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In re Epipen Epinephrine Injection

United States District Court, D. Kansas

February 28, 2019

IN RE EpiPen Epinephrine Injection, USP Marketing, Sales Practices and Antitrust Litigation This Document Applies to the Class s No. 17-md-2785-DDC-TJJ

          MEMORANDUM AND ORDER

          Teresa J. James, U.S. Magistrate Judge.

         This matter is before the Court on Mylan's Motion to Compel Compliance with Subpoena Directed to Non-Party The Segal Group, Inc. (ECF No. 1375). Mylan seeks an order requiring non-party The Segal Group, Inc. (“Segal”) to identify custodians likely to have information relevant to Mylan's subpoena and to search for and produce email communications from those custodians. Segal opposes the motion. As set forth below, the Court will grant Mylan's motion.

         I. Relevant Background

         On October 10, 2018, Mylan served a document subpoena on Segal. Segal timely responded, posing objections to each of the fourteen requests but also agreeing to produce certain responsive documents. Since that time, the parties have engaged in email communication and met and conferred on November 6, November 27, and December 18, 2018. Asserting it has not provided services for the Local 282 Welfare Trust Fund related to EAI products, Segal has refused to search for or produce email communications from its employees regarding EAI products. Mylan and Segal represent, and the Court finds, that they have complied with the requirements of D. Kan. R. 37.2.

         II. Summary of the Parties' Arguments

         Mylan argues Segal improperly refuses to identify custodians who possess or can identify documents responsive to the subpoena. Mylan asserts the email communications it seeks are relevant, Segal's boilerplate objections are invalid, and Segal has failed to meet its burden to show compliance would cause undue burden.

         Segal insists the email communications Mylan seeks are irrelevant, as Mylan admits that Segal never provided advice to or services for the Local 282 Welfare Fund related in any way to EAI products, including EpiPen. Segal also asserts the subpoena is unreasonable and unduly burdensome because it seeks information Mylan has obtained from other sources and over an extended period, and has cost Segal time and money. Segal stands by its objections. If the Court grants Mylan's motion, Segal asks that any email search be limited to three of its employees it identifies as those most likely to have emails related to pharmacy benefits and the 2013 selection of CVS/Caremark as Local 282's PBM service provider, and for an award of costs.

         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. Relevancy

         Mylan points out that Plaintiff Local 282 Welfare Trust Fund is the only Plaintiff health plan in this case, thereby making Local 282 the sole purported representative of a putative class that includes thousands of health plans and payors. Accordingly, to fulfill its need to learn more about whether Local 282 suffered the harms Class Plaintiffs allege and its fitness to serve as an appropriate class representative, [12] Mylan is trying to inform its understanding of the communications between Local 282 and PBMs. As the entity through which Local 282 communicates, negotiates, and contracts with PBMs, Mylan issued a subpoena to Segal to obtain documents relating to Segal's communications with Local 282 and with the PBMs. Segal maintains that because it has never provided services to Local 282 related to EAI products, which Mylan does not dispute, it could not possess emails that are “remotely relevant to this lawsuit.”[13]

         The Court finds the relevancy of the requested information is readily apparent. Segal does not dispute the testimony from Local 282 that identified Segal as the sole means through which Local 282 communicates, negotiates, and contracts with PBMs. As such, each of the thirteen requests at issue seeks information that bears on or could lead to other matter that could bear on Mylan's defenses.[14] Indeed, Segal has produced some documents responsive to the requests, drawing the line only at identifying ESI custodians and conducting searches of those custodians' emails.

         In its response to Mylan's motion, Segal asks that if the Court requires it to conduct an email search, the search be limited to three Segal employees who primarily communicated with the PBMs regarding Local 282's 2013 selection of CVS/Caremark as its PBM, and to specifically exclude from its scope John Urbank, its lead individual on the Local 282 account.[15]In so doing, Segal seeks to substitute its views of relevancy for the applicable legal standard. The Court finds Mylan's request that Segal identify ESI ...


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