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

United States District Court, D. Kansas

November 19, 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 the Subpoenas Directed to Non-Parties Horizon Blue Cross Blue Shield of New Jersey and Aetna (ECF No. 1114). Class Plaintiffs seek an order requiring non-parties Horizon Blue Cross Blue Shield of New Jersey, Inc. and Aetna Inc. to attend duly noticed depositions pursuant to subpoenas. Horizon and Aetna (“the Non-Parties”) oppose the motion. As set forth below, the Court will grant Plaintiffs' motion.

         I. Relevant Background

         Since the end of July and through early October 2018, Class Plaintiffs' counsel attempted to and ultimately did meet and confer with the law firm that represents both Horizon and Aetna concerning a Rule 30(b)(6) deposition of each non-party. Much of that time involved Class Plaintiffs trying to get the attention of the Non-Parties. Eventually the discussions turned to dates, locations, and deposition topics. Ultimately, after the Non-Parties refused to produce witnesses for deposition, Class Plaintiffs issued a notice and served a subpoena on each organization.

         Aetna sent Class Plaintiffs email objections to the subpoena, asked Class Plaintiffs to withdraw the subpoena, and stated it would not produce a witness for deposition without court order. Likewise, Horizon sent email objections and asked Class Plaintiffs to withdraw the subpoena. Class Plaintiffs sent one last letter to Horizon but received no reply. On October 9, 2018, five days after Aetna had been noticed for deposition (but did not appear) and on the day of Horizon's noticed deposition, Class Plaintiffs filed the instant motion. The Court finds Class Plaintiffs have complied with the requirements of D. Kan. R. 37.2.

         II. Summary of the Parties' Arguments

         Class Plaintiffs argue the Non-Parties have discoverable knowledge and information that Class Plaintiffs are entitled to explore in depositions, and that the subpoenas they served are not unduly burdensome and do not seek duplicative discovery or privileged information. The Non-Parties, in their joint response, assert the subpoenas should be quashed because compliance would be burdensome, Class Plaintiffs likely have already received many documents from Mylan and from these non-parties, and the non-parties do not have information about some of the topics.

         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. Analysis

         Class Plaintiffs represent that Aetna and Blue Cross Blue Shield are “two of the largest insurers in the United States and both had significant relationships with Mylan and Sanofi with respect to the epinephrine devices at issue in this case during the relevant time period.”[12] The Non-Parties do not dispute this characterization, nor do they argue that Class Plaintiffs seek to obtain testimony on irrelevant topics. Having reviewed the topics listed in the subpoena, the Court finds all are relevant to the claims in this action.[13]

         The Non-Parties' first argument ignores their burden in the face of relevant discovery requests and is among their many conclusory contentions. They assert that Plaintiffs have failed to show why the Non-Parties “should be forced to sit for unnecessary depositions” to obtain information that is beyond the scope of their agreed-upon productions. As support, they point to separate letters from counsel on behalf of Aetna and Horizon which merely state that the subpoenas seek information beyond their agreement with Class Plaintiffs. Apparently the Non-Parties take this as license to fail to look for and as an excuse to claim they do not have the information.[14] What Class Plaintiffs explain, however, is the agreement the Non-Parties ...

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