United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Allergan's
Motion to Compel Express Scripts to Produce Documents and
Deposition Testimony (ECF No. 1). The motion is fully briefed
and ready for disposition.
case arises from an antitrust lawsuit pending in the District
Court for the District of Massachusetts, In re Asacol
Antitrust Litigation, No. 1:15-cv-12730
("underlying lawsuit"). Petitioners are Warner
Chilcott Limited; Warner Chilcott Company, LLC; Warner
Chilcott (US), LLC; Warner Chilcott Sales (US), LLC; Allergan
PLC; Allergan, Inc.; Allergan USA, Inc.; and Allergan Sales,
LLC (collectively "Allergan"). Allergan is a
defendant in the underlying lawsuit, and plaintiffs in that
case are purchasers of pharmaceutical products manufactured
by Allergan to treat ulcerative colitis ("Asacol
products"). Plaintiffs in the underlying lawsuit contend
that Allergan and other defendants engaged in a scheme to
maintain a monopoly by making minor improvements to a product
in order to prevent the entry of generic versions. Respondent
Express Scripts is a pharmacy benefit manager
("PBM") and is not a party to the underlying
lawsuit, which does not relate to Express Scripts' PBM
services. However, Allergan has issued subpoenas for the
production of documents and deposition testimony from Express
Scripts for use in the underlying lawsuit.
Scripts has produced some of the requested documents.
However, Allergan seeks to compel 1) "[d]ocuments
showing Express Scripts's bid solicitations to
manufacturers of ulcerative colitis treatments, the
manufacturers' responses, and Express Scripts's
consideration of and decisions on the bids (collectively, the
"bid documents")"; 2) "Express
Scripts's rebate agreements with manufacturers of
ulcerative colitis treatments (the "rebate
agreements")"; and 3) "[d]eposition testimony
regarding (a) Express Scripts's consideration of
manufacturers' bids and its decision to include on and
exclude from its formularies the ulcerative colitis
treatments ...; (b) Express Scripts's rebate agreements
with manufacturers for ulcerative colitis treatments ...; and
(c) the authentication of the documents Express Scripts has
produced .. .." (Mem. in Support of Mot. to Compel pp.
6-7, ECF No. 2)
Scripts objects to producing the documents, arguing that its
confidential pricing information, contract negotiations,
formulary considerations, and rebate agreements are
competitively sensitive, proprietary, and highly
confidential. Express Scripts asserts that the undue risk,
burden, and expense to Express Scripts of producing said
documents would outweigh any purported relevance.
Court notes that Allergan previously filed a Motion to Compel
Third-Party Shire U.S. Inc. ("Shire") to produce
market documents and deposition testimony in the underlying
lawsuit. Shire has been described as the "principal
competitor" of the Asacol products in the ulcerative
colitis market. (Express Scripts' Notice of Suppl.
Authority Ex. A [hereinafter "Shire Order"], ECF
No. 17-1) In its motion, Allergan sought to compel Shire to
produce 1) documents regarding its internal marketing
strategy; 2) documents showing the couponing and patient
savings programs Shire offered for its products; 3) documents
showing Shire's efforts to advertise and market the
products; and 4) rebate agreements between Shire and payers
such as insurers and PBMs. (Shire Order pp. 1-2) Shire
objected to producing the documents "on the grounds that
the information is not needed by Allergan, Allergan is
seeking highly confidential competitive information, and the
production would be unduly burdensome." (Shire Order p.
2) The magistrate judge found, and the district court
affirmed, that Allergan was seeking information that went to
the core of its competitor's marketing strategies and was
highly confidential. (Shire Order pp. 7, 12-13) The court
further found that the need by Allergan for the documents
pertaining to marketing plans and strategies was minimal.
(Shire Order pp. 13-14) Likewise, the court found that
Allergan had not established a need for documents pertaining
to its competitors' coupon program. (Shire Order pp.
15-16) With regard to the rebate agreements, the court
specifically found that "Allergan has not established a
sufficient need for these highly confidential business
documents from a principal competitor." (Shire Order p.
present case, Express Scripts argues that Allergan seeks the
same types of documents sought from Shire, including
confidential rebate agreements and related documents. Express
Scripts contends that the court's denial of
Allergan's motion to compel in the Shire Order on the
basis that Allergan failed to show a need for the documents
is dispositive in this case. The Court agrees.
seeks documents and deposition testimony pertaining to rebate
agreements and bid documents. As stated in the Shire Order,
the documents concerning rebate agreements are highly
confidential and contain competitive information. The Court
agrees with the Shire Order's holding that Allergan has
failed to establish a sufficient need for the rebate
scope of discovery for actions filed in federal court is set
forth in Federal Rule of Civil Procedure 26. That rule
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.
Fed. R. Civ. P. 26(b)(1). However, a court may forbid
disclosure or discovery in order to protect a person
"from annoyance, embarrassment, oppression, or undue
burden or expense." Fed.R.Civ.P. 26(c)(1)(A).
Rule 45 of the Federal Rules of Civil Procedure, a court must
quash or modify a subpoena that "subjects a person to
undue burden." Fed.R.Civ.P. 45(d)(3)(A)(iv).
Furthermore, a court may quash or quash or modify a subpoena
if the subpoena requires "disclosing a trade secret or
other confidential research, development, or commercial
information." Fed.R.Civ.P. 45(d)(3)(B)(i).
'"[C]oncern for the unwanted burden thrust upon
non-parties is a factor entitled to special weight in
evaluating the balance of competing needs.'"
Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket
Matter No. 2,197 F.3d 922, 927 (8th Cir. 1999) (quoting
Cusumano v. Microsoft Corp.,162 F.3d 708, 717 (1st
Cir. 1998)). Where, as here, discovery is sought from a
non-party, courts have wide latitude in deciding motions
regarding non-party subpoenas, and courts are directed to
"give special consideration in assessing whether ...