eDiscovery Assistant

City of Rockford v. Mallinckrodt ARD, Inc.

2020 WL 11191830 (N.D. Ill. 2020)

May 27, 2020

Jensen, Lisa A., United States Magistrate Judge

Download PDF

To Cite List

Summary

The court quashed the defendant's subpoena for ESI, finding that the request was overbroad and not limited to documents relevant to the case. The court also found that the defendants had failed to show how all communications from 2007 to the present were relevant to the litigation or necessary to defend the claims against them.

Additional Decisions

City of Rockford, Plaintiff,
v.
Mallinckrodt ARD, Inc., et al., Defendants

Case No. 17 CV 50107

United States District Court, N.D. Illinois, Western Division

Filed May 27, 2020

Counsel

Donald E. Haviland, Jr., William H. Platt, II, Haviland Hughes, Ambler, PA, Peter J. Flowers, Meyers & Flowers, LLC, Chicago, IL, Anthony Louis DeWitt, James R. Bartimus, Pro Hac Vice, Bartimus, Frickleton, Robertson, Rader PC, Leawood, KS, Ifeanyichukwu C. Mogbana, Kerry Franklin Partridge, City of Rockford Department of Law, Rockford, IL, Jonathan Peter Mincieli, Michael W. Lenert, Meyers & Flowers, LLC, St. Charles, IL, for Plaintiff City of Rockford.
David Eric Shapland, Pro Hac Vice, Arnold & Porter Kaye Scholer LLP, Los Angeles, CA, Debra E. Schreck, Pro Hac Vice, Arnold & Porter Kaye Scholer LLP, New York, NY, Dylan Scot Young, Pro Hac Vice, Keron Jovon Morris, Pro Hac Vice, Laura Shores, Adam Michael Pergament, Michael B. Bernstein, Sonia Kuester Pfaffenroth, Sean Patrick Hennessy, Pro Hac Vice, Wrede Smith, Pro Hac Vice, Matthew M. Wolf, Ryan Zane Watts, Arnold & Porter Kaye Scholer LLP, Washington, DC, Joel M. L. Huotari, Scott Collins Sullivan, WilliamsMcCarthy LLP, Rockford, IL, for Defendant Mallinckrodt ARD, Inc.
Laura Shores, Adam Michael Pergament, Michael B. Bernstein, Sonia Kuester Pfaffenroth, Matthew M. Wolf, Ryan Zane Watts, Arnold & Porter Kaye Scholer LLP, Washington, DC, Joel M. L. Huotari, Scott Collins Sullivan, WilliamsMcCarthy LLP, Rockford, IL, for Defendant Mallinckrodt PLC.
John Kirk Goza, Pro Hac Vice, Meghan Ann McCaffrey, Keith H. Forst, Michael John Lyle, Eric C. Lyttle, Ethan Glass, Michael Bonanno, Quinn Emanuel Urquhart & Sullivan, LLP, Washington, DC, Jan H. Ohlander, Reno & Zahm LLP, Rockford, IL, for Defendant United Biosource Corporation.
Michael John Lyle, Eric C. Lyttle, Ethan Glass, Michael Bonanno, Meghan Ann McCaffrey, Quinn Emanuel Urquhart & Sullivan, LLP, Washington, DC, Jan H. Ohlander, Reno & Zahm LLP, Rockford, IL, for Defendants Express Scripts Holding Company, Curascript, Inc., Accredo Health Group, Inc.
Kathleen Lanigan, Pro Hac Vice, Matthew Kenneth Wasserman, Pro Hac Vice, Michael John Lyle, Eric C. Lyttle, Ethan Glass, Michael Bonanno, Meghan Ann McCaffrey, Quinn Emanuel Urquhart & Sullivan LLP, Washington, DC, Jan H. Ohlander, Reno & Zahm LLP, Rockford, IL, for Defendant Express Scripts, Inc.

Jensen, Lisa A., United States Magistrate Judge

ORDER

*1 Plaintiff City of Rockford's motion to quash [391] is granted as stated herein.

