AND NOW, this 22nd day of September 2020, upon de novo review of the Amended
Second Report and Recommendation of Special Master David Marion as to Defendants’ letter
motion submitted to the Special Master to compel Direct Purchaser Plaintiffs (“DPPs”) to run
search terms and produce certain documents [MDL Doc. No. 1243], DPPs’ objections,
Defendants’ response, DPPs’ reply and the letter of the Direct Action Plaintiffs, it is hereby
ORDERED that the objections are OVERRULED[1] and the R&R is APPROVED as follows:
DPPs shall promptly run search terms and produce documents related to (1) all generic drugs at issue in the MDL as of September 1, 2019; (2) all Defendants named as of September 1, 2019;
(3) Activella, a brand drug equivalent; and (4) certain generic pharmaceutical industry events.
It is so ORDERED.
Footnotes
Although the nature of this MDL means that discovery burdens may fall more heavily upon
Defendants in some respects, all parties nevertheless are subject to discovery relating to their
claims and defenses. The R&R is consistent with the Court’s comprehensive approach to
discovery and DPPs have not shown that producing the discovery is unduly burdensome or
disproportionate given the expansive nature of the MDL and the importance of the issues in
dispute. The Court will not consider DPPs’ argument that the R&R is inconsistent with the
approach taken by Special Discovery Master Merenstein in a dispute over the production of trade
or industry association documents by IRPs. No R&R was issued in that instance because IRPs
(who are not identically situated to DPPs) and Defendants reached a compromise with regard to
the discovery. See DPP Ex. 15 [MDL Doc. No. 1270-16]. More specifically, the Court will not
consider counsel’s recollection of informal statements made during the process of meeting,
conferring, and negotiating.
