Hill Dermaceuticals, Inc. v. Anthem, Inc.

Filing 106

ORDER denying 94 Plaintiff Hill Dermaceuticals, Inc.'s Motion to Compel Deposition and Motion for Sanctions; granting in part and denying in part 95 Defendant Anthem, Inc.'s Motion for Extension of Time and Motion for Protective Order. Signed by Judge Paul G. Byron on 10/25/2016. (SEN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
HILL DERMACEUTICALS, INC.,
Plaintiff,
v.

Case No: 6:16-cv-833-Orl-40TBS

ANTHEM, INC. and BLUE CROSS
BLUE SHIELD OF FLORIDA, INC.,
Defendant.
ORDER
This cause comes before the Court on the following:
1. Plaintiff Hill Dermaceuticals, Inc.’s Emergency 1 Motion for Sanctions
Against Anthem, Inc. and Motion to Compel Anthem, Inc.’s Rule 30(b)(6)
Witness to Appear for Deposition (Doc. 94), filed October 18, 2016;
2. Defendant Anthem, Inc.’s Motion for Enlargement of Time to Present its
Rule 30(b)(6) Witness for Deposition and Motion for Protective Order
(Doc. 95), filed October 18, 2016; and

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The Court notes that the type of discovery dispute raised by Plaintiff’s motion is not
an emergency. Emergencies generally arise in the context of a threat of imminent
physical harm or immediate, significant, and irreparable economic loss. See VMR
Prods., LLC v. Elec. Cigarettes Outlet, LLC, No. 12-23092, 2013 WL 5567320, at *1
(S.D. Fla. Oct. 3, 2013); Privitera v. Amber Hill Farm, L.L.C., No. 5:12-cv-7-Oc-32TBS,
2012 WL 1900559, at *2 (M.D. Fla. May 24, 2012). Moreover, the designation of a
motion as an “emergency” triggers the Court and its staff to immediately review the
motion, thus diverting court time and resources away from other pending matters.
This is at least the second time Plaintiff has designated a discovery dispute as an
emergency when it is not. (See Doc. 68). The Court therefore takes this opportunity
to caution Plaintiff and its counsel against the cavalier use of the word “emergency” in
the future. See M.D. Fla. R. 3.01(e) (providing that the unwarranted designation of a
motion as an emergency may result in sanctions).

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3. Plaintiff Hill Dermaceuticals, Inc.’s Response to Defendant Anthem, Inc.’s
Motion for Enlargement of Time to Present its Rule 30(b)(6) Witness for
Deposition and Motion for Protective Order (Doc. 100), filed October 20,
2016.
I.

BACKGROUND
Plaintiff, Hill Dermaceuticals, Inc. (“Hill”), is a developer, manufacturer, and

distributor of dermatology products. One of those products—Tolak® (fluorouracil) 4%
Cream (“Tolak”)—serves as the focal point of this lawsuit. Tolak is a patented and FDAapproved medicated cream used to treat actinic keratosis, a precancerous skin condition
which causes rough, scaly lesions to develop on the skin. Tolak is additionally approved
under Medicare Part D, which is a federal-government program designed to subsidize
prescription drug costs and insurance premiums for Medicare recipients. Hill alleges that
Defendant, Anthem, Inc. (“Anthem”), violated Medicare Part D by failing to make Tolak
available to Anthem’s Medicare recipients when the Medicare Part D program requires it
to do so.
The parties are currently engaged in discovery.

To that end, Hill has been

attempting to take the deposition of an Anthem corporate representative under Federal
Rule of Civil Procedure 30(b)(6). The parties initially agreed to conduct the corporate
representative’s deposition on September 27, 2016.

However, Anthem unilaterally

cancelled that deposition due to the Court noticing a status conference for the day before.
Anthem essentially presumed that certain issues raised at the status conference would
render the deposition unnecessary.

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At the status conference, the Court discussed a number of issues with the parties.
Pertinent to this Order, the Court directed the parties to either reach a confidentiality
agreement or to submit their dispute for the presiding Magistrate Judge’s review by
October 3, 2016.

The Court additionally directed Anthem to make its corporate

representative available for deposition by October 21, 2016.

As the October 21st

deadline approached, however, Anthem informed Hill that the deposition would not be
moving forward, as Anthem’s then-designated corporate representative would be
undergoing and recovering from major back surgery. Anthem has since designated a
new corporate representative, although Anthem nevertheless objects to conducting the
deposition until a confidentiality agreement has been entered. Hill then filed the instant
motion to compel and for sanctions and Anthem filed a motion for extension of time and
for a protective order.
II.

DISCUSSION
A.

The Deposition of Anthem’s Corporate Representative

Hill moves to compel the deposition of Anthem’s corporate representative and
Anthem moves for an extension of time to conduct that deposition. Federal Rule of Civil
Procedure 6(b)(1) permits the Court to extend the time for completing an act upon a
showing of good cause. Good cause is a rigorous standard which focuses not on the
good faith of or the potential prejudice to any party, but rather on the parties’ diligence in
complying with the court-imposed deadline. Sosa v. Airprint Sys., Inc., 133 F.3d 1417,
1418 (11th Cir. 1998) (per curiam). Here, the Court finds that good cause exists to extend
the time for conducting the deposition. At the September 26, 2016 status conference, the
Court specifically premised the corporate representative’s deposition on the parties’

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execution of a confidentiality agreement. However, despite their efforts, the parties have
not reached a confidentiality agreement and the matter is now before the presiding
Magistrate Judge. As a result, the deposition of Anthem’s corporate representative
cannot be held. The Court will therefore extend the deadline for conducting the deposition
to fourteen days after the entry of a confidentiality agreement.
B.

The Deposition of Anthem’s Employee, Colleen Haines

Separate and apart from the deposition of Anthem’s corporate representative, Hill
has also been attempting to conduct the deposition of Anthem’s employee, Colleen
Haines, who submitted a declaration in support of Anthem’s opposition to Hill’s pending
motion for preliminary injunction. Hill served a subpoena on Ms. Haines to appear for
deposition on October 25, 2016. However, Ms. Haines is unable to attend the deposition
due to her recovery from major back surgery. Anthem therefore asks the Court to issue
a protective order prohibiting the deposition.
While the circumstances described would certainly meet the standard of good
cause required by Rule 26(c), it appears that the issue of Ms. Haines’ October 25, 2016
deposition is moot. In its response to Anthem’s motion for the protective order, Hill
represents that it served the subpoena on Ms. Haines before learning of Ms. Haines’ thenforthcoming surgery.

Now that Hill knows about Ms. Haines’ circumstances, Hill

acknowledges that her deposition cannot proceed as scheduled. A protective order is
therefore unnecessary.
III.

CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED as follows:

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1. Plaintiff Hill Dermaceuticals, Inc.’s Motion for Sanctions Against Anthem,
Inc. and Motion to Compel Anthem, Inc.’s Rule 30(b)(6) Witness to Appear
for Deposition (Doc. 94) is DENIED.
2. Defendant Anthem, Inc.’s Motion for Enlargement of Time to Present its
Rule 30(b)(6) Witness for Deposition and Motion for Protective Order
(Doc. 95) is GRANTED IN PART and DENIED IN PART. The parties shall
conduct the deposition of Anthem’s corporate representative within
fourteen (14) days from the entry of a confidentiality agreement. Anthem’s
motion for protective order is denied as moot.
DONE AND ORDERED in Orlando, Florida on October 25, 2016.

Copies furnished to:
Counsel of Record

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