STATEMENT

Plaintiff filed the instant suit alleging, in part, violations of federal and state antitrust and consumer protection laws based on an alleged anticompetitive scheme to maintain a monopoly for adrenocorticotropic hormone drugs, namely Acthar. As a result, Plaintiff alleges Defendants substantially inflated the price for Acthar. Plaintiff sues on its own behalf and on behalf of “[a]ll third party payors and their beneficiaries in the United States and its Territories that paid for Acthar from August 2007 through the present.” Plaintiff's Second Amended Complaint at 43, Dkt. 98.

Plaintiff has filed a motion seeking to quash Defendants Express Scripts Holding Company, Express Scripts, Inc., Curascript, Inc., Accredo Health Group, Inc., and United Biosource Corporation's subpoena which seeks various categories of documents from ELMC Risk Solutions, LLC (“ELMC”). Defendants have responded. Despite the length of the parties' briefs, they fail to adequately inform the Court of their positions on this motion. This is a recurring problem. Many arguments and accusations are made but not fleshed out or properly supported. Future discovery motions must be supported with proper evidence and authority before they will be considered by this Court. With this in mind, the Court will now address the motion at hand.

I. Rule 45

While titled a “motion to quash the subpoena,” Plaintiff's motion seeks to quash only Request for Production Number 5 (“Request No. 5”), which seeks “[a]ll communications with the Haviland Hughes Law Firm regarding lawsuits related to Acthar.” Plaintiff's Motion, Ex A. at 10, Dkt. 391-3. Thus, this Court construes the motion as one to “modify” a subpoena pursuant to Federal Rule of Civil Procedure 45(d)(3).

Rule 45 requires district courts to, upon motion, quash or modify a subpoena if it: (1) fails to allow a reasonable time for compliance; (2) requires the disclosure of privileged or other protected matter; (3) subjects a person to an undue burden; (4) requires the disclosure of trade secrets or other confidential commercial information; or (5) requires the disclosure of an unretained expert's opinion. See Fed. R. Civ. P. 45(d)(3); see also Stock v. Integrated Health Plan, Inc., 241 F.R.D. 618, 621 (S.D. Ill. 2007).

Plaintiff challenges Request No. 5 on all the above listed bases. However, Plaintiff has standing only to protect its legitimate interests, such as the assertion of a privilege or other protection in the information sought by the subpoena. See Allstate Ins. Co. v. Electrolux Home Prod., Inc., No. 16-CV-4161, 2017 WL 5478297, at *3 (N.D. Ill. Nov. 15, 2017). Plaintiff does not have standing to assert any objection to the subpoena on behalf of a third party like ELMC or Mr. John Adler, a current employee of ELMC. Id.

Specifically, Plaintiff argues that the subpoena fails to afford ELMC and Plaintiff a reasonable time to object. Yet, ELMC has no objection to the subpoena, and Plaintiff's own concern is moot with its objection currently pending before this Court for a ruling. Plaintiff further argues that the subpoena fails to afford ELMC a reasonable time to respond and responding would impose undue burdens. However, Plaintiff has no standing under Rule 45 to argue timeliness or undue burden on behalf of a producing party. See Parker v. Four Seasons Hotels, Ltd., 291 F.R.D. 181, 187 (N.D. Ill. 2013). Moreover, Defendants represent that ELMC has already agreed to produce the requested documents.

*2 Plaintiff similarly has no standing to argue the subpoena improperly requires disclosure of confidential commercial information. ELMC and Mr. Adler have not asserted privilege or other privacy interests over any of the communications requested. Furthermore, Plaintiff has not explained what information it is seeking to protect or otherwise indicated that the privacy interest belongs to Plaintiff as opposed to ELMC or Mr. Adler.

