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

United States District Court, D. Kansas

October 31, 2019

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



         This matter is before the Court on Mylan's Motion to Compel Class Plaintiffs to Amend Their Responses to Mylan's Fourth Set of Interrogatories and Third Set of Requests for Admission (ECF No. 1909). Mylan seeks an order requiring Class Plaintiffs to amend their responses to four interrogatories and three requests for admission. Class Plaintiffs oppose the motion. As set forth below, the Court will deny the motion.

         I. Relevant Background

         On July 1, 2019, Mylan served its Fourth Set of Interrogatories and Third Set of Requests for Admissions (RFAs) on Class Plaintiffs. Class Plaintiffs timely served their answers, responses, and objections. By letter dated August 8, 2019, Mylan advised Class Plaintiffs of deficiencies they perceived, and during the next forty days the parties met and conferred at least four times and exchanged additional correspondence. During this process, Class Plaintiffs twice amended their interrogatory answers and RFA responses. This motion followed. 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

         Pointing out that the consumer class cases have come to the end of the discovery period, Mylan asserts it served contention interrogatories and requests for admission for the appropriate purpose of narrowing the issues for trial. In its motion, Mylan contends Class Plaintiffs should be required to amend their answers to four interrogatories. With respect to Interrogatory Nos. 18-20, Mylan objects that Plaintiffs refuse to certify their answers are complete, but that instead they gave qualified responses that leave open the possibility of future discovery, even though discovery has closed. Mylan contends Plaintiffs' response to Interrogatory No. 23 is insufficient because it refers to named Class Plaintiffs' depositions without saying how the testimony is responsive or providing transcript citations. In responding to RFA Nos. 10, 12, and 13, all of which ask about settlement agreements with Intelliject or Sandoz, Plaintiffs object that the term “settlement agreement” is vague and ambiguous. Mylan asserts Plaintiffs have repeatedly used the same term and their objection should therefore be overruled. Mylan contends the Court should also overrule Plaintiffs' objection to the RFAs on the basis that they lack sufficient information to admit or deny the requests because discovery is closed. Mylan also denies having limited the phrase “settlement agreement” to a single document with respect to RFA No. 10.

         Plaintiffs contend Mylan has likewise refused to certify the completion of its discovery responses. They explain their answer to Interrogatory No. 23 cannot contain citations to deposition testimony because their answer is based on the absence of testimony. Plaintiffs argue Mylan improperly asserts relief under Rule 37 of the Federal Rules of Civil Procedure, and they explain the difficulty in admitting facts concerning “settlement agreements” arises from the phrase having inconsistent meanings and Mylan's refusal to better define the term. And Plaintiffs insist they have fulfilled their discovery obligation to make reasonable inquiry and provide responses to the extent they have or can readily obtain information.

         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.[1]

         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.[2] Information still “need not be admissible in evidence to be discoverable.”[3] 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.[4] 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.[5] Relevancy determinations are generally made on a case-by-case basis.[6]

         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.[7] 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].”[8] 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.”[9] Determining the sufficiency of a party's response is a matter of the court's discretion.[10]

         IV. Analysis

         A. Interrogatory Nos. 18-20

         Interrogatory Nos. 18-20 are contention interrogatories concerning Class Plaintiffs' pay-for-delay allegations. They state as follows:

Interrogatory No. 18: Describe all principal and material facts on which you base your contention that the Supplier Commitment Agreement entered into between Mylan and Teva (MYEP01386498) was related to Mylan's settlement agreement with Teva referenced in paragraph 258 of your Complaint.
Interrogatory No. 19: Describe all principal and material facts on which you base your contention in paragraph 303 of your Complaint that “Defendants entered into an agreement with Sandoz to stay the case indefinitely in exchange for valuable consideration to Sandoz.”
Interrogatory No. 20: Describe all principal and material facts on which you base your contention in paragraph 299 of your Complaint that “Intelliject and Sanofi agreed not to enter the market until November 15, 2012 in exchange for valuable consideration.”[11]

         In their amended responses and objections, Class Plaintiffs begin their answer to Interrogatory No. 18 with the following:

Plaintiffs object to the term “principal” facts as vague but will provide all “material” facts. Plaintiffs further object that they only recently received a large production from Mylan containing documents related to the Supplier Commitment Agreement between Mylan and Teva (MYEP01386498). Further, as of the date of this response, Plaintiffs have not yet deposed certain Mylan and/or Teva witnesses who are likely to have relevant knowledge concerning the Supplier Commitment Agreement. Accordingly, Plaintiffs have not yet completed their discovery of all of the facts pertaining to this action or reviewed all potential evidence for use at trial. As this action proceeds and further investigation and discovery are conducted, additional facts, witnesses, documents, testimony or other evidence likely will arise, and Plaintiffs will have more time to review the recent document productions and to assemble factual evidence. Plaintiffs are providing responses based on their review of evidence to date.[12]

         The answers to Interrogatory Nos. 19 and 20 contain the same or similar language to that highlighted in bold. Plaintiffs amended their answers to Interrogatory ...

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