KING PHARMACEUTICALS, INC. et al v. INTELLIJECT, INC.

Filing 13

ORDER granting in part and denying in part Nonparty's 1 Motion to Quash Subpoenas (see Order). Signed by Magistrate Judge Tim A. Baker on 10/20/2011. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

KING PHARMACEUTICALS, INC., et al.,
Plaintiffs,
vs.
INTELLIJECT, INC., et al.,
Defendants.

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CASE NO. 1:11-mc-0106-JMS-TAB

ORDER ON NONPARTY'S MOTION TO QUASH SUBPOENAS
This miscellaneous case involves a satellite discovery dispute arising from a patent
infringement action in Delaware. Plaintiffs served two subpoenas on Medivative Technologies,
LLC, a nonparty based in Indianapolis. The parties and Medivative appeared by counsel on
September 22, 2011, for a telephonic status conference to address Medivative's motion to quash
subpoenas. [Docket No. 1.] Based upon the arguments made, the Court grants in part and denies
in part the motion to quash.
The two subpoenas at issue, as originally served, are overbroad and unduly burdensome.
For example, the subpoenas lack date ranges and thus presumably are directed at the entire fiveyear relationship period between Medivative and Intelliject, Inc., the Defendant in the underlying
action. As Medivative is not a party to the underlying litigation, this Court must carefully
consider the breadth of and burdens imposed by the challenged subpoenas. WM Hugh Yield v.
O'Hanlon, 460 F. Supp. 2d 891, 895–96 (S.D. Ind. 2006). Moreover, at least some of the
information sought by Plaintiffs' subpoenas can be obtained from the Defendant in the
underlying patent infringement action.

That being said, Plaintiffs made efforts to narrow the scope of their subpoenas after
Medivative raised concerns. Of course, such efforts would have been more useful prior to
serving the now-challenged subpoenas, and may have avoided this discovery dispute altogether.
Nevertheless, the narrowed subpoenas unquestionably seek relevant documents, and Medivative
must respond to the narrowed subpoenas as set forth below.
Page three of Plaintiffs' opposition to the motion to quash sets forth three topics and four
categories of documents that Plaintiffs are now seeking by way of the contested subpoenas.
[Docket No. 10 at 3.] Using this as a guidepost, the Court finds that the three general topics
described fall within the bounds of discoverable information. Turning to the four specific
categories of documents, the Court specifically finds:
(1) Topic No. 1 (videos concerning the testing of Intelliject's accused product and King's
EpiPen product) is discoverable, and such videos are in the possession of Medivative, not
Intelliject. Accordingly, responsive videos must be produced.
(2) Topic No. 2 (one version of each working prototype) is unquestionably relevant, and
Medivative makes no argument that this topic is overbroad. Accordingly, responsive prototypes
must be produced.
(3) Topic No. 3 (emails from Bryan Bowman to Jeff Schwegman) is not a broad request
for all emails but rather is limited to emails between these project leaders/managers concerning
the design or testing of the accused product and containing one or two key search terms. This
request is narrowly tailored and responsive documents must be produced.
(4) Topic No. 4 (documents from the physical files of Bowman and Schwegman on a
variety of topics, including kickback testing, as well as electronically stored files) is a much

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broader request, and even as narrowed would impose an undue burden on nonparty Medivative.
For example, the request is not limited to emails or ESI but requests that Medivative manually
search physical files. Accordingly, responsive documents need not be produced except as to
emails between Bowman and Schwegman concerning kickback testing.
The Court is mindful that these subpoenas will impose some burdens on Medivative. But
the Court does not find the requests permitted, as narrowed, to be unduly burdensome on this
nonparty. This conclusion is bolstered and in fact rests upon the Plaintiffs' stated willingness to
incur reasonable costs associated with this production.
Accordingly, Medivative's motion to quash [Docket No. 1] is granted in part and denied in
part. Medivative shall produce to Plaintiffs the documents and information noted above within
21 days from the date of this order, with Plaintiffs incurring reasonable costs associated with this
production.
Dated: 10/20/2011
_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

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Copies to:
Benjamin J. Schladweiler
MORRIS NICHOLS ARSHT & TUNNELL LLP
1201 North Market Street
Wilmington, DC 19801
Joshua P. Larsen
BARNES & THORNBURG, LLP
[e-mail]
Paul B. Hunt
BARNES & THORNBURG, LLP
[e-mail]
Brian Scott Jones
BOSE MCKINNEY & EVANS, LLP
[e-mail]
Craig Eldon Pinkus
BOSE MCKINNEY & EVANS, LLP
[e-mail]

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