IQVIA argues that Veeva improperly references millions of e-mails produced in discovery and claims that the burden of reviewing the e-mails for responsive information is the same for either party. IQVIA also argues that the fact that Veeva does not maintain the responsive information in a ready-to-serve format does not excuse it of its discovery obligations. Furthermore, although Veeva's response to Interrogatory 44 includes objections on the basis of undue burden, Veeva does not make any burden argument in its opposition to the Motion.

IQVIA further argues that Veeva's representation that it responded to Interrogatory 44 with the best information available to it is belied by Veeva's own document production. Specifically, IQVIA cites to certain e-mails and a PowerPoint presentation concerning the relationship between Veeva and third-party matcher ZS Associates. Thus, IQVIA contends that Veeva is in possession of information responsive to Interrogatory 44 and should be compelled to produce it.

In addition, IQVIA contends that during the August 20, 2020, meet and confer between the parties, “Veeva did not deny that it could obtain the information requested by Interrogatory 44 by simply asking the right person(s) within Veeva.” In its opposition, Veeva contends that it only refused to discuss the details of privileged attorney-client communications, and that it subsequently produced its second supplemental response to Interrogatory 44 after the meet and confer. However, IQVIA contends that during the meet and confer, counsel for Veeva (1) represented that person(s) within Veeva knew the answer to Interrogatory 44, (2) acknowledged that Veeva has correspondence responsive to Interrogatory 44, and (3) discussed a method for searching such correspondence (by searching the name of third party matchers). Notwithstanding the representations during the meet and confer, Veeva did not produce any correspondence or responses from persons with knowledge within Veeva. Nor has Veeva identified any efforts undertaken on its part to conduct an investigation. IQVIA further argues that Veeva should, at the very least, produce a list of customers that previously subscribed to IQVIA's Market Research Offerings for which Veeva performed data matching. IQVIA contends that this is not “new information” as Veeva concedes that when it performed data matching services on behalf of a customer, it was able to determine whether the customer switched from IQVIA Market Research Offerings and thus, the information requested is within the scope of Interrogatory 44 because it helps to identify the Customer List requested in the first subpart. Finally, IQVIA argues that the Services Invoice Data produced by Veeva does not provide a reasonably comprehensive list of instances where Veeva performed data matching because in certain instances, Veeva performed the service free of charge and there are certain customers noticeably absent from the Services Invoice Data, despite having received data matching services from Veeva.

DISCUSSION

*7 Pursuant to Rule 33(a)(2), an interrogatory “may relate to any matter that may be inquired into under Rule 26(b)[,]” which provides that “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[.]” Fed. R. Civ. P. 33(a)(2), Fed. R. Civ. P. 26(b)(1). The parties do not dispute that Interrogatory 44 is relevant to this matter. Rather, the parties disagree on the sufficiency of Veeva's response.

Interrogatory 44 asks Veeva to: “Identify all customers that switched from any IQVIA Market Research Offerings to Veeva Reference Data and whether Veeva and/or the customer engaged a third-party for any matching work relating to transferring the customer's historical data, and if so, identify the third party.” Initially, Veeva refused to respond to the interrogatory arguing that IQVIA had exceeded the interrogatory limit. Veeva also objected to Interrogatory 44 as overbroad, unduly burdensome, and seeking information disproportional to the needs of the case. Veeva further objected that the interrogatory seeks information not necessarily within Veeva's knowledge, such as the business decisions of a customer, which is more properly within the purview of the customer.

Veeva twice supplemented its response to Interrogatory 44 providing additional information, including citations to specific documents that it contends contain information responsive to the interrogatory, and the actions in which IQVIA could engage to derive the information sought. Veeva maintained that pursuant to Rule 33(d), the burden of deriving the information sought in Interrogatory 44 is substantially the same for either party. Rule 33(d) provides:

The first subpart of Interrogatory 44 asks Veeva to “[i]dentify all customers that switched from any IQVIA Market Research Offering to Veeva Reference Data[.]” Veeva maintains that it “does not separately track in the ordinary course of its business which of its OpenData customers transitioned from IQVIA Market Research Offering.” Veeva has identified specific documents by bates number, including its “win-loss data” and its Subscription Invoice Data, and has also identified its 151 customers of OpenData. Veeva has identified how IQVIA could obtain the information sought – by comparing Veeva's current customer list with IQVIA records of its former customers. Although Veeva does not pinpoint the specific IQVIA records to review, surely IQVIA is in a better position to identify which of its records may reflect this information. To the extent IQVIA does not maintain a list or have the ability to identify its former customers, it is hard to understand how Veeva would have such information. Veeva has indicated that at times, it may learn through industry chatter that a customer is switching from IQVIA Market Research Offering to Veeva OpenData. In those instances, the Veeva sales representative may reflect such information in the win-loss data chart. Veeva recognizes that the win-loss data is not perfect, and in many situations it does not reflect which data vendor a customer previously used, however, it is the best information that Veeva has in response to Interrogatory 44. The Special Master finds this response to be sufficient. Although discovery is generally broad and liberal, Pacini v. Macy's, 193 F.R.D. 101, 103 (D.N.J. 1990), a party “ ‘cannot be compelled to create... documentary evidence which is not already in existence in some form[.]’ ” Graco, Inc. v. PMC Global, Inc., 2011 WL 1114233, at *37 (D.N.J., Mar. 24, 2011) (quoting Rockwell Int'l Corp. v. H. Wolfe Iron & Metal Co., 576 F.Supp. 511, 513 (E.D. Pa. 1983)).

