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In re Epipen Epinephrine Injection USP Marketing, Sales Practices and Antitrust Litigation

United States District Court, D. Kansas

January 24, 2019

IN RE EpiPen Epinephrine Injection, USP Marketing, Sales Practices and Antitrust Litigation This Document Applies to the Sanofi Case MDL No. 2785

          MEMORANDUM AND ORDER

          TERESA J. JAMES U.S. MAGISTRATE JUDGE

         This matter is before the Court on The Mylan Defendants' Motion to Compel Sanofi to Produce Documents and Amended Request for Admission Responses (ECF No. 1324).[1]Pursuant to Fed.R.Civ.P. 36 and 37, Mylan seeks an order requiring Plaintiff Sanofi-Aventis U.S., LLC to (1) produce all documents in its possession responsive to Request No. 7 of Mylan's Seventh Requests for Production, and (2) produce amended responses to several of Mylan's Requests for Admission to remove allegedly extraneous, non-responsive, and argumentative commentary and clearly admit or deny the requests at issue.[2] As set forth below, the Court denies Mylan's motion.

         I. Relevant Background

         On September 28, 2018, Mylan issued 145 Requests for Admission to Sanofi, along with both its Seventh Set of Document Requests and its Third Set of Interrogatories. Three days later, Mylan served its Eighth Set of Document Requests on Sanofi. Sanofi timely responded to the discovery, and on November 14, 2018, Mylan sent a letter to Sanofi describing deficiencies it perceived in Sanofi's responses and modifying certain of its requests. The parties continued to engage in written and oral communication in an attempt to resolve their differences. 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

         Sanofi has refused to produce documents responsive to RFP No. 7 of Mylan's Seventh Set of Document Requests, which seeks documents related to the Lovenox litigation. Sanofi bases its refusal on the grounds that the request violates an earlier discovery order and belatedly seeks reconsideration of that order, the request is not a genuine discovery demand and Mylan would not be prejudiced without the discovery, and responding to the request would be unduly burdensome to Sanofi and disproportionate. Mylan argues the documents are highly relevant, whereas Sanofi's objections are boilerplate and unsupported by evidence demonstrating that producing responsive documents would be unduly burdensome.

         Mylan contends Sanofi's responses to 88 of its Requests for Admission are evasive, fail to answer the request, or contain extraneous statements that should be stricken. Sanofi argues that Mylan's generalized criticism of the majority of the RFAs it addresses does not warrant relief under Federal Rule of Civil Procedure 36, that its responses comply with Rule 36, and that Mylan's RFAs are improper attempts to have the court prematurely adjudicate merits disputes.

         III. Legal Standards

         Federal Rule of Civil Procedure 26(b)(1) sets out the general scope of discovery and provides as follows:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.[3]

         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.[4] Information still “need not be admissible in evidence to be discoverable.”[5] 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.[6] 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.[7] Relevancy determinations are generally made on a case-by-case basis.[8]

         Federal Rule of Civil Procedure 36 governs requests for admission. It allows a party to serve on any other party a written request to admit “the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents.[9] Requests for admission serve “two vital purposes, both of which are designed to reduce trial time. Admissions are sought, first to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be [eliminated].”[10] The purpose of a request for admission generally is “not to discover additional information concerning the subject of the request, but to force the opposing party to formally admit the truth of certain facts, thus allowing the requesting party to avoid potential problems of proof.”[11]

         IV. Analysis

         A. RFP No. 7 of Seventh Set of Document Requests

         RFP No. 7 seeks the following: “All documents filed under seal, all transcripts from court proceedings, and all transcripts and exhibits from depositions taken in Eisai, Inc. v. Sanofi Aventis U.S., LLC, No. 3:08-cv-4168 (D.N.J.) and No. 14-2017 (3d Cir.).”[12] In Eisai, Sanofi was accused of antitrust violations in connection with its anticoagulant drug Lovenox. Mylan later narrowed the request to those portions of depositions of Sanofi witnesses or sealed filings “in which Sanofi or its witnesses discuss Sanofi's contracting for the products at issue in [Eisai, ], Sanofi's knowledge and characterization of the industry practice of contracting for pharmaceutical products in general, the reasons for and effects of Sanofi's and the industry's contracting practices, and Sanofi's market share for the products at issue in [Eisai, ].”[13] In response, Sanofi objected (1) on the basis of relevancy, proportionality, and that the request falls outside the scope of the Court's earlier “other products” ruling;[14] (2) the request is untimely and seeks information available from other sources; and (3) the request is unduly burdensome to the extent it would require Sanofi to review and redact documents that contain other parties' confidential information that may be subject to a protective order in Eisai.

