United States District Court for the District of Columbia
April 22, 2005.
IN RE LORAZEPAM & CLORAZEPATE ANTITRUST LITIGATION. This document relates to: HEALTH CARE SERVICE CORPORATION, Plaintiff,
MYLAN LABORATORIES, INC., et al., Defendants, and BLUE CROSS BLUE SHIELD OF MINNESOTA, et al., Plaintiffs, v. MYLAN LABORATORIES, INC., et al., Defendants.
The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge
In this memorandum, I resolve the objections the defendants,
Mylan Laboratories et al. ("Mylan"), make to certain exhibits
plaintiffs ("the Blues") have listed in the joint pre-trial
statements as exhibits they intend to offer into evidence at the
trial of this case.
According to Mylan, the Blues are attempting to introduce into
evidence letters they received complaining about the increase in the price of the drugs
at issue, Lorazepam and Clorazepate. Since the submission of
Mylan's written objections, Chief Judge Hogan has concluded that
documents evidencing such complaints are inadmissible, thereby
accepting Mylan's argument that they are inadmissible hearsay and
rendering moot any question of their authenticity.
I note that the Blues seem to think that they will still be
able to examine Mylan's witnesses "on their receipt of this large
volume of customer complaints and their response to these
complaints." Plaintiffs' Joint Memorandum in Opposition to
Defendants' Memorandum of Law in Support of Their Hearsay and
Authenticity Objections to Documents on Plaintiffs' Exhibit List
("Plains. Mot.") at 3. If they think that such questions and a
positive answer by a Mylan employee will then render the
complaints admissible, they have misread the Chief Judge's
Opinion. He specifically indicated that "[p]laintiffs may examine
Mylan's witness on the fact that Mylan received a large volume of
consumer complaints following its price increases on this limited
issue, but may not delve into the content of those complaints."
Memorandum Opinion of April 15, 2005 at n. 3. Thus, the Chief
Judge has already unequivocally ruled that the complaints are
inadmissible and whether they are hearsay or authentic is of no
In my earlier order, I indicated that any document that was
submitted by either party in response to a discovery demand or
was used by either party during the deposition of a witness was
presumed to be authentic and a business record, admissible under
Rule 803(6) of the Federal Rules of Evidence. Order of April 5,
2005 at 2.
The Blues read my order to have shifted to Mylan the burden of
establishing that such a document was not authentic or a business record. But, the
controlling principle is that if the law creates a presumption,
the burden of proof shifts to the opposing party to produce
evidence overcoming the presumption. Once that party has done so,
the presumption bursts like a bubble, and the party who had the
burden of proof in the first place must ordinarily then shoulder
the burden of persuasion.*fn1 Thus, once Mylan comes forward
with evidence tending to show that the document was neither
authentic nor a business record, the Blues then have the burden,
cast upon them by the Federal Rules of Evidence, to establish
that the document is authentic and not hearsay.
Moreover, the courts have understandably concluded that, if a
party produces a document in response to a discovery demand or
subpoena, it cannot then argue that, despite its production, the document is not authentic.*fn2 Obviously, courts are not
to be trifled with by a party producing, let us say, the
plaintiff's personnel folder in response to a demand for its
production and then entertaining that party's argument that the
folder is not what that party implicitly said it was when it
produced the document. It hardly follows that, because a piece of
paper was found in a company's files and produced in discovery,
the party who produced it is thereafter disabled from resisting
its admission into evidence on the grounds that there is an
absence of evidence "sufficient to support a finding that the
matter in question is what its proponent claims." Fed.R. Evid.
901(a). To produce such evidence, there would have to be, for
example, testimony that a matter is what it is claimed to be.
Fed.R. Evid. 901(b)(1). While Mylan's production of documents in
discovery robs it of any right to claim that the document was not
in its files or not responsive to the terms of the production
sought, Mylan may still argue that the existence of the document
in its files does not itself render the document admissible
without some further proof that it is what the Blues claim it to
be. Disabling Mylan from making that argument would mean that any
piece of paper found anywhere in the files of a multi-national
corporation is ipso facto authentic even though, as is true
here, there is no evidence of who wrote it, where it came from,
or why it was created. While this may be the point at which the
concepts of authenticity and adequate foundation meet, surely
evidence cannot be admitted unless, either on its face or because
of other proof, it is shown to be what it is claimed to be and is
therefore relevant to the issues presented. If one cannot say
with any certainty what the document is, it is impossible to know
its essence, and without knowing that, one cannot even ask
whether it is what it is claimed to be.
With this fundamental principle in mind, I turn to each of the
documents to which Mylan objects on the grounds that the Blues
have not established they are authentic.
