EX PARTE APPLICATION OF NOVARTIS PHARMA, AG et al

Filing 45

ORDER ON ELI LILLY AND COMPANY'S MOTION FOR RECIPROCAL DISCOVERY - Lilly's motion for reciprocal discovery [Filing No. 40 ] is denied, as is Lilly's motion for an oral argument on its motion [Filing No. 42 ]. See Order for details. Copy to Sharon K. Gagliardi, Katherine A. Helm and Jonathan D. Loeb via US Mail. Signed by Magistrate Judge Tim A. Baker on 5/9/2022. (SWM)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
In Re:
EX PARTE APPLICATION OF NOVARTIS
PHARMA, AG

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No. 1:21-mc-00084-JMS-TAB

ORDER ON ELI LILLY AND COMPANY'S
MOTION FOR RECIPROCAL DISCOVERY
The Court held a status conference in this miscellaneous matter on April 13, 2022.
During that conference, and as memorialized in a subsequent written order, the Court overruled
Eli Lilly and Company's objection to producing discovery contingent upon reciprocal discovery
from Novartis Pharma AG. [Filing No. 38.] After the Court issued its order, Lilly requested—
for the first time—an opportunity to brief the matter. The Court granted Lilly's request. [Filing
No. 39.] Subsequently, Lilly filed a formal motion for reciprocal discovery [Filing No. 40] and
a motion for oral argument on its motion [Filing No. 42].
Given that the Court has already issued a ruling on this issue, the Court treats Lilly's
motion as a motion for reconsideration. While neither side labels Lilly's motion a motion for
reconsideration, that is what it is—a request that the Court reconsider its earlier order overruling
Lilly's request for reciprocal discovery. A motion to reconsider is appropriate where a movant
demonstrates a manifest error of law or fact. See, e.g., Davis v. Carmel Clay Schs., 286 F.R.D.
411, 412 (S.D. Ind. 2012) ("Motions to reconsider serve a limited function, to be used where the
Court has patently misunderstood a party, or has made a decision outside the adversarial issues
presented to the Court by the parties, or has made an error not of reasoning but of apprehension.
The parties may not introduce evidence previously available but unused in the prior proceeding

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or tender new legal theories. A court may grant a motion to reconsider where the movant
demonstrates a manifest error of law or fact." (Internal citations and quotation marks omitted)).
Lilly raises no new arguments in the additional briefing that leads the Court to the conclusion
that it committed a manifest error of law or fact.
As Lilly's motion acknowledges, Lilly sought its own § 1782 discovery in the Eastern
District of Virginia, which was granted, but subsequently vacated based on jurisdictional
concerns. The question of statutory interpretation and jurisdiction is on appeal before the Fourth
Circuit. Lilly argues that the status of the appeal does not affect its entitlement to reciprocal
discovery because Novartis subjected itself to jurisdiction in this district when it filed its § 1782
action. [Filing No. 41, at ECF p. 4.]
The Court set forth its reasoning for overruling Lilly's objection and declining to exercise
its discretion to grant Lilly's request for reciprocal discovery in its original order. [Filing No.
38.] A reciprocal discovery order, issued now, would threaten inconsistent outcomes where the
very same discovery request is on appeal to the Fourth Circuit and was scheduled for oral
argument on May 4, 2022. If the Fourth Circuit reinstates Lilly's Eastern District of Virginia
petition, the parties will then be litigating Novartis's production there. The Court agrees with
Novartis that reciprocal discovery should be denied at least during the pendency of the Fourth
Circuit appeal in order to prevent inefficiency, potential forum shopping, and the risk of
conflicting outcomes. Furthermore, the Fourth Circuit appeal weighs against reciprocal
discovery even if the Eastern District of Virginia decision is affirmed. If that occurs, Novartis
indicates in its response to Lilly's motion that it would likely reconsider whether it needs to
pursue discovery in the United States at all. [Filing No. 43, at ECF p. 5.]

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Lilly argues that Novartis, a foreign corporation "should not be able to take advantage of
the U.S. discovery procedures under § 1782 to obtain discovery from Lilly while at the same
time evading comparable discovery under the same statute and for the same use in the same
proceedings by claiming it is beyond the U.S. courts' reach." [Filing No. 41, at ECF p. 5.]
However, Lilly filed the initial § 1782 application, and it is Lilly that has refused to provide
discovery or claimed it will only provide discovery in a reciprocal arrangement. Novartis filed
the instant application only after the magistrate judge in the Eastern District of Virginia initially
denied Novartis's motion to quash Lilly's subpoena.
Finally, while Lilly contends that there are timing urgencies in foreign proceedings,
Lilly's actions indicate otherwise. Lilly waited ten weeks after the Eastern District of Virginia
quashed its subpoena before suggesting it would seek reciprocal discovery in the Southern
District of Indiana. And as noted above, Lilly did not even ask to brief this issue or file a motion
formally seeking reciprocal discovery until after the Court entered its order overruling Lilly's
objection. No argument raised in Lilly's motion demonstrates that the Court acted under a
manifest error of law or fact. The Court's prior decision stands. Accordingly, Lilly's request to
reconsider the Court's earlier order is overruled. Lilly's motion for reciprocal discovery [Filing
No. 40] is denied, as is Lilly's motion for an oral argument on its motion [Filing No. 42].
Date: 5/9/2022

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

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Distribution:
All ECF-registered counsel of record via email
EX PARTE APPLICATION OF NOVARTIS PHARMA, AG

Sharon K. Gagliardi
DECHERT LLP
Cira Centre
2929 Arch Street
Philadelphia, PA 19104
Katherine A. Helm
DECHERT LLP
Three Bryant Park
1095 Avenue of the Americas
New York, NY 10036
Jonathan D. Loeb
DECHERT LLP
3000 El Camino Real
Five Palo Alto Square, Suite 650
Palo Alto, CA 94306

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