King et al v. Solvay S.A.
ORDER granting in part and denying in part 1 Motion to Quash, and 8 Motion for Protective Order, by Magistrate Judge Kristen L. Mix on 8/28/14.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kristen L. Mix
Civil Action No. 14-mc-00196-LTB-KLM
JOHN KING, and
TRUVEN HEALTH ANALYTICS,
This matter is before the Court on Truven Health Analytics’ (“Truven”) Motion to
Quash [#1] (the “Motion to Quash”).1
Relators John King and Tammy Drummond
(“Relators”) filed a Response to the Motion to Quash [#5] (the “Response”), and Truven
filed a Motion for Protective Order [#8] (the “Motion for Protective Order,” and collectively
with the Motion to Quash, the “Motions”). The Court has reviewed these filings, the entire
docket, and the applicable law, and is fully advised in the premises. For the reasons set
forth below, the Motions [#1, #8] are GRANTED in part and DENIED in part.
[#1] is an example of the convention the Court uses to identify the docket number assigned
to a specific paper by the Court’s case management and electronic case filing system (CM/ECF).
This convention is used throughout this Order.
The Relators filed a qui tam action against Solvay S.A., a pharmaceutical company,
in the Southern District of Texas.2 Among other claims, Relators allege that Solvay illegally
marketed three drugs, AndroGel, Aceon and Luvox, in violation of the Anti-Kickback
Statute. Response [#5] at 1. According to Relators,
Truven was the publisher of a drug compendium called the Drugdex
Information System. Government healthcare programs, including Medicaid,
rely on Drugdex to support reimbursement of drugs prescribed for otherwise
non-reimbursable off-label use. Relators allege, among multiple theories,
that [Solvay] committed fraud on or with Truven to obtain preferable
reimbursement status for its three drugs.
Truven is not a party to the Texas lawsuit. Truven asserts that it has, nevertheless,
voluntarily provided “extraordinarily extensive discovery in this action – including producing
some 20,000 pages of documents, permitting counsel for the Relators to conduct several
informal interviews with Truven personnel and, critically, producing two highly
knowledgeable deponents whose knowledge of issues the Relators have identified as
relevant . . . .” Motion [#1] at 2. Nevertheless, Relators issued four subpoenas for
depositions of Truven employees Kristy Brunskill, Anne Davis, Kris Minne and Felicia
Gelsey in Denver, Colorado.
Truven contends that these employees lack relevant
information about both the drugs and Drugdex, the compendium published by Truven
referred to in the Fifth Amended Complaint. Truven calls the Relators’ allegations that
Solvay communicated with Truven and/or its employees in an effort to have desired offlabel uses for the three drugs at issue incorporated into Drugdex “highly speculative.” Id.
When the lawsuit was filed, the Defendant was known as Solvay Pharmaceuticals. Inc. The
Southern District of Texas civil action number is H-06-2662, Hon. Gray H. Miller presiding.
at 7. In light of the alleged lack of relevant knowledge possessed by the subpoenaed
employees, as well as the burden on Truven of providing information to date and producing
the employees for depositions, Truven seeks to quash the subpoenas. Id. at 13-16.
For their part, the Relators make several points. First, they complain that “despite
receiving nine weeks’ notice of the subpoenas and being served with three weeks’ notice,
Truven waited to file its Motion to Quash [until] three business days before the scheduled
depositions.” Hence, they assert that the Motion is untimely. Response [#4] at 2, 8-9.
Second, they assert that Truven’s involvement in the alleged illegal conduct is far from
insignificant. By including certain “medically accepted indications” for uses of the three
drugs in Drugdex, Truven “gave [Solvay] access to Medicaid reimbursement which it
otherwise would not have had . . . . Relators have alleged that [Solvay] committed fraud
on or with Truven to obtain government reimbursement of its drugs for off-label uses.” Id.
at 3. Third, they assert that Truven has been less than cooperative in providing discovery
to date despite Judge Miller’s order compelling production of documents and indications
of his displeasure with Truven’s non-compliance. “Contrary to Truven’s representations to
the Court, Truven has a track record of failing to comply, which the Southern District of
Texas knows all too well.” They assert that they have made efforts to streamline the
depositions sought here by asking Truven to indicate whether Ms. Brunskill or Ms. Davis
worked on the three drug entries with the most frequency and by requesting convenient
deposition dates. Relators say that Truven refused to respond and instead indicated that
it would move to quash the subpoenas. Id. at 5-6, 7. Fourth, they assert that the two
previous depositions of Truven employees were far from comprehensive, and resulted in
the need for additional discovery. One of the deponents, Ms. LaClaire, “has absolutely no
knowledge, and has never worked on, [Drugdex] entries pertaining to the three drugs at
issue in this case.” The other deponent, Ms. Mullins, “is a librarian. She too did not work
specifically on the entries pertaining to the drugs at issue.” Id. at 10. Regarding the need
for additional discovery, Relators state that during the depositions, they first learned of
Truven documents relating to off-label uses that should have been produced in response
to a prior subpoena, and that Truven employs a statistician, Ms. Gelsey, “whose sole
responsibility is to review studies used in support of off-label entries.” Id. at 11. Finally,
Relators assert that Truven prepared and produced a spreadsheet which states that Ms.
