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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



         This matter is before the Court on Non-Party OptumRx, Inc.'s Motion Under Fed.R.Civ.P. 45(d)(3) to Quash Class Plaintiffs' Deposition Subpoena, or in the Alternative, for a Protective Order Under Fed.R.Civ.P. 26(c)(1) (ECF No. 1137). OptumRx seeks (1) an order quashing Class Plaintiffs' Rule 45(d)(3) deposition subpoena or, in the alternative, (2) a protective order narrowing the proposed topics and extending the time for compliance, and (3) an award of costs and expenses. Class Plaintiffs oppose the motion. As set forth below, the Court will deny OptumRx's motion.

         I. Relevant Background

         The Court briefly summarizes the events leading to this motion.[1] Class Plaintiffs first provided Optum with proposed 30(b)(6) topics on August 17, 2018. The parties met and conferred on September 6, September 20, October 5, October 12, and October 15, and corresponded on various other dates. While they were able to resolve some of Optum'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

         Optum asserts eight of the topics Class Plaintiffs include in their 30(b)(6) deposition notice are overbroad, seek irrelevant information, are vague and ambiguous, or seek information Optum should not be required to provide because Class Plaintiffs should obtain the requested information from Mylan. In addition, Optum contends Class Plaintiffs are obligated by this court's Deposition Guidelines to provide advance copies of documents the witness may be asked to review. Optum also wants Class Plaintiffs to pay the costs of responding to the subpoena. Finally, Optum wants to exclude certain counsel from the deposition.

         Class Plaintiffs contend their topics are clear, unambiguous, and narrowly tailored, and fall within topics the Court already has found relevant in this action. They further contend they are under no obligation to provide Optum with copies of documents they may use in the deposition, nor should they be required to pay any share of Optum's cost of compliance. Class Plaintiffs deny Optum will be prejudiced by counsel whose appearance Optum challenges.

         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

         Optum argues that eight of the deposition topics are impermissibly overbroad and/or vague and ambiguous, seek irrelevant information, or are not properly posed to a non-party. Optum further argues that Class Plaintiffs must provide in advance documents they may use at the deposition; and that Class Plaintiffs should bear the costs of Optum's compliance. In addition, Optum seeks to exclude from the deposition counsel whose presence Optum claims would be prejudicial. The Court considers each in turn.

         A. Topics

         1. Topic Nos. 1 and 2

         Optum objects to these topics as facially overbroad because they use the phrase “including, but not limited to” in requesting information related to Optum's negotiations with Mylan and other EAI producers. Optum also alleges the examples of the sort of information Class Plaintiffs seek are vague, and contends that because Class Plaintiffs have the benefit of discovery from Mylan (including Optum's contracts with Mylan), Class Plaintiffs should be able to identify more precisely the information they seek. In addition, Optum asserts that “suggestions, ” “proposals, ” “terms, ” “other financial incentives, ” and “any other product” are vague and ambiguous.

         Class Plaintiffs disagree that their use of the phrase “including, but not limited to” caused the requests to be overbroad. Interestingly, both sides cite the same case to support their opposing arguments regarding this phrase. Optum refers to a passage in Heartland Surgical Specialty Hospital v. Midwest Division, Inc., [18] in which the court found a notice would be impermissibly overbroad “if the notice list[ed] topics, but then indicate[d] that the listed topics are not exclusive.”[19] Class Plaintiffs point to the court's analysis of a challenged topic that uses the phrase in its request, “followed by an extensive example list of the records and reports for which information is sought by Defendants.”[20] In this instance, Class Plaintiffs' use of the phrase is much closer to the second reference: it is the example list that is non-exclusive, and not the topic list. The Court finds the phrase “including, but not limited to” in Topic Nos. 1 and 2 is not overbroad.

         Neither does the Court find the words and phrases quoted above are vague and ambiguous, nor is the request for “any” or “all” documents facially overbroad because those requests are otherwise limited. With respect to Optum's objection that the request for testimony on contract negotiations with producers of other EAI devices is overbroad, Class Plaintiffs state they have adopted the relevant group of contracts as Optum defined them. Optum does not dispute this position in its reply.

         The Court denies the motion insofar as it seeks to quash or modify subpoena Topic Nos. 1 and 2.

         2. Topic Nos. 3-5

         Optum objects that each of these topics seeks irrelevant information. Specifically, Optum contends Topic Nos. 3-5, which address formulary coverage decisions, should be limited to information about EAI devices. Additionally, in Topic No. 5 Optum urges the Court to find the word “prices” (in the phrase “effect of EpiPen prices increases”) vague because different prices exist at various levels of the distribution chain, and argues it is overbroad in seeking information for regions outside the United States because all named Plaintiffs are American citizens whose claims turn on federal or state statutes.

         Class Plaintiffs explain they are unable to limit their inquiry to particular points in the distribution chain because they seek to learn whether a price increase at any point was relevant to Optum's consideration for formulary placement. And with respect to their request for formulary decisions outside the United States, Class Plaintiffs note that Optum's international decision-making may have had an effect on decisions implicating distribution in the United States.

         As the Court noted in its order ruling on Class Plaintiffs' motion to compel related to their document subpoena to Optum, the legal standard for review of Optum's objections based on relevancy is necessarily ...

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