         Mylan contends the requested materials are highly relevant to its defense because in Eisai, “Sanofi was alleged to have engaged in conduct analogous to the conduct it challenges in its complaint against Mylan here and have engaged in such conduct with respect to a Sanofi product-Lovenox-that had a dominant market share.”[15] Mylan asserts it is entitled to conduct discovery on what position Sanofi took in defending its conduct, given that Sanofi now alleges Mylan's similar conduct is illegal.

         Ruling on this issue requires the Court to assess Mylan's relevancy argument in the context of what the parties refer to as the Court's earlier “other products” ruling. In its First Set of Requests for Production to Sanofi, Mylan propounded requests seeking information about rebates Sanofi had offered to PBMs or Third-Party Payors. In RFP 24, Mylan sought documents “relating to any contract, agreement, bid or offer” under which Sanofi offered rebates to any PBM or Payor for any of its products. Sanofi objected to producing the information and Mylan modified the RFP to limit the requested information to twelve Sanofi products in the U.S. over a five-year period from 2012 to 2016.[16] When the parties were still unable to reach agreement, Mylan filed a motion to compel Sanofi's responses to this and other discovery requests.[17]

         In its Memorandum and Order ruling on Mylan's motion to compel, the Court found that in general, information pertaining to rebates Sanofi paid is relevant on its face, at least with respect to the exclusive dealing claim Sanofi asserts against Mylan.[18] Although the Court found Mylan's original request overbroad, [19] the Court went on to assess the narrowed version of RFP 24 Mylan had proposed. Mylan asserted its proposal would provide “relevant information concerning the structure and circumstances of the industry, ” as well as “discovery of the rebate agreements Sanofi itself has claimed constitute ‘lawful, procompetitive price competition.'”[20] With respect to four of the twelve Sanofi products included in Mylan's proposal, the Court was able to discern from other submissions the likely reason Mylan included them was that each was the subject of one or more government investigations relating to pricing and trade practices.[21] However, Mylan did not explain why it included the other eight products or how they may have been relevant to the rebate issue in the motion to compel, and the Court denied Mylan's motion to compel insofar as it sought information related to Lovenox and seven other products.[22]

         Now that Mylan is once again seeking discovery related to Lovenox, it addresses the Court's “other products” ruling, describing it as neither compelling nor prohibiting such discovery, but simply holding that Mylan had not explained how Lovenox might be relevant. Mylan contrasts its current briefing in which it “provides an explanation of the Lovenox litigation.”[23] The Court has quoted that explanation in part, but now sets it forth in full:

The requested materials are highly relevant to Mylan's defense. In Eisai, Inc. v. Sanofi-Aventis U.S., LLC, Sanofi was alleged to have engaged in conduct analogous to the conduct it challenges in its complaint against Mylan here and to have engaged in such conduct with respect to a Sanofi product-Lovenox-that had a dominant market share. Indeed, there, a Sanofi competitor alleged Sanofi provided increased discounts to purchasers when Sanofi had an overall market share in the drug class of 81% to 92%. Eisai, Inc. v. Sanofi-Aventis U.S., LLC, 821 F.3d 394, 399-400 (3d Cir. 2016). Mylan is entitled to discovery into what position Sanofi took in defending its conduct, given that Sanofi now alleges Mylan engaged in similar conduct and that that conduct is illegal.[24]

         Mylan's explanation contains nothing new. Sanofi's allegations are the same now as they were when Mylan filed its earlier motion to compel. Accordingly, the Court is not persuaded that discovery into Lovenox has become relevant. The Court denies Mylan's motion insofar as it seeks to compel Sanofi to produce all documents in its possession responsive to Request No. 7 of Mylan's Seventh Requests for Production.

         B. Requests for Admission

         Mylan asks the Court to review and find insufficient dozens of Sanofi's responses to Mylan's Requests for Admission.[25] Mylan claims some of Sanofi's responses are evasive and fail to answer the request, while others contain extraneous, non-responsive statements. Although Mylan seeks to challenge 88 of Sanofi's responses, its briefing discusses only sixteen RFAs, ten of which share a common response. ...


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