Brunskill worked on Drugdex entries for the drug Luvox in 2008 and for the drug Aceon in
2007, Ms. Minne worked on the Luvox entries in 2005, 2006 and 2008, on the Aceon
entries in 2004, 2006-2007 and on the AndroGel entry in 2007, and Ms. Davis worked on
the AndroGel entries in 2009 and 2011 and on the Aceon entries in 2013. Id. at 14; Exh.
14. Hence, their testimony is relevant to the claims.
Fed. R. Civ. P. 45 governs depositions of non-parties by subpoena. The scope of
permissible discovery under Rule 45 is set forth in Fed. R. Civ. P. 26(b)(1), which provides,
in part, that “[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense . . . .” Further, “for good cause, the court may order
discovery of any matter relevant to the subject matter involved in the action.” Id.; see also
Fed. R. Civ. P. 45(d)(1), Advisory Committee Note (“The changes make it clear that the
scope of discovery through a subpoena is the same as that applicable to Rule 34 and other
Rule 45(d)(3)(A)(iv) allows a recipient of a subpoena to file a motion to quash if it
subjects him to an undue burden. Spacecon Spec. Contractors, LLC v. Bensinger, No. 09cv-2080-REB-KLM, 2010 WL 3927783, at *2 (D. Colo. Oct. 1, 2010).3 The objecting party
has the burden of showing that the discovery requested is objectionable. Id. (citing Klesch
& Co. v. Liberty Media Corp., 217 F.R.D. 517, 524 (D. Colo. 2003)). In determining
whether a subpoena imposes an undue burden, the court weighs the burden to the
subpoenaed party against the value of the information to the requesting party. “Generally,
this requires consideration of relevance, the need of the party for the [information], the
breadth of the [information] request, the time period covered by it, . . . [and] the burden
imposed.” DISH Network, LLC v. WNET, No. 13-cv-00832-PAB-KLM, 2014 WL 1628132,
at *3 (D. Colo. April 24, 2014). “The fact that discovery is sought from a non-party is one
factor the Court may weigh in determining whether [the requesting party] is entitled to
enforcement of the subpoena.” Spacecon, 2010 WL 3927783, at *3.
Regarding whether the testimony of the four Truven employees is relevant, the Court
determines that Ms. Brunskill’s, Ms. Minne’s and Ms. Gelsey’s testimony is relevant.
Despite their affidavits uniformly asserting that they “have no knowledge of any
communications between Truven and Solvay or any of Solvay’s affiliates,” Ms. Brunskill
acknowledges that she has “on occasion edited content [in Drugdex] related to off-label
uses of drugs,” Ms. Minne acknowledges that she has had “general supervisory
responsibility for Drugdex” since 2008, and Ms. Gelsey acknowledges that she assists
clinicians “in assessing whether studies in articles reviewed by [them] for possible inclusion
This Court has jurisdiction over the Motions under Fed. R. Civ. P. 45(d)(3)(A), which
mandates that an Order quashing a subpoena must issue from “the court for the district where
compliance is required.” The parties do not dispute that the subpoenas at issue required
compliance in the District of Colorado. See [#1-7].
in Drugdex meet certain threshold methodological criteria.” Motion [#1] at Attachments 3,
4, 5. Moreover, the spreadsheet provided by Truven demonstrates that Ms. Brunskill and
Ms. Minne worked on Drugdex entries for the drugs at issue in the relevant timeframe.
Response [#5] at Exh. 14. This evidence is sufficient to demonstrate that Ms. Brunskill, Ms.
Minne and Ms. Gelsey may have information that could lead to the discovery of admissible
evidence. Williams v. Bd. of Cnty. Comm'rs, 192 F.R.D. 698, 702 (D. Kan. 2000) (stating
that a request for discovery should be considered relevant if there is any possibility the
information sought may be relevant to a claim or defense). Truven has not sustained its
burden of showing that the information sought from these three employees is not relevant.
Simpson v. Univ. of Colo., 220 F.R.D. 354, 359 (D. Colo. 2004) (“When the discovery
sought appears relevant, the party resisting the discovery has the burden to establish the
lack of relevancy by demonstrating that the requested discovery (1) does not come within
the scope of relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal
relevance that the potential harm occasioned by discovery would outweigh the ordinary
presumption in favor of broad disclosure.” (citations omitted)).
Ms. Davis, however, is a different story. Relators amply demonstrate that the lawsuit
is about off-label marketing of three of Solvay’s drugs.
