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

United States District Court, D. Kansas

July 30, 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 Change Healthcare, Inc. (ECF No. 462). Class Plaintiffs seek an order requiring Non-Party Change Healthcare to produce documents responsive to Plaintiffs' subpoena served on January 29, 2018. Change Healthcare opposes the motion. As set forth below, the Court will grant Plaintiffs' motion with one modification.

         I. Relevant Background

         On January 29, 2018, Plaintiffs served a document subpoena on Change Healthcare pursuant to Fed.R.Civ.P. 45. Change Healthcare served objections to the subpoena on February 12, 2018. To date, Change Healthcare has produced no documents responsive to the subpoena.

         Plaintiffs and Change Healthcare agree that counsel have conferred by telephone on four occasions and have exchanged letters regarding their clients' respective positions on the subpoena. The Court finds they have complied with the requirements of D. Kan. R. 37.2.

         II. Summary of the Parties' Arguments

         Plaintiffs argue that Change Healthcare's objections are improper because they are boilerplate and conclusory in nature and do not address the substance of any request. Plaintiffs contend their subpoena is narrowly tailored and seeks relevant documents within Change Healthcare's possession and control. Change Healthcare contends its objections are valid, Plaintiffs are able to obtain the documents they seek from others, the current Protective Order in this case does not provide it with adequate protection, and if the Court orders compliance Plaintiffs should be required to pay Change Healthcare's fees and costs.

         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

         Change Healthcare has posed no objection that any of the documents Plaintiffs seek are irrelevant, and has thus waived the objection.[12] As the Court has found with respect to subpoenas Plaintiffs have served on other non-parties containing these same documents requests, relevancy is readily apparent. As an entity that administers the rebate negotiation process for a consortium of twelve state Medicaid programs, [13] the subpoena requests documents in five categories relevant to the core allegations at issue and within Change Healthcare'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 materials; (4) identification of Change Healthcare personnel and departments responsible for EAI-related decisions; and (5) documents produced to governmental entities concerning Epipen investigations and litigation. The Court finds the requested documents are relevant to Plaintiffs' claims.

         V. Change Healthcare's Objections

         In its objections, Change Healthcare does not address any of the fourteen individual document requests, but instead states objections to the subpoena in toto. In its response to the instant motion, Change Healthcare argues it was not required to make specific objections because every one of the requests is overly broad on its face, thereby relieving Change Healthcare of “the burden . . . to explain why they should not have to respond. . . . Nothing more was required from Change Healthcare.”[14]

         Change Healthcare provides little substance with its objections. With respect to its objection that the subpoena is overly broad and unduly burdensome in both time and scope, Change Healthcare asserts (1) a request for documents from 2007 would “require a tedious effort and expensive review of documents to determine their relevance, if any;”[15] (2) “each of the Document Requests covers an extremely broad range of categories;”[16] and (3) the subpoena “appears to call for a tremendous production of documents and does not allow sufficient time for their gathering.”[17] With respect to expense, Change Healthcare objects that the “burden and expense of collecting, reviewing, and producing the documents in response to the Subpoena as currently phrased would greatly outweigh any conceivable benefit to the Consumer Class Cases Plaintiffs.”[18]

         As the Court has noted, the scope of discovery under a subpoena is the same as party discovery permitted by Rule 26.[19] Thus, while the Court recognizes that “[c]ompliance with a subpoena inevitably involves some measure of burden to the producing party, . . . the court will not deny a party access to relevant discovery because compliance inconveniences a nonparty or subjects it to some expense.”[20] As with Rule 26 discovery, one objecting to a subpoena has the burden to show compliance would cause undue burden, typically by presenting an affidavit or other evidentiary proof of the time and expense involved in responding to the subpoena.[21]Change ...

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