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In re Subpoena of Works

United States District Court, D. Kansas

December 21, 2018

IN RE SUBPOENA OF JUSTIN WORKS, as issued in IN RE (EpiPen Epinephrine Injection, USP) by the United States District Court for the District of Kansas

          MEMORANDUM AND ORDER

          TERESA J. JAMES U.S. MAGISTRATE JUDGE.

         This matter is before the Court on Non-Party Justin Works' Motion to Quash Subpoena (ECF No. 1). Mr. Works seeks an order quashing a Rule 45 subpoena served on him by Mylan Inc. and Mylan Specialty L.P. (“Mylan”). Mylan opposes the motion. As set forth below, the Court will deny the motion.

         I. Relevant Background

         On October 23, 2018, Mylan served a Rule 45 deposition subpoena on Justin Works (“movant”) in Seattle, Washington, where he lives and works. The subpoena directed him to appear for deposition one week later. On October 29, 2018, in the Western District of Washington, movant filed both this motion and a motion to transfer to the District of Kansas. On November 13, 2018, Mylan filed a response consenting to the transfer and opposing the motion to quash. The motion to transfer was granted, and on November 26, 2018, the case was transferred to this District.[1]

         Mylan seeks to question movant about economic consulting work he and his then-employer Analysis Group, Inc. performed for Sanofi in 2011 and 2012 relating to epinephrine auto-injectors.[2] Mylan asserts Sanofi retained AGI to research Auvi-Q pricing, marketing, formulary placement, and projected success before putting it on the market. Mylan seeks to obtain evidence to support its contention that Sanofi's understanding of commercial realities was flawed, and that flawed understanding was informed by AGI's reports. Mylan issued a document subpoena to AGI in January 2018, which AGI resisted, and ultimately its scope was determined by the undersigned Magistrate Judge in the Court's August 27, 2018 ruling on Mylan's motion to compel.[3] Mylan moved for review of that ruling[4] and began communicating with AGI's counsel in an effort to schedule a deposition of movant. Despite repeated requests, it was not until October 24, 2018, six days before the noticed deposition, that AGI's counsel confirmed he represents movant and informed Mylan that movant intended to file this motion. Given the history of Mylan's efforts to obtain discovery first from AGI and now from movant, the Court finds the parties have complied with the requirements of D. Kan. R. 37.2.[5]

         II. Summary of the Parties' Arguments

         Movant seeks an order quashing the subpoena under the required grounds set forth in Rule 45(d)(3)(A)(i), (iii), and (iv), and under the permissive basis found in Rule 45(d)(3)(B)(ii). Movant contends Mylan's subpoena should be quashed because he was not afforded adequate time to prepare and make himself available for the deposition on the date it was noticed. He urges the Court to apply the same analysis articulated in the order ruling on Mylan's motion to compel AGI, which he contends will shield him from a deposition. Finally, he argues that his deposition would yield little benefit to Mylan because it has gathered substantial information from his former employer, AGI.

         Mylan asserts that it began trying to schedule this deposition one month in advance and offered flexibility on the date. Mylan also contends that movant's arguments concerning burden and alleged protected information fail because movant offers nothing more than conclusory objections without affidavit. Finally, Mylan disputes that movant is an unretained expert, thus making unavailable the objection asserted by AGI.

         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.”[6] Non-parties responding to Rule 45 subpoenas generally receive heightened protection from discovery abuses.[7]

         Rule 45(d)(3) sets forth circumstances under which a court must quash or modify a subpoena, including when the subpoena “fails to allow a reasonable time to comply, ” “requires disclosure of privileged or other protected matter, if no exception or waiver applies, ” and when the subpoena “subjects a person to undue burden.”[8] The rule also allows a court discretion to quash or modify a subpoena that requires the disclosure of “an unretained expert's opinion.”[9]

         “The scope of discovery under a subpoena is the same as party discovery permitted by Fed.R.Civ.P. 26.”[10] 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.[11] Information still “need not be admissible in evidence to be discoverable.”[12] 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.[13] 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.[14] Relevancy determinations are generally made on a case-by-case basis.[15]

         IV. Analysis[16]

         Movant argues the subpoena must be quashed because it did not afford him sufficient time to prepare himself to testify about matters that occurred in 2011 and 2012 when he was employed by AGI, particularly because doing so would require him to take time away from his current job. Mylan disputes the accuracy of the argument, pointing out that it first attempted to contact him on September 28, 2018, more than four weeks before the deposition as ultimately scheduled. In addition, Mylan invited movant to identify a different date, and states it would have sought an extension of the October 31, 2018 discovery deadline had movant suggested a date beyond that. Movant filed no reply in support of this motion, and the Court thus accepts the ...


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