Suppressed v. Suppressed

Filing 286

MEMORANDUM Opinion and Order Signed by the Honorable Arlander Keys on 3/12/2014. Mailed notice(tlp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA
ex rel.
BERNARD LISITZA, et al.

) No. 06 C 6131
)
)
)
Plaintiffs,
) Judge John Tharp, Jr.
)
v.
) Magistrate Judge Arlander Keys
)
PAR PHARMACEUTICAL COMPANIES, )
INC., et al.
)
)
Defendants.
)
MEMORANDUM OPINION AND ORDER
The United States of America through Relator Bernard
Lisitza (“Relator”) sued Par Pharmaceutical Companies Inc.
(“Par”) for violation of the federal False Claims Act, 31 U.S.C.
§§3729-32, and analogous state statutes.

Currently pending

before the Court is Par’s motion to compel the State of
Michigan’s Responses to Interrogatories [#277].

For the reasons

set forth below, the motion to compel is granted, in part, and
denied, in part.
Standard of Review
The district court exercises significant discretion in
ruling on a motion to compel.

The Court may grant or deny the

motion in whole or in part, fashioning a ruling appropriate for
the circumstances of the case.

Fed. R. Civ. P. 37(a)(4)(B),
1

(c).

Under Rule 26(b), a party may discover “any nonprivileged

matter that is relevant to any party’s claim or defense—including
the existence, description, nature, custody, condition, and
location of any documents.”

It further specifies that

“[r]elevant information need not be admissible at the trial if
the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.”

Fed. R. Civ. P. 26(b)(1).

“A party objecting to the production of relevant information on
the ground that it is unduly burdensome has the burden to prove
the extent of that burden.”

Burkybile v. Mitsubishi Motors

Corp., 2006 WL 2325506 at *6 (N.D.Ill. Aug. 2, 2006).

However,

the Seventh Circuit has warned that “discovery is not to be used
as a fishing expedition.”

E.E.O.C. v. Harvey L. Walner &

Associates, 91 F.3d 963, 971–972 (7th Cir.1996).
Analysis
Defendant requests that the Court order Plaintiff, State of
Michigan, to provide full and complete responses to certain of
Par’s First Interrogatories that it believes to be inadequately
answered.

As the facts of this case are set forth in the

Court’s January 21, 2014 Memorandum Opinion and Order [#275],
the Court will not rehash them here, and will instead commence
with the analysis of each of the requested responses.

2

I. Interrogatory No. 5
Through

this

Interrogatory,

Par

requests

that

Michigan

identify by National Drug Code (“NDC”) and dosage the drugs that
it contends were prescribed and it would have reimbursed but for
Par’s alleged conduct.

Additionally, Par requests the volume of

the

the

reimbursements,

time

period

over

which

the

reimbursements would have taken place, and what amount Michigan
would have paid for the drugs allegedly prescribed.
Michigan

contends

that

Par

is

mischaracterizing

its

allegations and seemingly attempting to have Michigan establish
a defense to a position it has not taken.

Michigan maintains

that it does not assert that any alternative drug should have
been dispensed, but rather that Par promoted a scheme by which
Par’s

versions

of

the

subject

drugs

were

used.

Moreover,

Michigan avers that Par, having industry expertise, is in the
best position to know which drugs were competitors to those at
issue.

Lastly, Michigan argues that it has already provided Par

with access to all of its cost and dosage form information as it
relates to the NDCs provided by Par to Michigan.
The Court finds that Michigan has provided Par with the
pricing information on hundreds of NDCs, and that the switching
Michigan alleges involves form and strength, not an alternative
drug

altogether.

Par’s

demand

3

for

further

production

and

response to this interrogatory is overreaching.

Accordingly,

the Court denies Par’s motion to compel Interrogatory No. 5.

II. Interrogatory No. 10
Through Interrogatory 10, Par requests Michigan to describe
any substantive communication between Michigan and any Provider
regarding any of the drugs at issue, as well as any documents
reflecting said communications.

Michigan contends that it has

provided Par with all the documents responsive to its request,
over 18,000 pages of documents to be exact.

Par now argues that

such a general reference to 18,000 pages of documentation is an
inadequate response, and cites to Derson Group, Ltd. v. Right
Mgmt. Consultants, Inc., 119 F.R.D. 396, 396 (N.D. Ill. 1988),
which held that one cannot avoid answering interrogatories
“simply by general reference to 33,000 documents previously
produced.”
Indeed, Rule 33(d) specifies that the responding party is
to answer by “specifying the records that must be reviewed, in
sufficient detail to enable the interrogating party to locate
and identify them as readily as the responding party could…”
Fed.R.Civ.P. 33(d).

Michigan has given Par no indication as to

where to find the requested information among the over 18,000
documents it has already produced, nor has it acknowledged or
described any communication with a Provider regarding any of the
4

drugs at issue.

The Court finds Par’s request of a verified

interrogatory specifically acknowledging that only one
communication exists or otherwise pointing out the other
communications, reasonable.

Accordingly, Par’s motion to compel

Interrogatory No. 10 is granted.

III. Interrogatory No. 12
Through this interrogatory, Par requests Michigan to
“[i]dentify all state and federal laws and regulations, or any
other legal authority, that [Michigan] contend[s] require
Providers to dispense the least expensive version of any drug’s
various dosage forms.”

Michigan responded by stating that the

legal basis for its complaint is set forth in the Complaint, and
that Par’s question aims to distort and reduce its allegations
to a simplistic, inaccurate statement.
The Court agrees that Par’s interrogatory seemingly aims to
elicit from Michigan its own manufactured spin of Michigan’s
pleadings.

In fact, Par suggests that the “crux of Michigan’s

complaint is that Par allegedly caused providers to dispense
drugs that were more expensive...” and, thus, “Michigan
necessarily is claiming that a provider must dispense the lowest
cost dosage form…”

(Par’s Mot. at p. 5).

An interrogatory is

not to be utilized for conjecture on the pleadings, and it will
not be supported by the Court.

Michigan has sufficiently met
5

the pleading requirements and cited to legal authority in
support of its allegations, ensuring that Par is apprised of the
legal bases upon which Michigan’s allegations rest.
response is unwarranted.

Any further

Accordingly, the Court denies Par’s

motion to compel Interrogatory No. 12.

Conclusion
For the reasons set forth above, Par’s motion to compel
[#277] is granted in part and denied in part.

DATE: March 12, 2014

ENTERED:

________________________
ARLANDER KEYS
United States Magistrate Judge

6