Lastly, Plaintiff has no standing to challenge the subpoena for requiring the disclosure of an unretained expert's opinion. See Wisconsin Res. Prot. Council v. Flambeau Mining Co., No. 11-CV-45-BBC, 2012 WL 12996210, at *3 (W.D. Wis. May 17, 2012) (denying motion to quash and holding that “defendant is not the proper party to invoke Rule 45(c)(3)(B)(ii), which is aimed at protecting the intellectual property of non-party experts”). Again, Mr. Adler has not objected to the subpoena. Plaintiff has offered no evidence to indicate that its relationship with Mr. Adler affords standing to raise this objection. Plaintiff describes Mr. Adler as an “unretained, potential expert who has consulted with Plaintiff's counsel in the past.” Plaintiff's Motion at 7, Dkt. 391. Therefore, it is Mr. Adler's objection to raise. Even the case Plaintiff cites for support emphasizes that the “purpose of this rule is to protect experts from being required to provide expert advice or assistance without proper compensation.” Mylan Inc. v. Analysis Grp., Inc., No. 18-MC-209-DDC-TJJ, 2018 WL 5043157, at *3 (D. Kan. Oct. 17, 2018) (internal quotation marks and citation omitted). That is not a concern here.

Although Plaintiff does have standing to assert that the documents sought are privileged or otherwise protected, Plaintiff has not satisfied its burden. See Simon, 2017 WL 66818, at *2 (“The party seeking to quash the subpoena has the burden of demonstrating that the information or documents sought are either privileged or implicate a privacy interest.”). Plaintiff asserts claims of work product protection, attorney client privilege and deliberative process privilege.

Plaintiff's blanket claim that the communications are subject to work product protection is insufficient. See Slaven v. Great Am. Ins. Co., 83 F. Supp. 3d 789, 796 (N.D. Ill. 2015) (“All jurisdictions adhere to the basic principle that the burden is on the party seeking to withhold material from discovery to demonstrate by competent evidence and with particularity that the attorney/client privilege or work-product applies to each document that is claimed to be privileged. Blanket claims of privilege or conclusory assertions are insufficient to carry this burden.”) (internal citations omitted). No privilege log has been provided and no documents were submitted for the Court's review. Nor has there been any attempt to define for the Court how the subject communications constitute work product. Often the objecting party does not have access to the documents requested. But here, Plaintiff's counsel was the subject of the communications with Mr. Adler. Presumably counsel would have all these communications. Yet, counsel has failed to provide a specific discussion of the communications at issue and why they are subject to protection.

Plaintiff's assertion of the deliberative process and attorney client privilege is similarly unsupported. Plaintiff devotes only three sentences to the deliberative process privilege argument and makes only one passing reference to attorney client privilege. Without further support, Plaintiff's objection based on these claims of privilege is without merit.

II. Rule 26

*3 The Court's inquiry is not over, however, because Plaintiff alternatively argues for a protective order under Rule 26(c)(1), asserting that the subpoena requests documents that are irrelevant to the instant case and thus is intended to harass and annoy Plaintiff and its counsel. A district court may, “for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). Plaintiff's request for a protective order under Rule 26(c)(1) focuses on the relevancy of the requested documents. Moreover, whether reviewing Plaintiff's motion challenging the subpoena under Rule 45 or Rule 26, “[t]he initial inquiry in enforcement of any discovery request is one of relevance.” Autotech Techs. Ltd. Partnership v. Automationdirect.com, Inc., 235 F.R.D. 435, 440 (N.D. Ill. 2006); Third Degree Films, Inc. v. Does 1-2010, No. 4:11 MC 2, 2011 WL 4759283, at *1 (N.D. Ind. Oct. 6, 2011) (“However, implicit in the rule is the requirement that a subpoena seek relevant information.”). In fact, the Court has an independent duty to quash a subpoena as overbroad if it does not limit the documents requested to those relevant to the underlying action. See Stock, 241 F.R.D. at 621 (“Although the Seventh Circuit Court of Appeals has not explicitly ruled that district courts may quash or modify a subpoena for seeking information irrelevant to the merits of a case, it has long recognized that the courts have wide discretion in limiting the scope of discovery to topics of ultimate relevance.”) (internal quotation marks omitted) (collecting cases); Sanchez Y Martin, S.A. de C.V. v. Dos Amigos, Inc., No. 17CV1943 LAB (JMA), 2018 WL 2387580, at *4 (S.D. Cal. May 24, 2018) (“Even assuming arguendo Defendant's objections had been waived, because the subpoena seeks information not relevant to the claims or defenses in this case, the Court would still not require compliance with the subpoena.”); Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 241 (E.D. Va. 2012).

