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

United States District Court, D. Kansas

October 23, 2019

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

          MEMORANDUM AND ORDER

          TERESA J. JAMES U.S. MAGISTRATE JUDGE

         This matter is before the Court on Class Plaintiffs' Amended Motion to Compel Production of Documents Responsive to Tenth Set of Requests for Production to Mylan Defendants (ECF No. 1904). Class Plaintiffs seek an order requiring Mylan to produce all documents responsive to RFP Nos. 10 and 13. Mylan opposes the motion. As set forth below, the Court will grant the motion in part and deny it in part.

         I. Relevant Background

         Class Plaintiffs served their Tenth Set of Requests for Production to Mylan Defendants on July 1, 2019. Mylan timely served its responses and objections. Following Class Plaintiffs' golden rule letter dated August 5, 2019, the parties held a meet and confer on August 9, 2019. Over the course of the next 40 days, Mylan sent four letters to Plaintiffs' counsel and Class Plaintiffs sent one to Mylan's counsel. This motion followed.[1] 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

         Class Plaintiffs contend Mylan has failed to provide all documents responsive to RFP Nos. 10 and 13 of their Tenth Set of Requests for Production. With respect to the supply and distribution agreements between Mylan and Pfizer from January 1, 2009 to the present[2] for EpiPen or any other pharmaceuticals or pharmaceutical device (RFP No. 10), Class Plaintiffs assert (1) the request is relevant to its RICO, 2-Pak, and pay-for-delay claims; (2) public availability of some documents does not relieve Mylan of the obligation to produce responsive documents; (3) Mylan has an obligation to identify by Bates number those responsive documents it claims to have previously produced; and (4) Mylan's other objections should be overruled as unsupported. With respect to the compensation documents for Defendant Heather Bresch during the same period, Class Plaintiffs assert the documents are relevant to Ms. Bresch's personal motive in approving EpiPen price increases, and that Mylan's objection that the request is burdensome should be overruled because it is unsupported by affidavit or declaration.

         Mylan disputes that Class Plaintiffs' requests are facially relevant to any of Plaintiffs' claims or Defendants' defenses. Mylan asserts it has produced all relevant responsive documents, directed Class Plaintiffs to any documents that are publicly available, and advised Class Plaintiffs it has no more documents to produce. Mylan's response also abandons any objection other than relevancy.

         III. Legal Standard

         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]

         IV. Analysis

         Since it was served with Class Plaintiffs' document requests in July, Mylan has produced no documents in response to RFP Nos. 10 or 13. Instead, Mylan objected to each request as overly broad, unduly burdensome, and not relevant to any party's claims or defenses. Mylan also objected that RFP No. 10 is disproportionate to the needs of this litigation. Mylan asserts that because Class Plaintiffs questioned Ms. Bresch about her compensation during her deposition, Mylan owes no further responses because Plaintiffs “already have explored and received discovery on any link between Ms. Bresch's compensation and EpiPen pricing.”[9]

         A. RFP No. 10 -- Agreements with Pfizer

         Class Plaintiffs made the following request:

RFP No. 10: All supply and distribution agreements and/or contracts between the Mylan Defendants and the Pfizer Defendants during the Relevant Period for EpiPen or any other ...

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