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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)

          MEMORANDUM AND ORDER

          Teresa J. James U.S. Magistrate Judge.

         This matter is before the Court on Non-Party CVS Health Corporation's Motion For a Protective Order to Modify the Subpoena Directed to Non-Party CVS Health Corporation or, in the Alternative, to Quash (ECF No. 1158). CVS Health Corporation seeks an order modifying or quashing 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 grant in part and deny in part CVS's motion.

         I. Relevant Background

         The Court briefly summarizes the events leading to this motion.[1] CVS and Class Plaintiffs have been communicating about a deposition subpoena since July 18, 2018. Class Plaintiffs first provided CVS with proposed 30(b)(6) topics on August 17, 2018. The parties met and conferred on August 22, September 10, and October 12, and corresponded on various other dates. While they were able to resolve some of CVS'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

         CVS argues each of the topics included in the subpoena should be modified or set aside to protect CVS from undue burden. CVS also contends Class Plaintiffs should provide advance copies of documents the witness may be asked to review as suggested by this court's Deposition Guidelines, particularly in light of its status as a non-party. In addition, CVS 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 CVS fails to articulate undue burden and that its objections and proposed modifications of several topics are improper. Class Plaintiffs assert the 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 CVS with copies of documents they may use in the deposition, nor should they be required to pay any share of CVS's cost of compliance. Class Plaintiffs have agreed an extension of the deposition deadline is necessary.

         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

         CVS suggests new versions of six of the deposition topics, asserts two topics should be set aside, and argues it must be allowed more time to prepare its witness. CVS further argues that Class Plaintiffs must provide in advance documents they may use at the deposition and should bear the costs of CVS's compliance. The Court considers each in turn.

         A. Topics

         1. Topic No. 1

         CVS objects to this topic as not being “proportional to the level of specificity provided by the Plaintiffs regarding what they want to know.”[18] While that phrase is difficult to parse, it appears that CVS is objecting to the topic because it uses the phrase “including, but not limited to” in requesting information related to CVS's negotiations with Mylan and other EAI producers. CVS offers its own version of Topic No. 1.

         Class Plaintiffs disagree that their use of the phrase “including, but not limited to” causes the request to be overbroad. Class Plaintiffs disagree, citing Heartland Surgical Specialty Hospital v. Midwest Division, Inc., [19] 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.”[20] 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.”[21] 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 No. 1 is not overbroad.

         The Court denies the motion insofar as it seeks to quash or modify subpoena Topic No. 1.

         2. Topic No. 2

         CVS objects as irrelevant the request in Topic No. 2 for testimony on contract negotiations with producers of other EAI devices because it limits the scope of the producers but not the devices. Even if the information is relevant, CVS argues it is disproportional because it would “increase the burden on CVS by orders of magnitude.”[22] CVS offers no affidavit or other evidentiary support for its conclusory assertion. And as with Topic No. 1, CVS objects to the phrase “including, but not limited to.”

         Class Plaintiffs point to the Court's previous holding, in ruling on their document subpoena to CVS, that “[t]he similarity or dissimilarity in [a PBM's] handling of EAI devices and other products is clearly relevant to Plaintiffs' claims.”[23] Class Plaintiffs also point to their months of negotiations with CVS over the confines and parameters of CVS's production pursuant to Class Plaintiffs' document subpoena. As Class Plaintiffs point out, CVS knows what documents it agreed to and did produce pursuant to the subpoena as relevant to contract negotiations. Regarding proportionality, CVS's unsupported assertion about the magnitude of its efforts garners no traction. CVS does not explain if and how its contract negotiations differ depending on what drug it is considering. As for CVS's objection to the phrase “including, but not limited to, ” the Court addressed that in its discussion of Topic No. 1. The Court denies the motion insofar as it seeks to preclude other prescription drugs from the scope of Topic 2.

         3. Topic Nos. 3 and 4

         CVS proposes alternative versions of Topic Nos. 3 and 4 to address its objection that the phrase “formulary coverage decisions” is not defined and should be interpreted to apply only to CVS's national, standard commercial Performance Drug Lists. In addition, CVS argues that it should not be required to disclose the identities of the members of its external P&T committee for the same reasons that the Court permitted CVS to redact those names from its documents.[24] Finally, CVS raises the same issue regarding non-EAI devices as in Topic No. 2.

         Class Plaintiffs assert the phrase is easily understood and the relevance of the information is readily apparent. They also contend the identities of CVS's P&T committee members will be protected by the Third ...


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