*8 The second subpart of Interrogatory 44 seeks information as to whether “Veeva and/or the customer engaged a third-party for any matching work relating to transferring the customer's historical data, and if so, identify the third party.” Veeva responded that information about whether “a customer engaged a third party to assist in its transition to Veeva's OpenData is information more properly within the purview of the customer and not information centrally maintained by Veeva.” Veeva further provided that “to the extent Veeva retains one-off records – for example in e-mail correspondence with the customer – about that customer's engagement with a third party, Veeva objects under Rule 33(d), because these subparts seek information that may be determined by examining the millions of relevant e-mail correspondence that Veeva has already produced, and the burden of deriving the answer to the Interrogatory will be substantially the same for either party.” Veeva further clarified that it enters into ADUAs with third-parties, which are universal agreements allowing third parties access to Veeva OpenData for the purpose of providing certain services to Veeva OpenData customers. Third parties with such ADUAs would be able to assist a customer in transitioning from IQVIA Market Research Offering to Veeva OpenData without notifying Veeva. Veeva acknowledges that it offers a Data Matcher tool to assist customers transitioning from other providers to Veeva OpenData. A third party using Veeva's Data Matcher tool is required to sign a SOW. Thus, by running a report of the SOWs, Veeva is able to identify a subset of third parties that have used Veeva's Data Matcher tool to assist customers with the transition from IQVIA Market Research Offerings to Veeva Open Data. Veeva produced the report. Veeva further responded that it “is unaware of means to identify third parties that customers engage for matching projects that do not involve the Data Matcher tool.” Veeva contends that IQVIA is in a better position to determine which third parties helped customers transition from IQVIA Market Research Offerings to Veeva Open Data because it enters into more granular data access agreements with third parties than Veeva. Veeva believes that certain agreements – specifically, Data Integration TPAs, appear designed specifically to require IQVIA's permission before a third party can assist a customer's transition from any IQVIA Market Research Offering to Veeva Open Data. IQVIA contends that the report contains SOWs that post-date the filing of the Complaint and thus are not within the relevant timeframe. Veeva responds that it has already produced a list of non-parties that received authorization to use Veeva's Data Matcher Tool, which can be used to match OpenData with IQVIA Market Research Offering. Veeva contends that the list it produced may not be perfect, but it is the best information that Veeva has responsive to Interrogatory 44. Veeva contends that to the extent a non-party was retained by a customer to perform data matching services, the non-party would have to request authorization from IQVIA to execute that project. Thus, Veeva maintains that IQVIA, not Veeva, is in a better position to obtain this information. IQVIA argues that its TPAs are only useful if the signatories actually follow them. However, there is no evidence presented to the Special Master to suggest that non-parties would fail to follow the terms of IQVIA's TPAs. IQVIA also contends that its Data Integration TPAs do not identify the precise circumstances for which the use was requested. However, Veeva responds that IQVIA's internal documents, including its TPA request system, likely contain more specific information as to the precise project for which the TPA was executed.

Veeva contends that it has already searched its records for, and produced, the responsive information it possesses, in the format in which it possesses it. As it pertains to a customer's decision to engage a third-party to perform data matching services, Veeva has indicated that it would have only learned of such a relationship through industry chatter or if the customer voluntarily provided that information to Veeva. Veeva denies maintaining any formal records of this information. To the extent it did maintain a record of the information, the most likely location would be its win-loss data. The Special Master finds Veeva's response to be sufficient. Veeva further responded that to the extent it maintains “one-off records” for example “in e-mail correspondence with the customer,” IQVIA is in the same position to examine the millions of e-mails exchanged in this matter as Veeva. The Special Master does not take this to mean that Veeva is aware of e-mail correspondence on the issue and is refusing to identify that information for IQVIA. Rather, the Special Master understands Veeva's response to recognize the possibility that a customer may have shared this information via e-mail with Veeva. Thus, the Special Master finds that Veeva has sufficiently responded to IQVIA's request for information concerning its knowledge of whether Veeva's customers retained a third-party to perform data matching services. IQVIA does not provide any compelling evidence that Veeva is intentionally withholding information responsive to Interrogatory 44. Veeva disputes that it maintains the requested information in the regular course of its business and the Special Master has not been provided any evidence to believe otherwise.

Notwithstanding the foregoing, the Special Master makes the following observations. Veeva has characterized Interrogatory 44 as requesting a “Non-Party List” of third-parties that assisted customers in switching from IQVIA Reference Data to Veeva OpenData. It has then denied maintaining such a list in the regular course of its business. To the extent Veeva is using its interpretation of Interrogatory 44 as requesting a “list” to avoid identifying the third-parties requested, such conduct would be improper. Interrogatory 44 does not specifically request a “list,” but rather, the identities of any third-parties, known to Veeva, that engaged in matching work for Veeva's customers that switched from IQVIA Reference Data to Veeva OpenData. IQVIA also argues that during its meet and confer, Veeva (1) represented that person(s) within Veeva know the answer to Interrogatory 44, (2) acknowledged that Veeva had correspondence responsive to Interrogatory 44, and (3) discussed a method for searching such correspondence (by name of the third party matchers). Thus, to the extent Veeva is aware, based upon a reasonable inquiry of its employees or certain documents previously produced in this matter, of any third-parties that performed matching work for its customers, it is directed to identify those third-parties for IQVIA, irrespective of whether that information is currently maintained in a formal “list” format. Finally, Interrogatory 44 asked whether “Veeva and/or the customer” engaged a third-party for any matching work. Veeva has not responded to the interrogatory as to whether it retained any third-parties on behalf of its customers to conduct matching work. Veeva is directed to provide that response, and if in the affirmative, to identify those third-parties and for which customers those services were provided.

II. CONCLUSION

*9 For the reasons set forth above, the Special Master GRANTS IN PART AND DENIES IN PART IQVIA's Motion to Compel a Response to IQVIA's Interrogatory No. 44.