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

United States District Court, D. Kansas

November 16, 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 Non-Party Prime Therapeutics LLC's Motion for Protective Order and to Modify or Quash Plaintiffs' Subpoena for a Rule 30(b)(6) Deposition (ECF No. 1139). Prime Therapeutics LLC primarily seeks an order quashing or modifying Class Plaintiffs' Rule 45(d)(3) deposition subpoena, along with an award of costs and expenses. Class Plaintiffs oppose the motion. As set forth below, the Court will deny Prime Therapeutic's motion.

         I. Relevant Background

         The Court briefly summarizes the events leading to this motion.[1] Class Plaintiffs first provided Prime with proposed 30(b)(6) topics on August 17, 2018. The parties met and conferred on August 31, September 19, and October 15, and corresponded on various other dates. While they were able to resolve some of Prime's objections to the list of topics, others remain. 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

         Prime contends Class Plaintiffs are obligated by this court's Deposition Guidelines to provide advance copies of documents the witness may be asked to review, argues certain of the topics Class Plaintiffs include in their 30(b)(6) deposition notice are overbroad and vague and must be narrowed or clarified, and seek to quash in toto two topics. In addition, Prime wants a delay in the deposition date and asks the Court to order Class Plaintiffs to pay its costs of responding to the subpoena.

         Class Plaintiffs contend their topics are clear, unambiguous, and narrowly tailored, and fall within topics the Court already has found relevant in this action. Accordingly, Class Plaintiffs oppose narrowing or quashing their subpoena. They further contend they are under no obligation to provide Prime with copies of documents they may use in the deposition, nor should they be required to pay any share of Prime's cost of compliance. Class Plaintiffs have agreed an extension of the deposition deadline is necessary, although not to the length of the extension Prime requests.

         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.”[2] Non-parties responding to Rule 45 subpoenas generally receive heightened protection from discovery abuses.[3]

         Federal Rule of Civil Procedure 45 governs both motions to compel compliance with and motions to quash a subpoena served on a non-party. 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]

         Pursuant to Federal Rule of Civil Procedure 26(c), a “court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]”[12] The decision to enter a protective order is within the court's broad discretion.[13]Despite this broad discretion, “a protective order is only warranted when the movant demonstrates that protection is necessary under a specific category set out in Rule 26(c).”[14] In addition, the party seeking a protective order bears the burden of establishing good cause.[15] The moving party must make “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.”[16] If in its discretion the court determines a protective order is warranted, the court has substantial latitude to devise an appropriate order after fairly weighing the parties' competing needs and interests.[17]

         IV. Analysis

         Prime argues that many of the deposition topics must be narrowed to preclude requests that are overbroad and/or unduly burdensome, two topics should be quashed, and it must be allowed more time to prepare its witness. Prime further argues that Class Plaintiffs must provide in advance documents they may use at the deposition and should bear the costs of Prime's compliance. The Court considers each in turn.

         A. Topics

         1. Whether all topics are overbroad and unduly burdensome

         Prime contends all topics are overbroad because they are not restricted to a specific, reasonable time period. Prime argues the topics should be limited to 2013-2017 because: (1) in response to its document subpoena, Class Plaintiffs agreed that Prime could produce emails from 2012 to the present, and (2) Class Plaintiffs limited the time period to 2013-2017 in a deposition subpoena to another non-party PBM. Class Plaintiffs are willing to limit the relevant time period covered by the notice to January 1, 2009 through December 31, 2017.

         The Court agrees that a time frame is necessary, but finds that Prime has failed to provide a compelling basis for the Court to adopt its proposal. In ruling on a motion to compel regarding the same document request Class Plaintiffs served on Prime, the Court found reasonable the period January 1, 2007 to the present “as it is coextensive with when Mylan acquired and continues to hold the rights to EpiPen.”[18] Prime offers no reason why the Court should view the deposition subpoena differently. Accordingly, the subpoena applies to the time period January 1, 2009 through December 31, 2017.

         2. Formulary coverage decisions

         Prime also objects to the inclusion of anything beyond its standard, national formularies in providing testimony on Topic Nos. 3-5 regarding its “formulary coverage decisions.” Prime asserts it would be impossible for its representative to be prepared to address the formularies its clients have chosen to adopt during the relevant time period. However, Prime provides no affidavit or other evidentiary support for its assertion.

         Prime has not provided sufficient facts to support a finding that it would suffer undue burden by complying with the subpoena as written for the topics that include “formulary coverage decisions.” Not only is the support for what burden it would suffer insufficient, but neither does the description of its formulary development explain why it cannot offer testimony on the formulary coverage decision issues sought in those topics. Class Plaintiffs ask for the internal deliberative process Prime employs (Topic No. 3), the factors Prime considers (Topic No.4), and Prime's own formulary coverage decisions (Topic No. 5). While the Court understands that Prime's clients can adapt a formulary to fit their own needs, Prime has offered no evidence to distinguish between the internal deliberative process it uses for its standard, national formulary and custom formularies. Accordingly, the Court denies the motion insofar as it seeks to modify Topic Nos. 3-5 regarding Prime's formulary coverage decisions relating to EAI devices.

         3. Non-EpiPen device ...

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