United States District Court, D. Kansas
IN RE EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation (This Document Applies to Consumer Class Cases) MDL No. 2785
MEMORANDUM AND ORDER
Teresa
J. James, U.S. Magistrate Judge.
This
matter is before the Court on Class Plaintiffs' Motion
for Leave to Take Second, Limited Deposition of Heather
Bresch (ECF No. 1732).[1] Pursuant to Federal Rule of Civil
Procedure 30(a)(2)(A)(ii), Class Plaintiffs seek an order
allowing them to take a second, limited deposition of
Defendant Heather Bresch. Mylan opposes the motion. As set
forth below, the Court will grant Plaintiffs' motion and
allow additional deposition time not to exceed two hours.
I.
Relevant Background
In
October 2018, Class Plaintiffs and Sanofi deposed Defendant
Heather Bresch as part of the coordinated discovery in this
case. The Court imposed an eight-hour limit on her
deposition.[2] Neither Sanofi nor Class Plaintiffs sought
to extend the time during her deposition or for the remainder
of coordinated discovery. But after non-party Teva
Pharmaceuticals produced documents to Class Plaintiff on June
14, 2019 in further response to a subpoena Class Plaintiffs
served on August 13, 2018, [3] Class Plaintiffs filed the
instant motion. Class Plaintiffs and Mylan met and conferred
on Class Plaintiffs' request that Mylan agree to the
deposition. The Court finds the parties have complied with
the requirements of D. Kan. R. 37.2.
II.
Summary of the Parties' Arguments
Class
Plaintiffs contend the documents Teva produced constitute
good cause to allow them to take a second deposition of
Defendant Heather Bresch, limited to exploring the
reverse-payment allegations[4] in their consolidated amended
complaint. Mylan disagrees, arguing the documents Teva
produced do not justify re-deposing Ms. Bresch. Mylan asserts
the documents are not highly inculpatory and they contain
information Class Plaintiffs knew but chose to ignore when
they deposed Ms. Bresch. Regarding the timing of Teva's
production, Mylan faults Class Plaintiffs for allowing Teva
to produce documents so long after the Court ordered Teva to
comply with the subpoena. Without suggesting a real reason,
Mylan asserts that Class Plaintiffs are using the documents
as a “purported” reason to seek a second
deposition.
III.
Legal Standard
“A
party must obtain leave of court, and the court must grant
leave to the extent consistent with Rule 26(b)(1) and (2) . .
. if the parties have not stipulated to the deposition and .
. . the deponent has already been deposed in the
case.”[5] Although the decision is discretionary,
courts generally disfavor repeat depositions.[6] The common
exception is to allow a party to reopen a deposition where
new information is discovered after the initial
deposition.[7]
IV.
Analysis
An
objective assessment of the facts leads the Court to conclude
that Class Plaintiffs' motion should be granted. The
documents they received from Teva in the last of several
productions over many months, regardless of the timing
vis-à-vis the class certification hearing, provide new
information highly relevant to Class Plaintiffs'
reverse-payment allegations. Moreover, one of the three
documents contains a specific reference to Ms. Bresch. Given
her position at Mylan and her status as a party in this case,
Class Plaintiffs are justified in arguing the documents
provide a good-faith basis to question Ms. Bresch about an
agreement with Teva.
Rule 30
requires the Court to grant Plaintiffs' motion “to
the extent consistent with Rule 26(b)(1) and
(2).”[8] The subject matter of the requested
discovery is relevant to Class Plaintiffs' claim, and the
manner is proportional to the needs of the case considering
the importance of the issues at stake. Clearly, the
parties' relative access to the information is one-sided,
and the Court finds the burden of the proposed discovery does
not outweigh its likely benefit.[9]
If
Class Plaintiffs had these documents in their possession
before the October deposition, they surely would have
inquired about them. Class Plaintiffs should not be penalized
for the recent production, and the Court finds good cause to
permit a very limited further deposition. The Court will
permit Class Plaintiffs to depose Ms. Bresch for a maximum of
two hours. The Court directs the parties to confer regarding
the location and date, and expects the deposition to take
place no later than early September, 2019.
IT
IS HEREBY ORDERED that Class Plaintiffs' Motion
for Leave to Take Second, Limited Deposition of Heather
Bresch (ECF No. 1732) is granted. Class Plaintiffs may
conduct another deposition of Defendant Heather Bresch, not
to exceed two hours.
IT
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