*1 THIS CAUSE comes before the Court on Movant Actelion Pharmaceuticals LTD.’s (“Actelion”) Motion to Compel Eric J. Miller to Produce Documents in Response to Rule 45 Subpoena, filed on November 28, 2023. (DE 1). Non-Party Eric J. Miller filed an Opposition (DE 6) on December 12, 2023, to which Plaintiff replied on December 19, 2023 (DE 11). Plaintiff subsequently filed a Corrected Reply Memorandum on January 10, 2024.[1]

I. Background

Actelion's Motion to Compel stems from a pending action between Plaintiff and Government Employees Health Association (“GEHA”) in the United States District Court of Maryland (“Maryland Action”). In the Maryland Action, GEHA seeks to represent a putative class of payors who allege that Plaintiff delayed market entry of generic bosentan by refusing to provide access to samples of Actelion's brand name drug Tracleer. GEHA filed an Amended Complaint in the Maryland Action on July 8, 2021, which was followed by several years of discovery. On September 26, 2023, GEHA filed a motion for class certification, arguing in relevant part that its proposed class is ascertainable using an administratively feasible method to identify potential class members. In support of that argument, GEHA relied on expert witness Laura Craft. Ms. Craft's proposed approach to ascertaining class members in part relies on the use of “claim form[s] and affidavit[s] ... used during a routine claims administration process” to confirm class membership. (DE 1 at 2). Ms. Craft relied on a declaration and deposition testimony from Eric J. Miller, Senior Vice President at the claims administration firm, A.B. Data. According to Actelion, both Ms. Craft's opinion and GEHA's ascertainability argument rely on Mr. Miller's factual representations about the claim administration process and its reliability. (DE 1 at 2).

Actelion asked GEHA's counsel on July 31, 2023 to schedule a deposition for Mr. Miller. Shortly thereafter, Actelion sent GEHA a Rule 45 subpoena ad testificandum for Mr. Miller's deposition. On October 19, 2023, Actelion served a subpoena duces tecum on Mr. Miller, seeking communications with GEHA's counsel relating to the Maryland Action and relating to Mr. Miller's declaration. Actelion's subpoena duces tecum is attached as Exhibit G (DE 1-7) (hereafter “Subpoena”) and contains 3 document requests: (1) “All communication between [Mr. Miller] and [GEHA's Counsel] regarding [the Maryland Action]”; (2) “All communication between [Mr. Miller] and [GEHA's Counsel] regarding [Mr. Miller's] Declaration”; (3) “All Documents and Communications which are, contain, or reflect drafts of [Mr. Miller's] Declaration.”

GEHA's counsel, on behalf of Mr. Miller, objected to the Subpoena on October 31, 2023. (DE 1 at 4). GEHA objected to producing the requested materials on the basis of timeliness, attorney-client privilege and work product protections, and the irrelevance of the materials. During the Parties’ meet and confer, GEHA's counsel stood on its objections and has not yet produced any documents in response to the Subpoena. Actelion filed the instant motion to compel Mr. Miller to produce all responsive documents.

II. Discussion

*2 Fed. R. Civ. P. 45 permits a party to procure discovery from a non-party though the issuance and service of a subpoena. Generally, the scope of discovery under a Rule 45 subpeona is the same as the scope of discovery under Rule 26. Specifically, Rule 26(b)(1) provides that the “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense... For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.” Fed. R. Civ. P. 26(b)(1). Courts construe relevancy “broadly to encompass any matter that bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)).

At the outset, Mr. Miller does not cite any law or authority to support the argument that this subpoena request is untimely because of the end of fact discovery in the Maryland Action. The good cause requirement for seeking to conduct fact discovery after a Court-ordered deadline applies to the Court whose deadline it is. The only time requirements that govern whether or not I can hear this Motion to Compel is Local rule 26.1(g)(1) which provides that “[a]ll motions related to discovery, including but not limited to motions to compel discovery ... shall be filed within thirty (30) days of the occurrence of grounds for the motion.” S.D. Fla. L.R. 26.1(g)(1). GEHA's counsel, on behalf of Mr. Miller, objected to the Subpoena on October 31, 2023. (DE 1 at 4). Actelion filed its Motion to Compel within the 30-day window of this occurrence, on November 28, 2023. The Motion is therefore timely.

Turning to the merits of Actelion's Motion to Compel, Mr. Miller objects to the requests on the basis of work-product privilege, attorney-client privilege, and relevance. I'll address each in turn with each of Plaintiff's document requests.

Request No. 1: “All communication between [Mr. Miller] and [GEHA's Counsel] regarding [the Maryland Action]” and Request No. 2: “All communication between [Mr. Miller] and [GEHA's Counsel] regarding [Mr. Miller's] Declaration”

Mr. Miller objects to these requests as quintessentially privileged by attorney-client privilege. In its Reply, Actelion states Mr. Miller has failed to show that every single communication between him and GEHA's counsel is protected by privilege or the work product doctrine and that the attorney-client privilege between counsel and Mr. Miller only formed sometime in late August 2023, eight to nine months after counsel began communicating with Mr. Miller. Mr. Miller also objects on the basis of relevance, arguing that since Movant already filed its brief opposing class certification that “this ship has sailed” and Movant has no more use for the documents it seeks.

I find that these communications are relevant to the Maryland Action in that they underlie the issue of class ascertainability. The passage of deadlines in the Parties’ briefing schedule does not make the relevance of the content moot. Further, Mr. Miller does not appear to have produced a privilege log as envisioned by Rule 45(e)(2)(A). Accordingly, I grant in part the Motion to Compel compliance with Request 1 and Request 2, but to the extent responsive documents are withheld on the basis of privilege, those documents must be reflected on a privilege log, which is due on the same day as Mr. Miller's production. The Court encourages the Parties to work out any objections reflected in a privilege log without judicial intervention.

Request No. 3: “All Documents and Communications which are, contain, or reflect drafts of [Mr. Miller's] Declaration.”

*3 Mr. Miller objects to this request on relevance again but primarily on the grounds that these documents are protected work-product. I agree. Drafts of Mr. Miller's Declaration would be documents produced for the purpose of litigation and include the mental impression of GEHA's counsel. Accordingly, Actelion's Motion to Compel compliance with Request 3 is denied.

Finally, Mr. Miller included a motion for appropriate sanctions under Rule 45(d). As I am granting in part Actelion's Motion to Compel, Rule 45(d) fee shifting is inappropriate here.

Based on the forgoing, it is ORDERED AND ADJUGED that:

SIGNED in Chambers at West Palm Beach, Florida this 17 day of January, 2024.