subpoena, and later made a limited production of six documents totaling fifteen pages. Plaintiffs and Express Scripts agree their counsel met and conferred on five occasions, and each side made one final proposal before Plaintiffs filed the instant motion. The Court finds that Plaintiffs and Express Scripts have complied with the requirements of D. Kan. R. 37.2.

         II. Summary of the Parties' Arguments

         In spite of the compromise positions each side has taken, in this motion Plaintiffs contend Express Scripts has made improper boilerplate and blanket objections that should be overruled. Express Scripts describes the outstanding disagreements as relatively narrow, but argues the subpoena requests are facially irrelevant and disproportional as written and defends the specificity and appropriateness of its objections. Express Scripts also argues the existing protective order in this case does not adequately protect its confidential documents. Finally, Express Scripts 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

         Express Scripts maintains two narrow objections on relevancy grounds. The first relates to the time period covered by the subpoena, which Express Scripts argues should be limited to 2013 to 2017. Express Scripts points out that Plaintiffs' consolidated amended complaint alleges that Mylan began to proactively pitch large rebates to PBMs in 2013, and that Express Scripts began excluding EAIs from its formulary in 2014. In their reply, Class Plaintiffs address only the allegations stated in their complaint against Mylan for conduct dating back to 2007, and make no additional factual allegations regarding Express Scripts. 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 Express Scripts has made the better argument. As a non-party, Express Scripts 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 Express Scripts to produce documents in response to the subpoena that predate 2013.

         Express Scripts' second relevancy objection relates to emails Plaintiffs seek regarding formulary placement, which Express Scripts claims it should not have to produce because “[f]ormulary placement is decided in committee meetings-not emails-so an email search is unwarranted.”[12] The Court is not persuaded by this argument. Internal communications concerning formulary placement are relevant and discoverable.

         With the exception of the objection to pre-2013 documents, the relevancy of the remaining requested information is readily apparent. Plaintiffs allege Express Scripts 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 Express Scripts' 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 materials; and (4) identification of Express Scripts personnel and departments responsible for EAI-related decisions. The Court finds the requested documents are relevant to Plaintiffs' claims.

         V. Compromise positions

         Following a series of meet and confer discussions, Plaintiffs proposed to limit the subpoena as follows: (1) non-redacted committee meeting minutes and documents related thereto for Express Scripts committees involved in formulary placement of EAI-Devices from 2009 to the present, (2) internal communications of three committee member positions relating to the internal decision making process with respect to EAI Drug Device formulary placement from 2007 to the present, (3) claims data from 2007 to the present, (4) rebate agreements between Express Scripts and certain non-party manufacturers from 2007 to the present, [13] and (5) rebate data for EAI Devices from 2009 to the present.[14] In a counter proposal Express Scripts describes as “largely mirror[ing]” the compromise Plaintiffs suggested, [15] Express Scripts offered to produce only redacted minutes and related documents, rebate agreements between Express Scripts, Inc. or Express Scripts Senior Care Holdings, Inc. and two non-party manufacturers, and “claims level data that correspond to related data fields.”[16] Although Plaintiffs' motion asks the Court to overrule Express Scripts' objections to the subpoena and compel Express Scripts to produce all documents responsive to each subpoena request, such an all-or-nothing request ignores the progress counsel made during their meet and confer sessions, progress which Plaintiffs frankly discuss in their ...

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