But Ms. Davis’s affidavit
unequivocally states that although she is responsible for “writing content in Drugdex and
other databases[,] [her] job responsibilities have never included work related to off-label
uses of drugs.” Motion [#1] at Attachment 6. Despite the spreadsheet’s indication that Ms.
Davis worked on the AndroGel entries in 2009 and 2011 and on the Aceon entries in 2013,
there is no evidence to suggest that her work involved off-label uses of those drugs.
Relators make no argument about the relevance of Ms. Davis’ testimony specifically,
instead acknowledging that they made pre-subpoena attempts to determine whether it is
necessary to take her deposition at all. Response [#5] at 5-6. Under these circumstances,
the Court finds that the testimony of Ms. Davis is not relevant, and the Motions [#1, #8] are
granted in part as to her deposition.
As to the remaining three depositions, having found that the information sought is
relevant, the Court balances the burden of providing the information on Truven against the
value of the information sought to the Relators. DISH Network, 2014 WL 1628132, at *3.
Regarding the burden on Truven, the Court notes that Relators seek a “half-day” deposition
of each individual. Response [#5] at 15. In addition, the Court notes that Truven’s
argument about burden relates only to the burden it has already shouldered in providing
discovery, not the burden of going forward with the employees’ depositions. See Motion
[#1] at 7 (“Truven personnel have devoted more than 100 hours to searching for responsive
records”); Aff. of Shannon Winston-Goewey [#1-2] at 2 (“This [previously produced
discovery] has included the production of over 20,000 pages of material including: 16 years
of annual monographs for each of the three drugs at issue, several thousand pages of
material from files maintained by Truven for each of these three drugs, unpublished draft
monographs, and annual financial disclosures dating back to 2008 for each of the editors
who worked on the monographs”); [#1-2] at 2 (“It took a Truven employee working full time
for close to a week to identify [Drugdex monographs for the three drugs], which cannot be
reproduced electronically and had to be printed out so that it could be sent to the vendor
for scanning, a significant burden in and of itself”); [#1-2] at 3 (stating that files containing
more than 300 journal articles used by Truven personnel in evaluating the off-label uses
of the three drugs “had to be retrieved from off-site storage, and locating and reviewing
them required more than three full days of a Truven employee’s time”); [#1-2] at 8 (stating
that production of financial disclosure forms “required a senior Truven editor to spend more
than two full days identifying each employee who had worked on relevant monographs,
after which the financial disclosure files themselves had to be searched, a time consuming
process given that these are paper files which can only be searched manually”); [#1-2] at
4 (“Altogether, Truven employees spent in excess of 100 hours identifying and preparing
documents for production and responding to the Relators’ other requests. None of this time
was reimbursed. In fact, the only expense which was reimbursed was the $4200 it cost
Truven to have the monographs and drug files scanned, which Relators agreed to pay but
which they, in fact, did not pay until almost a year after the expenses were incurred.”).4
Truven’s pleadings are devoid of any argument about the cost, in terms of time, energy or
money, of going forward with the employees’ depositions. There is no argument that
Truven would incur travel expenses, measurable losses in terms of employee productivity,
or even the amount of attorneys’ fees which would be incurred to prepare the employees
for and to defend their depositions. The record lacks any evidence relating to the
anticipated burden on Truven of going forward with the depositions.
Under these circumstances, the Court cannot find that the burden on Truven of
proceeding with the employees’ depositions outweighs the value to Relators of the
information sought. Any assessment of the burden on Truven would be speculative, given
the absence of evidence to that effect in the record. Moreover, Truven cites to no legal
Truven neglects to mention that many, if not all, of these efforts were required by Judge
Miller’s Order compelling Truven to respond to a document subpoena, which was originally served
on Truven on October 18, 2012, by May 7, 2013. See, e.g., Response [#5] at 3; [#5-11].
authority – and the Court has found none – which allows the Court to consider the extent
of the burden already suffered by a non-party in deciding whether to permit additional
discovery. Indeed, if the law permitted that inquiry, the Court would be placed in the
position of having to determine when discovery of a non-party should cease based on its
prior discovery efforts, much of which may have occurred without court supervision and the
circumstances of which may be disputed. To say the least, such an analysis would likely
IT IS HEREBY ORDERED that the Motions [#1, #8] are GRANTED in part and
DENIED in part. They are granted as to the deposition of Anne Davis and denied as to
the depositions of Kristy Brunskill, Kris Minne and Felicia Gelsey. The parties shall
forthwith set a date, time, and location in Denver, Colorado for the depositions of Ms.
Brunskill, Ms. Minne and Ms. Gelsey consistent with D.C.COLO.LCivR 30.1, Fed. R. Civ.
P. 30, and Fed R. Civ. P. 45. Each deposition shall not exceed three hours and thirty
minutes. Each party and non-party Truven shall bear their own attorneys’ fees and costs
for the Motions [#1, #8].
Dated: August 28, 2014
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