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)
MEMORANDUM AND ORDER
J. JAMES U.S. MAGISTRATE JUDGE
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.
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. Based on the parties' efforts, the
Court finds they have complied with the requirements of D.
Kan. R. 37.2.
Summary of the Parties' Arguments
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 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.
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.
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.
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. Information still “need not be
admissible in evidence to be
discoverable.” 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. 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. Relevancy determinations are generally
made on a case-by-case basis.
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
RFP No. 10 -- Agreements with Pfizer
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