Eike et al v. Allergan, Inc. et al

Filing 118

ORDER re 116 Discovery Dispute Conference. See Order for details. Signed by Magistrate Judge Donald G. Wilkerson on 8/21/13. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLENE EIKE, et al.,
Plaintiffs,
v.
ALLERGAN, INC., et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 3:12-cv-1141-DRH-DGW

ORDER
WILKERSON, Magistrate Judge:
On August 20, 2013, this Court held a hearing on a discovery dispute involving
Defendants’ responses to Plaintiffs’ Requests to Produce and Interrogatories.

Prior to the

hearing, Plaintiffs’ counsel provided the Court with a list of disputes:
1. Defendants’ objections to producing internal documents and their intention to produce
only documents exchanged with the FDA. This issue applies to Requests 6, 8-10, 15-19,
27-29.
2. Objections to requests for documents and interrogatories related to scientific studies.
Requests 30-38; Interrogatories 16-18, 20-23. (Note: Interrogatories 20-23 pertain only to
Allergan; this issue also relates to Interrogatory 20 directed to Alcon and Interrogatory 20
directed to Merck.)
3. Objections to producing documents other than those that mention the drugs plaintiffs took,
rather than all subject medications alleged in the First Amended Complaint. Requests 6,
8-10, 15-29, 55-62.
4. Objections to requests related to pricing. Requests 13, 14.
5. Objections to requests for documents related to communications with other defendants
regarding drop size. Requests 39-40.

6. Objections to requests for documents related to complaints from consumers outside
Missouri or Illinois or related to investigations of these or similar complaints from any
states. Requests 41-48.
7. In addition, Defense counsel has asked me to mention that they plan to raise their request to
take depositions of Plaintiffs’ eye doctors, to which Plaintiffs object on the ground that the
doctors’ testimony is irrelevant to class certification.

Plaintiffs also provided the Allergan Defendant’s, Merck’s, and Alcon’s discovery responses as
exemplars of the responses of all Defendants. During the hearing, it became clear that a
step-by-step approach to discovery would be beneficial and economical and would reduce
conflicts between the parties. To that end, the following is hereby ORDERED:
1. Within seven (7) days of entry of the proposed Protective Order submitted by
the parties, Defendants SHALL begin to serve upon Plaintiffs the New Drug
Application (NDA) files that were submitted to the U.S. Food and Drug
Administration (FDA) with respect to each drug purchased by the named Plaintiffs.
Plaintiffs may review these files and then determine what other discovery they
require.
2. By August 30, 2013, the attorneys for the parties1 shall meet and confer in
order to inform Plaintiffs of the types and categories of information that are
available, and their location and format, that would be responsive to their discovery
requests.

Defendants shall provide Plaintiff with information on the

availability/location/format of files, studies, memos, notes, documents, and any
other such recorded information related to the eye dropper sizes of the medications
purchased by Plaintiffs (there are approximately 13 such medications) during the
1

Plaintiffs’ attorneys may confer with the attorneys for each Defendant individually.

relevant time period.

Such information shall also include “generic”

files/documents on eye dropper size that are not specifically tied to a particular
medication, in addition to sales/manufacture/distribution information.
If the attorneys are unaware of the nature, depth, breadth, or location of
information responsive to Plaintiffs’ discovery requests they SHALL make
available a representative who has such knowledge for a deposition that will not
exceed 1 hour and that will be conducted expeditiously.
If there are any disputes regarding the above strategy, the Parties may
contact the Court for a telephonic (or in person) conference/hearing.
3. At this stage of the litigation, Plaintiffs are not entitled to “pricing” discovery as
outlined at the hearing because such information is irrelevant.
4.

At this stage of the litigation, Plaintiffs are also not entitled to receive

information on complaints made, regarding the eye dropper size, in states other
than Illinois and Missouri. Such information is irrelevant to class certification.

IT IS SO ORDERED.
DATED: August 21, 2013

DONALD G. WILKERSON
United States Magistrate Judge