1. Number 10694. This two-page chart of numbers has no
internal indication of its meaning and the Blues tender none. In
the absence of such a showing, there is no indication of who
created the document or how, when, or why it was created. As just
explained, there is therefore no way of knowing what the document
is and no way of establishing that it is what is claimed to be
under Rule 901(b)(1). The objection is sustained.
2. Number 10719. Other than a handwritten indication that the
document is "From Pace," there is once again no indication of who
created the document or how, when, or why it was created. Without
any such indication, there can be no claim of what the document
is, let alone proof that the document is what it is claimed to
be. The objection is sustained.
3. Numbers 11380, 11395, 11559, 11560, 11562, 11563, 11372,
10348, 11582. These documents were prepared by the Blues and
will apparently be offered by them at trial with an explanation
of how the Blues prepared them. Pending that explanation, the
objection is overruled.
4. Numbers 10680, 10752, 11032, 11033. These documents,
apparently authored by a man named B. Jerome Jackson, appear to
announce some sort of governmental action because they are
addressed to "All Regional Administrators" and refer to Medicaid.
As Mylan points out, however, a witness testified under oath that
he did not know who "B. Jerome Jackson" was, that he did not
recall receiving the documents, and that he was not familiar with
them. Defendants' Memorandum of Law in Support of Their Hearsay
and Authenticity Objections to Documents on Plaintiffs' Exhibit List That Were Produced by Any Party to This
Action or Were Used During a Deposition in This Action ("Defs.
Mem.") at 11-12. There is no testimony proferred by the Blues
that the documents were issued by a government agency, and the
documents certainly do not fall within the self-authenticating
exception in Rule 901(b)(7) because there is a lack of evidence
that the document "is from the public office where items of this
nature are kept." Fed.R. Evid. 901(b)(7). I will therefore
sustain the objection with the understanding that the Blues
should be permitted to establish by testimony, if they can, that
the document is what it is claimed to be, i.e., a document
issued by a governmental agency. The Blues also may attempt to
establish that the document is from a public office where records
of this nature are kept.
5. Number 10749. This document is a summary report of Mylan's
interviews of representatives of its customers. Rule 805 requires
that "[h]earsay included within hearsay" is not excluded "if each
party of the combined statements conforms with an exception to
the hearsay rule provided in these rules." Fed.R. Evid. 805. The
report itself is admissible as either a business record or an
admission of a party opponent. The statements of the interviewees
are hearsay and therefore may not be admitted for the truth of
the contents. The objection, subject to the limitation that the
statements of the interviewees are not admissible for the truth
of their contents, is overruled.
6. Numbers 11026, 11027, 11028. Milan Puskar testified that
he did not know how these documents came to be in Mylan's
possession. Defs. Mem. at 9. There is, therefore, no evidence of
when, how, or by whom they were created except that one of the
documents is on the letterhead of a company called Watson,
meaning there is no evidence that they were created in the ordinary course of business. The objection to them is
7. Numbers 11380, 11395, 11559, 11560, 11562, 11563, 11372 and
11582. As noted above, the Blues prepared these documents and
thus the hearsay objection is overruled, pending testimony from
the Blues' witnesses as to their significance.
8. Number 10714. At the base of this document are four
handwritten jokes that the Blues agreed to redact, in a victory
for good taste. The objection will be deemed overruled once the
jokes are redacted.
9. Number 10747. The only testimony concerning this
spreadsheet is that David Workman (who is not further identified)
was not familiar with this document and did not recognize the
handwriting that is on it. Defs. Mem. at 13. In the absence of
any evidence whatsoever as to what the document is and how it
came into existence, it is impossible to conclude that it was
kept in the regular course of business. Fed.R. Evid. 803(6). The
Blues indicate that it may be admissible for a non-hearsay
purpose, "showing that Mylan assessed which generic drugs had
which competitors when it analyzed which APIs should be the
subject of its Exclusive Agreements." Plains. Mem. at 9. Whether
that showing can be made is a function of the foundation the
Blues can lay for the admissibility of the document. I cannot
rule on that at this point, but I can conclude that Mylan's
objection to the documents being admitted for the truth of their
contents must be sustained.
10. Number 11165. These handwritten notes evidence complaints
made and under the Chief Judge's ruling, discussed above, are
11. Numbers 11172, 1193, 11194, 11195, 11987. These are
newspaper articles, and the Blues admit that they are
inadmissible hearsay. The Blues note that Mylan has listed on its exhibit list newspaper articles. I conclude that all newspaper
articles tendered by either party are inadmissible if offered to
prove the truth of their contents.
An Order accompanies this Memorandum Opinion.