United States District Court, D. Kansas
IN RE EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation (This Document Relates to the Class Cases)
J. James, U.S. Magistrate Judge
matter is before the Court on Non-Party
Humana's request for an order directing Class
Plaintiffs to pay its reasonable costs of compliance with a
subpoena served in this case. Class Plaintiffs moved to
compel Humana to comply with the subpoena, and the Court
previously granted Class Plaintiffs'
motion. In its response to Class Plaintiffs'
motion to compel, Humana made no request for costs. It was
not until Humana moved for an extension of time to comply
with the Court's order and for protective order that
Humana requested costs.The Court ruled on the substantive
issues in Humana's motion and took under advisement the
issue of costs.
submitted a declaration in support of its request, which
stated the “fees billed or billable” to Humana by
an outside law firm in connection with the subpoena exceed
$35, 000. The affidavit includes no billing records or
indication of the individuals involved, their billing rates,
or a description of services rendered. Class Plaintiffs
oppose the request and contend the Court should not order
them to share in the cost of production.
to Federal Rule of Civil Procedure 45(d)(2)(B), once an order
to compel is in place, the court must “protect a person
who is neither a party nor a party's officer from
significant expense resulting from
compliance.” The widely-applied standard in determining
cost allocation under the rule calls for consideration of
three factors: “(1) whether the non-party actually has
an interest in the outcome of the case, (2) whether the
non-party can more readily bear the costs than the requesting
party, and (3) whether the litigation is of public
Plaintiffs address each factor. First, Class Plaintiffs
assert that Humana has a distinct interest in the outcome of
this litigation because it may share in any recovery on the
consumer class claims. Moreover, Class Plaintiffs claim,
Humana has a direct business interest in the underlying
claims in this litigation and has warned its investors of the
risk that its gross margins may decline if it does not
continue to earn and retain purchase discounts and volume
rebates from pharmaceutical manufacturers at current levels.
“When the nonparty producing materials has a potential
interest in the underlying litigation, courts have weighed
that interest against shifting the costs of production to the
requesting party.” The Court agrees that Humana is not the
classic disinterested party subject to subpoena from a party
to a lawsuit to which it has no connection. “When a
party from whom documents are sought is not a ‘classic
disinterested non-party,' . . . the court can order that
the non-party produce the documents at its own
Class Plaintiffs contend Humana has revenues exceeding $53
billion and is ranked 56th on the Fortune 500.
They contrast their own composition of individual consumers
and one regional Taft-Hartley welfare trust fund. As the
entities seeking to shift costs and attorney's fees, it
is up to the non-parties to “demonstrate that they
cannot more readily bear the expense” than the
requesting party. Humana has made no such showing.
Class Plaintiffs submit this litigation has significant
public importance, pointing in part to congressional hearings
on the pricing of EpiPen and rebate payments. The Court also
notes the antitrust and consumer class claims raise a matter
of concern to the public, as an adverse finding would
indicate those who purchased or otherwise paid for EpiPen
paid a higher price because of one or more Defendants'
actions. To find public importance in this case is consistent
with the way in which other courts interpret this
addition to addressing each of the relevant factors, Class
Plaintiffs argue cost-shifting is particularly inappropriate
because Humana produced no responsive documents until Class
Plaintiffs moved to compel production and the Court granted
their motion. Class Plaintiffs also point to this Court's
finding that they have taken reasonable steps to avoid
imposing undue burden or expense on Humana.
offers no argument in response, nor has it provided invoices
or other documentary support for its request. The Court finds
that Humana has failed to set forth any reason why it should
not bear the expense of production. Considering the relevant
factors, the Court concludes that Humana is not entitled to
cost allocation under Rule 45.
IS HEREBY ORDERED that the request for costs in
connection with responding to the subpoena issued by Class
Plaintiffs to non-party Humana is denied.
IS SO ORDERED.
 Although here are two entities at
issue, Humana Inc. and Humana Pharmacy Solutions, Inc., the
Court follows Humana's convention of referring to them in