“The scope of material obtainable pursuant to a Rule 45 subpoena is as broad as what is otherwise permitted under Rule 26(b)(1).” In re Kleimar N.V v. Benxi Iron & Steel Am., Ltd., No. 17-CV-01287, 2017 WL 3386115, at *7 (N.D. Ill. Aug. 7, 2017) (internal quotation marks and citation omitted). Rule 26(b)(1) provides that “[p]arties 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.” A party seeking such discovery has the initial burden of establishing that the requested documents are relevant under Rule 26. See West v. Miller, No. 05C4977, 2006 WL 2349988, at *2 (N.D. Ill. Aug. 11, 2006), aff'd, No. 05 C 4977, 2007 WL 541943 (N.D. Ill. Feb. 13, 2007). If the discovery appears relevant, the burden shifts to the party objecting to the discovery request to show why the request is not relevant. Id.

In Request No. 5, Defendants seek “[a]ll communications with the Haviland Hughes Law Firm regarding lawsuits related to Acthar.” Plaintiff's Motion, Ex A. at 10, Dkt. 391-3. The request seeks these communications from January 2007 through the present.

In support of their request, Defendants represent that Mr. Adler is a key fact witness.[1] In 2015, Mr. Adler and his consulting firm were retained by Plaintiff to consult on the Pharmacy Benefit Management Agreement (“PBM Agreement”) between Plaintiff and Defendants that is, in part, at issue in this case. See Plaintiff's Motion, Ex A, Dkt. 391-3. Mr. Adler negotiated that PBM Agreement. Therefore, Defendants assert that Mr. Adler's statements regarding the facts underlying this lawsuit and his views concerning those facts are relevant to this case. However, Request No. 5 is not limited to such information and as such is not the “targeted request” that Defendants claim it is. Rather, it requests communications “regarding lawsuits related to Acthar.”[2] While this instant case is one of those lawsuits, Defendants have not shown how communications about other Acthar litigation is relevant. Request No. 5 also makes no mention of information or services ELMC or Mr. Adler provided to Plaintiff pursuant to the PBM Agreement. In fact, if Defendants are simply seeking the facts related to ELMC or Mr. Adler's negotiation of the PBM Agreement, that information is already requested in Requests Number 1 through 4 of the subpoena, which Plaintiff does not seek to quash. See Plaintiff's Motion, Ex A, Dkt. 391-3.

*4 Defendants have further failed to show how all communications from 2007 through the present are relevant to this litigation or necessary to defend the claims against them. The present litigation was filed in 2017. Defendants do not identify any “lawsuits involving Acthar” that were filed prior to 2017. It is true that one component of Plaintiff's antitrust claim is their allegation that Defendants conspired with each other in entering into an exclusive distribution agreement for Acthar in 2007. But Defendants do not claim that ELMC was involved in 2007 and admit that Plaintiff did not hire Mr. Adler or his consulting firm until 2015. Thus, not only is the subject matter overbroad, so too is the time period.

Defendants next argue that Request No. 5 seeks information that is relevant to Mr. Adler's credibility as a witness. They point to one email[3] that indicates that in April of 2018 Plaintiff's counsel sought information from Mr. Adler to assist in the preparation of other lawsuits involving Acthar.[4] Without explanation, Defendants argue that this email “and others like it may be relevant to establish that Mr. Adler is biased.” Defendants' Response at 9, Dkt. 397. Yet, Defendants do not elaborate on this argument. While it is true that proof of a witness's bias is almost always relevant, see Surgery Ctr. at 900 N. Michigan Ave., LLC v. Am. Physicians Assurance Corp., Inc., 317 F.R.D. 620, 625–26 (N.D. Ill. 2016), there must be some explanation as to how the sought after information may tend to prove bias. Here there is none. Mr. Adler and his consulting firm, which ELMC now owns, are Plaintiff's consultants pursuant to the terms of the PBM Agreement. See Plaintiff's Motion, Ex A, Dkt. 391-3. Without further explanation, it is not apparent from this one email that the provision of claims information from an agent to its principal is evidence of bias.[5] Moreover, Defendants do not restrict their request to just this issue, but instead request all communications between ELMC and Plaintiff's counsel regarding Acthar litigation. Finally, Defendants provide no explanation for why they would need such information dating back to 2007.

