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Court limits discovery in pharma antitrust suit

Where two pharmaceutical companies accused of violating antitrust laws sought discovery from new plaintiffs who recently joined the suit, the magistrate judge limited the requests to those topics that were relevant in the long-running suit and proportionate to the companies’ needs.


Defendants and plaintiffs have been engaged in extensive litigation concerning defendants’ alleged violation of antitrust law through a settlement agreement that resolved Merck and Glenmark’s earlier patent dispute.

After the court denied plaintiffs’ motion for class certification, the magistrate judge ordered any unnamed members of the unsuccessful direct purchase plaintiffs, or DPP, class to “file its claim or claims by way of Rule 3, Rule 15(a)(2), and/or Rule 20 of the Federal Rules of Civil Procedure,” in order to proceed individually as part of the consolidated case. In response to this order, 23 new DPPs joined individually in the MDL case.

Defendants then propounded on the new DPPs various discovery requests, including requests for admission, interrogatories and wide-ranging requests for production, or RFPs. After the parties were unable to reach an agreement regarding the new discovery requests, the magistrate judge ordered the new DPPs to some, but not all, of the requests. Defendants have filed objections to the report and recommendation.


Defendants contend that the report and recommendation bars them from conducting “virtually all discovery” requested from the new DPPs. Defendants submit that their discovery requests are both relevant and proportional to the needs of the case and characterize the magistrate judge’s ruling as improperly relying on “an MDL judge’s case management power” to “trump Defendants’ right to obtain basic, non-duplicative discovery from entities that only recently became parties to this case.” The court disagrees.

At the Aug. 17, 2022, hearing, the magistrate judge appropriately analyzed the relevance of defendants’ proposed discovery. As he pointed out, defendants are not unaware of the facts relevant to the new DPPs. Instead, the record in this case is “very, very well-developed, at this late stage of the litigation, since the original DPPs underwent extensive discovery of their own, and the new DPPs are simply ‘join[ing] in those [parties’] contentions.’”

Defendants counter that the record as to the new DPPs is, in fact, not well-established because the new entrants “include the Big Three Wholesalers who account for more than 95% of the claimed damages in this case.” Further, defendants emphasize that the sophistication of the Big Three Wholesalers supports that they are the “most likely” DPPs to have “responsive materials.”

This point is well-taken. Yet the magistrate judge correctly identified several facts which reduce the likelihood that the full scope of defendants’ RFPs would result in relevant evidence. Central to his analysis on this point was the fact that the new DPPs stipulated to be bound by numerous prior and pending orders imposed on the original DPPs.

Plaintiffs intend to simply “prove up the scope of [the new DPPs’] damages by the extent of their purchases and leave it at that.” The magistrate judge expressed doubt that much new discovery would even be relevant to defendants’ case, considering that the new DPPs’ purchases will be established at trial “based on sales data that the Defendants produce.”

At the hearing, defendants clarified that they “believe there is an employee or two or three at the [Big Three Wholesalers]” who made forecasts predicting the outcome and impact of the litigation between defendants and that, if discovered, these documents would be “directly relevant” to potentially undermine the experts’ opinions at trial. Notably, even though the magistrate judge harbored significant doubt as to whether these forecasts would be relevant, unless they were part of the basis on which the experts’ opinions relied, he ordered plaintiffs to produce them. The court finds that his relevance analysis was not clearly erroneous.

The magistrate judge also devoted significant time to carefully identify a proportionate level of RFPs, considering their likely relevance following the parties’ stipulations. The report and recommendation ensures that defendants will receive meaningful discovery from the new DPPs that is proportionate to their needs. Therefore, the magistrate judge’s exercise of discretion was not “clearly erroneous or [] contrary to law.”

Defendants’ objections overruled. Report and recommendation adopted.

In re: Zetia (Ezetimbie) Antitrust Litigation, Case No. 2:18-md-2836, Nov. 18, 2022. EDVA at Norfolk (Smith). VLW 022-3-533. 18 pp.

VLW 022-3-533