TERESA J. JAMES, Magistrate Judge.
This matter is before the Court on Non-Party OptumRx, Inc.'s Motion Under Fed. R. Civ. P. 45(d)(3) to Quash Class Plaintiffs' Deposition Subpoena, or in the Alternative, for a Protective Order Under Fed. R. Civ. P. 26(c)(1) (ECF No. 1137). OptumRx seeks (1) an order quashing Class Plaintiffs' Rule 45(d)(3) deposition subpoena or, in the alternative, (2) a protective order narrowing the proposed topics and extending the time for compliance, and (3) an award of costs and expenses. Class Plaintiffs oppose the motion. As set forth below, the Court will deny OptumRx's motion.
The Court briefly summarizes the events leading to this motion.
Optum asserts eight of the topics Class Plaintiffs include in their 30(b)(6) deposition notice are overbroad, seek irrelevant information, are vague and ambiguous, or seek information Optum should not be required to provide because Class Plaintiffs should obtain the requested information from Mylan. In addition, Optum contends Class Plaintiffs are obligated by this court's Deposition Guidelines to provide advance copies of documents the witness may be asked to review. Optum also wants Class Plaintiffs to pay the costs of responding to the subpoena. Finally, Optum wants to exclude certain counsel from the deposition.
Class Plaintiffs contend their topics are clear, unambiguous, and narrowly tailored, and fall within topics the Court already has found relevant in this action. They further contend they are under no obligation to provide Optum with copies of documents they may use in the deposition, nor should they be required to pay any share of Optum's cost of compliance. Class Plaintiffs deny Optum will be prejudiced by counsel whose appearance Optum challenges.
In issuing a subpoena, a party must "take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena."
Federal Rule of Civil Procedure 45 governs both motions to compel compliance with and motions to quash a subpoena served on a non-party. Under Rule 45(d)(2)(B), if the entity commanded to produce documents serves written objections to the subpoena, the serving party may seek compliance by filing a motion to compel production of the documents. If the non-party wishes to challenge the subpoena, it does so by filing a motion to quash. Rule 45(d)(3) sets forth circumstances under which a court must quash or modify a subpoena, including when the subpoena "requires disclosure of privileged or other protected matter, if no exception or waiver applies," and when the subpoena "subjects a person to undue burden."
"The scope of discovery under a subpoena is the same as party discovery permitted by Fed. R. Civ. P. 26."
Pursuant to Federal Rule of Civil Procedure 26(c), a "court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]"
Optum argues that eight of the deposition topics are impermissibly overbroad and/or vague and ambiguous, seek irrelevant information, or are not properly posed to a non-party. Optum further argues that Class Plaintiffs must provide in advance documents they may use at the deposition; and that Class Plaintiffs should bear the costs of Optum's compliance. In addition, Optum seeks to exclude from the deposition counsel whose presence Optum claims would be prejudicial. The Court considers each in turn.
Optum objects to these topics as facially overbroad because they use the phrase "including, but not limited to" in requesting information related to Optum's negotiations with Mylan and other EAI producers. Optum also alleges the examples of the sort of information Class Plaintiffs seek are vague, and contends that because Class Plaintiffs have the benefit of discovery from Mylan (including Optum's contracts with Mylan), Class Plaintiffs should be able to identify more precisely the information they seek. In addition, Optum asserts that "suggestions," "proposals," "terms," "other financial incentives," and "any other product" are vague and ambiguous.
Class Plaintiffs disagree that their use of the phrase "including, but not limited to" caused the requests to be overbroad. Interestingly, both sides cite the same case to support their opposing arguments regarding this phrase. Optum refers to a passage in Heartland Surgical Specialty Hospital v. Midwest Division, Inc.,
Neither does the Court find the words and phrases quoted above are vague and ambiguous, nor is the request for "any" or "all" documents facially overbroad because those requests are otherwise limited. With respect to Optum's objection that the request for testimony on contract negotiations with producers of other EAI devices is overbroad, Class Plaintiffs state they have adopted the relevant group of contracts as Optum defined them. Optum does not dispute this position in its reply.
The Court denies the motion insofar as it seeks to quash or modify subpoena Topic Nos.
1 and 2.
Optum objects that each of these topics seeks irrelevant information. Specifically, Optum contends Topic Nos. 3-5, which address formulary coverage decisions, should be limited to information about EAI devices. Additionally, in Topic No. 5 Optum urges the Court to find the word "prices" (in the phrase "effect of EpiPen prices increases") vague because different prices exist at various levels of the distribution chain, and argues it is overbroad in seeking information for regions outside the United States because all named Plaintiffs are American citizens whose claims turn on federal or state statutes.
