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In re EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation

United States District Court, D. Kansas

March 12, 2019

IN RE EpiPen Epinephrine Injection, USP Marketing, Sales Practices and Antitrust Litigation (This Document Applies to the Class)

          MEMORANDUM AND ORDER

          Teresa J. James U.S. Magistrate Judge

         This matter is before the Court on Mylan's Motion to Compel Class Plaintiffs to Produce Amended Responses to Requests for Admission and Interrogatories (ECF No. 1410). Mylan seeks an order requiring Class Plaintiffs to produce amended responses to (1) several of Mylan's Second Set of Requests for Admission to Class Plaintiffs, [1] and (2) Interrogatory No. 14 in Mylan's Third Set of Interrogatories to Class Plaintiffs.[2] Class Plaintiffs oppose the motion. As set forth below, the Court grants in part and denies in part Mylan's motion.

         I. Relevant Background

         On November 16, 2018, Mylan served its Third Set of Interrogatories and Second Set of Requests for Admission on Class Plaintiffs. Class Plaintiffs timely responded to both. Mylan found their responses lacking in completeness, however, and the parties twice met and conferred and later exchanged correspondence to try to resolve their differences. Class Plaintiffs agreed to and did provide amended responses to both sets of discovery, but not to Mylan's satisfaction.

         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

         Mylan contends Class Plaintiffs' objections to 82 of its Requests for Admission are inadequate and Class Plaintiffs should be required to respond to each. Mylan also argues that Class Plaintiffs' answer to RFA No. 233 is evasive and Class Plaintiffs should be compelled to provide an adequate response. Class Plaintiffs argue Mylan has served RFAs for the improper purpose of conducting basic fact discovery, and that the 82 Requests at issue are the functional equivalent of interrogatories that exceed Mylan's limit. With respect to RFA No. 233, Class Plaintiffs stand by their objection.

         Although Mylan agrees that Class Plaintiffs have now served a satisfactory amended answer to one of the interrogatories at issue, Mylan argues in its reply that Class Plaintiffs' objections to another interrogatory are inadequate. Class Plaintiffs contend the interrogatory is overly broad and unduly burdensome.

         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] Determining the sufficiency of a party's response is a matter of the court's discretion.[12]

         IV. Analysis

         A. 82 Requests for Admission

         Mylan asserts it properly propounded RFAs that “seek basic information about named Plaintiffs' EAI purchases and insurance coverage from 2009 through 2016 and for individual years during that period.”[13] The RFAs seek admissions that at least one of the named Plaintiffs (1) had prescription drug coverage through health insurance plans for the entire period from 2009 to 2016, (2) did NOT have prescription drug coverage through health insurance plans for the entire period from 2009 to 2016, (3) had coverage for at least one portion of the period, (4) did NOT have coverage for at least one portion of the period, (5) did or did not have a number of additional insurance-related events, (6) paid no out-of-pocket expenses for EpiPen in each of those years, or less than $100, or less than $50, or before meeting an annual deductible, or free, or with a coupon, or using a copay card, or through a health savings account (in varying levels), or through a flexible spending account (in varying levels), (7) did not have an increase of insurance premiums during those years, and (8) never complained to Mylan about the price of EpiPens during that period.

         Recounting Mylan's failure to challenge Class Plaintiffs' objections to two earlier interrogatories that tied into Class Plaintiffs' responses to RFAs, Class Plaintiffs contend these current Requests are Mylan's way of trying to circumvent its interrogatory limit. One of the earlier interrogatories had asked Class Plaintiffs to identify the named Plaintiff to which any admission applied in each of Class Plaintiffs' responses to 28 of Mylan's First Sets of Requests for Admission; the second had asked the same with regard to any denial. Class Plaintiffs objected that Mylan was trying to squeeze 56 interrogatories into two, and Mylan chose not to press the point during the parties' meet-and-confer sessions that covered other objections. Class Plaintiffs contend the current RFAs at issue are objectionable for the same reason, i.e. that Mylan is using these Requests for the improper purpose of conducting basic fact discovery.

         Mylan asserts that it served the Requests for precisely the purposes for which RFAs are intended, to require Class Plaintiffs to formally admit the truth of certain facts “that have already been discovered through the named Plaintiffs' Fact Sheets, depositions, and productions.”[14] In other words, Mylan denies that their RFAs seek to discover additional information. In their response, Class Plaintiffs challenge Mylan's representation by repeating the offer they made during the parties' meet-and-confer process to the effect that Class Plaintiffs would withdraw their objection for each RFA for which Mylan would specify the basis within the record. According to Class Plaintiffs, Mylan's rejection of that offer ...


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