Lastly, Defendants' argue that Request No. 5 is relevant because it may reveal a possible ethical violation pursuant to Illinois Rule of Professional Conduct 4.2.[6] Specifically, Defendants state that they are entitled to determine the extent to which Plaintiff's counsel used Mr. Adler to obtain information from Express Scripts after this lawsuit was filed. The rule at issue prohibits an attorney from communicating with a represented party. It does not restrict an attorney's communications with his client's consultant. See Scanlan v. Eisenberg, 893 F. Supp. 2d 945, 951 (N.D. Ill. 2012). According to the email at issue, Plaintiff's counsel first contacted Mr. Adler for information which was contained in ELMC's warehouse. When counsel sought additional information, he did not contact Defendants directly or otherwise direct Mr. Adler to do so. There is no indication that Plaintiff's counsel knew that the additional information requested would come from Defendants directly rather than from ELMC's warehouse. Defendants' one sentence accusation of possible ethical violations does not even address these issues, cite to any case law to support that discovery into possible ethical violations is justified on such a flimsy record or otherwise attempt to develop this issue for the Court. This Court finds no evidence of an ethical violation on this record, and Defendants request for further discovery on this issue is denied.[7]

*5 For all the reasons set forth above, the Court finds that Request No. 5 must be quashed as it is overbroad on its face and as drafted seeks information that is not relevant to this case. This Order does not prevent ELMC from responding to Requests Number 1 through 4 in the subpoena, as they are not the subject of Plaintiff's motion. Additionally, this Court is not foreclosing the possibility that a more tailored request in accordance with this Court's Order may seek relevant communications. Therefore, following ELMC's production in response to Requests Number 1 through 4 of the subpoena, if Defendants believe they need additional relevant information, Defendants shall seek leave of this Court before reissuing Request No. 5 in any modified form. Any proposed request must both limit the scope in duration and to information relevant to the claims or defenses in this case as outlined herein.

To the extent any modified request encompasses what Plaintiff and its counsel believe to be work product or other privileged information, they will be required to provide a detailed description of the communications they seek to protect and the basis to assert such protections.

By:

Footnotes

[1]

However, the parties do not indicate whether Mr. Adler has been disclosed as a witness in either sides Rule 26(a)(1) disclosures.

[2]

This Court understands there to be five lawsuits filed by Plaintiff's counsel that are currently pending alleging antitrust violations in relation to Acthar pricing.

[3]

The email states in part, “We need your help in getting Acthar Pa and Nj off the ground. The data you sent from your warehouse for Local 542 and Local 322 was dynamite, but didn't give us the dates of administration.” Defendants' Response, Ex. A. at 4, Dkt. 397-1.

[4]

The lawsuits were filed by Plaintiff's counsel in Pennsylvania state court and the District of New Jersey on behalf of Local 542 and Local 322, respectively.

[5]

While the existence of an agent-principal relationship is certainly relevant to prove bias, that information is already in Defendants' possession.

[6]

Although Defendants cite to the Illinois Rules of Professional Conduct, this Court has adopted the American Bar Association's Model Rules of Professional Conduct. See Local Rule 83.50. Nevertheless, the rules are identical.

[7]

While this Court is quashing the subpoena because it is overbroad on its face, the Court notes that Defendants' unsupported allegation of possible ethical violations on this record in this Court's opinion borders on harassment in violation of Rule 26(c)(1).