Class Plaintiffs explain they are unable to limit their inquiry to particular points in the distribution chain because they seek to learn whether a price increase at any point was relevant to Optum's consideration for formulary placement. And with respect to their request for formulary decisions outside the United States, Class Plaintiffs note that Optum's international decision-making may have had an effect on decisions implicating distribution in the United States.
As the Court noted in its order ruling on Class Plaintiffs' motion to compel related to their document subpoena to Optum, the legal standard for review of Optum's objections based on relevancy is necessarily informed by the allegations in Class Plaintiffs' amended complaint.
Keeping in mind that relevance 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 issue that is or may be in the case,"
For each of these topics, Optum objects to the phrase "any feedback" it received from pharmacies, physicians, or consumers from Mylan's switch to EpiPen 2-Paks and regarding the availability or unavailability of any non-EpiPen EAI device. Optum asserts the phrase is overbroad because it has contractual relationships with more than 67,000 pharmacies and has served millions of physicians and consumers during the years 2012 to 2017. In response, Class Plaintiffs contend that merely stating numbers does not substantiate a claim that investigating the requested information would be unreasonable. The Court agrees. Optum has made no showing that its manner of tracking complaints or other feedback is made more cumbersome or difficult because Class Plaintiffs have not narrowed the source of the feedback. Accordingly, the Court denies the motion insofar as it seeks to quash or modify Topic Nos. 6 and 7.
In Topic No. 8, Class Plaintiffs address Optum's "knowledge of any federal, state, or local investigation into Mylan's rebates or practices, including but not limited to Mylan's $465 million settlement with the Department of Justice for alleged violations of the False Claims Act." Optum contends there is no reason it should provide such testimony because Class Plaintiffs can and should obtain the information from Mylan.
Plaintiffs argue that Optum's obligation to provide the information they seek, which is limited to Optum's knowledge, is not obviated by the speculative claim that a party may have relevant information. As the Court wrote in its order ruling on Class Plaintiffs' motion to compel Optum's production of documents, "Optum has no way of knowing whether documents in different entities' possession are identical, nor can it know what documents other entities possess."
Optum seeks an order requiring Class Plaintiffs to produce in advance copies of documents it intends to use at the 30(b)(6) deposition. Optum argues that, as a non-party, it is at an unfair advantage because it does not have access to the documents that have been produced to the parties. In addition, Optum points to the provision in this district's Deposition Guidelines which states that "[i]f the witness is going to be asked to review numerous or lengthy documents, copies of the documents should be sent to the witness sufficiently in advance of the deposition to enable the witness to read them prior to the deposition."
Class Plaintiffs oppose the request, pointing out that this district's Deposition Guidelines are permissive and not mandatory. Class Plaintiffs cite to a case from this district that discusses the issue, In re Urethane Antitrust Litigation, Case No. 04-MD-1616, 2011 WL 13074295 (D. Kan. Dec. 22, 2011). In that case, four non-party witnesses were to be deposed by certain defendants. The witnesses argued that common courtesy required advance production of documents to be used at the deposition, and doing so would avoid needless waste of time during the deposition. Defendants did not expect to show the witnesses lengthy or numerous documents, and expressed concern that if they disclosed the documents in advance, the witnesses could strategize with counsel to frame their responses. Magistrate Judge O'Hara found the movants had not met their burden to show the need for the "unorthodox approach" of a protective order, and he denied the motion.
The Court likewise finds that Optum has not met — or even attempted to meet — its burden to demonstrate entitlement to a protective order on one of the enumerated grounds of Rule 26. In terms of proportionality, the Court notes it has not imposed this restriction for any other non-party deposition. However, having reminded and even admonished the parties to this action to be attentive to this district's Deposition Guidelines, the Court directs Class Plaintiffs to fully consider whether the deposition might be more efficiently conducted and disputes could be avoided by providing copies of numerous or lengthy documents in advance.
Optum expresses its deep concern that a number of the law firms representing the Class Plaintiffs in this action are also representing the plaintiffs in the Minnesota ERISA litigation.
Class Plaintiffs object to what they describe as Optum's attempt to restrict the practice of law "preemptively, based solely on speculation and without identifying any potential competitive harm."
Optum seeks to have Class Plaintiffs pay its reasonable costs for the deposition, asserting preparation will be a significant undertaking of time and effort. Class Plaintiffs oppose the request. The Court finds no basis for cost-shifting and denies the request.
Optum requests, and Class Plaintiffs do not oppose, extending the deadline for Optum's deposition until November 30, 2018. The Court grants the request. In addition, the Court orders Optum to identify, within three business days of the date of this order, a designee or designees who will testify regarding the topics noticed in the deposition subpoena.
In re: EpiPen ERISA Litigation, Civ. No. 17-1884 (PAM/HB), Doc. 281 (D. Minn. Oct. 26, 2018).