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Meijer, Inc. v. Warner Chilcott Holdings Co.

September 21, 2007

MEIJER, INC., ET AL., PLAINTIFFS,
v.
WARNER CHILCOTT HOLDINGS CO., III, LTD., ET AL., DEFENDANTS.
WALGREEN CO., ET AL., PLAINTIFFS,
v.
WARNER CHILCOTT HOLDINGS CO, III, LTD., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Alan Kay United States Magistrate Judge

MEMORANDUM OPINION

Pending before the Court are Defendant Barr Pharmaceutical Inc.'s Motion to Compel Answers to Interrogatories and the Production of Documents ("First Motion to Compel") [55/28]; Direct Purchaser Class Plaintiffs' Response to the First Motion to Compel, filed on behalf of the Meijer Plaintiffs ("Meijer Opposition" ) [59]; Walgreen Plaintiffs' Memorandum in Opposition to First Motion to Compel ("Walgreen Opposition") [29]; and Defendant Barr Pharmaceutical Inc's ("Barr") reply to the Opposition to First Motion to Compel ("Reply to First Motion") [74/40]. Also pending before this Court are Defendant Barr's Motion to Compel Answers to Interrogatories and the Production of Documents from Direct Purchaser Plaintiffs ("Second Motion to Compel") [115/69]; Plaintiffs' Statement of Points and Authorities in Opposition to Barr's June 28, 2007 Motion to Compel Discovery ("Opposition to Second Motion") [118/70]; and Barr's reply to the Opposition to Second Motion ("Reply to Second Motion") [123/74]. The Court held a hearing on both motions on July 31, 2007.*fn1 Barr moves to compel the Direct Purchaser Plaintiffs (comprised of the Meijer Plaintiffs and the Walgreen Plaintiffs, and hereinafter jointly referred to as "Plaintiffs" ) to "produce documents and information responsive to its discovery requests, including: (1) documents and information regarding Combined Hormonal Contraceptives ("CHCs") other than Ovcon 35 and its generic equivalents, and (2) documents and data regarding Ovcon 35 and its generic equivalents," including "sales and pricing data" for these drugs/categories of drugs. (Second Motion at 1, First Motion at 2.)*fn2

Background

Discovery pursuant to Fed. R. Civ. P. 26(a)(1) commenced on March 15, 2006, in the Meijer case, Civil Action No. 05-2195 (CKK) (D.D.C. 2005). (First Motion to Compel at 3.) On May 23, 2006, Barr served the Meijer Plaintiffs with its First Request for Production of Documents and First Set of Interrogatories, and Plaintiff responded on June 26, 2006. (Id.) Barr indicates that the Meijer Plaintiffs, in their Answers and Objections, ¶9, generally objected:

to the instructions, definitions and Document[ ] Requests to the extent they request information concerning the resale of pharmaceutical products below the manufacturer level as not being relevant, nor reasonably calculated to lead to the discovery of admissible evidence. Because Plaintiffs have alleged an overcharge theory of damages and are not seeking any damages relating to lost profits, any sales, profit, loss, or other "downstream" information is not relevant to this case.

(Id.)

Barr and the Meijer Plaintiffs met and conferred on August 21, 2006, regarding the disputed discovery, but they were unable to reach a compromise, (id.at 4), and accordingly, Barr filed its First Motion to Compel on September 13, 2006, requesting, inter alia, downstream sales data for Ovcon 35 ("Ovcon").

Discovery in the Walgreen case, Civil Action No. 06-494 (CKK) (D.D.C. 2006), commenced on April 20, 2006, with exchange of initial disclosures in accord with Fed. R. Civ. P. 26(a)(1). (Id.) On May 23, 2006, Barr served the Walgreen Plaintiffs with its First Requests for Production of Documents and First Set of Interrogatories, to which the Plaintiffs responded and raised specific objections on June 23, 2006. (Id.) On August 25, 2006, Barr met with the Walgreen Plaintiffs to confer about contested discovery but no compromise was reached, and thus, the First Motion to Compel was also directed at the Walgreen Plaintiffs.

On June 28, 2007, Barr filed its Second Motion to Compel, directed at both groups of Direct Purchaser Plaintiffs, alleging that "Plaintiffs refuse to produce any documents regarding CHCs other than Ovcon 35 and its generic equivalents . . . [even though] data regarding CHCs other than Ovcon 35 are directly relevant to this case." (Second Motion to Compel at 2.) Barr asserts that information about Ovcon 35 and other CHCs is relevant to its affirmative defenses relating to Defendants' alleged lack of market power, and further, such information will "permit Barr to assess the impact of Plaintiffs' hypothetical generic version of Ovcon 35." (Id.) Barr further requests information about Plaintiffs' purchases of Ovcon 35 and its generic equivalents, including the contracts and agreements under which such purchases were made. (Id. at 3.)

Legal Standard

Fed. R. Civ. P. 26(b)(1) authorizes discovery "regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any . . . documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter." Fed. R. Civ. P. 26(b)(1). "Relevance for discovery purposes is broadly construed." Doe v. District of Columbia, 231 F.R.D. 27, 30 (D.D.C. 2005). "A showing of relevance can be viewed as a showing of need; for the purpose of prosecuting or defending a specific pending civil action, one is presumed to have no need of a matter not 'relevant to the subject matter involved in the pending action.'" Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341 (D.C. Cir. 1984) (citing Fed. R. Civ. P. 26(b)(1)).Once a relevancy objection has been raised, the party seeking discovery must demonstrate that the information sought to be compelled is discoverable. See Alexander v. Federal Bureau of Investigation, 194 F.R.D. 316, 325 (D.D.C. 2000).

Pursuant to Fed. R. Civ. P. 26(b)(2)(iii), the court may limit discovery on its own initiative, if it determines that the "burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issue at stake in the litigation, and the importance of the proposed discovery in resolving those issues." See Hammerman v. Peacock, 108 F.R.D. 66, 67 (D.D.C. 1985) (Rule 26(b)(1) was amended to give the court the power, sua sponte, to limit discovery.) See also United States v. Krizek, 192 F.3d 1024, 1029 (D.C. Cir. 1999) (A trial court has considerable discretion over discovery matters); Food Lion, Inc. v. United Food and Commercial Workers Int'l. Union, 103 F.3d 1007, 1012 (D.C. Cir. 1997) ("[A] district court's decision to permit or deny discovery is reviewable only for an abuse of discretion.") (citation omitted).

In drafting discovery requests, the party who seeks discovery "bears the burden of fashioning such requests appropriately." Washington v. Thurgood Marshall Academy, 232 F.R.D. 6 (D.D.C. 2005) (quoting Peterson v. Hantman, 227 F.R.D. 13, 17 (D.D.C. 2005.) In turn, the party objecting to discovery requests must justify its objections by explaining them in detail as opposed to relying on general assertions. See United States ex rel. Pogue v. Diabetes Treatment Centers of America, 235 F.R.D. 521, 523-24 (D.D.C. 2006) (citing Alexander v. FBI, 192 F.R.D. 50, 53 (D.D.C. ...


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