Mylan Inc. et al v. Analysis Group, Inc.

Filing 35

ORDER granting in part 30 Analysis Group, Inc.'s Motion for Costs Incurred in Responding to Rule 45 Subpoena. Signed by Magistrate Judge Teresa J. James on 2/4/2019. (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MYLAN INC., et al.,
Plaintiffs,
v.
ANALYSIS GROUP, INC.,
Defendant.

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Case No. 18-mc-209-DDC-TJJ

ORDER
This matter is before the Court on Analysis Group, Inc.’s Motion for Costs Incurred in
Responding to Rule 45 Subpoena (ECF No. 30). Analysis Group, Inc. seeks to recover
compensation for its time and expenses incurred in complying with a subpoena served by Mylan,
Inc. and Mylan Specialty, L.P. (Mylan). Mylan opposes the motion. As set forth below, the
Court will grant the motion in part.
In its opposition to Mylan’s Motion to Compel Compliance with Subpoena Directed to
Analysis Group, Inc. (ECF No. 2), Analysis Group (AGI) asked the Court to order Mylan to pay
the costs of compliance if the Court grants the motion to compel. As the order ruling on the
motion to compel noted, the Court’s policy is to deny cost-shifting in the absence of evidence
sufficient to demonstrate that compliance will impose undue expense on the producing party.1
“[T]he court will not deny a party access to relevant discovery because compliance
inconveniences a nonparty or subjects it to some expense.”2 Based on Mylan’s failure to

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2

ECF No. 820 at 9.

Booth v. Davis, No. 10-4010, 2011 WL 2008284, at *7 (D. Kan. May 23, 2011) (citing EEOC
v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1040 (10th Cir. 1993)).

adequately respond to AGI’s showing of undue burden, the Court found it appropriate for Mylan
to share in the cost of production. However, the Court held in abeyance its ruling on costs until
AGI had complied with the Court’s order and submitted an affidavit setting forth the time and
expense it incurred in responding to the subpoenas. This motion followed.3
Pursuant to Federal Rule of Civil Procedure 45(d)(2)(B), once an order to compel is in
place, the court must “protect a person who is neither a party nor a party’s officer from
significant expense resulting from compliance.”4 The widely-applied standard in determining
cost allocation under the rule calls for consideration of three factors: “(1) whether the non-party
actually has an interest in the outcome of the case, (2) whether the non-party can more readily
bear the costs than the requesting party, and (3) whether the litigation is of public importance.”5
AGI offers little in the way of analysis. It describes the “significant time and resources”
it expended in producing responsive documents as identifying relevant projects, interviewing
individuals to locate documents, and retrieving and reviewing those records. AGI also asserts its
legal resources were strained by the effort, and that it is not involved and has no interest in the
outcome of the litigation between Mylan and Sanofi.6

3

Mylan sought review of the undersigned Magistrate Judge’s order, which District Judge
Crabtree denied. See ECF No. 33.

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Fed. R. Civ. P. 45(d)(2)(B)(ii). AGI also seeks compensation under Rule 45(d)(3)(C)(ii), but
offers no explanation of that subsection’s applicability. As Mylan points out, AGI is not entitled
to recover costs under Rule 45(d)(3)(C)(ii) which applies only when a court orders production of
trade secrets or unretained expert opinions. Insofar as AGI asserted the subpoena called for it to
disclose trade secrets, the Court determined the documents at issue do not constitute trade
secrets. See ECF No. 24 at 9-11.
5

E.g. Behrend v. Comcast Corp., 248 F.R.D. 84, 86 (D. Mass 2004).

6

ECF No. 30 at 3.
2

In addition to addressing each of the factors set forth above, Mylan argues that AGI fails
to meet its burden to show the reasonableness of its request or that the expenses resulted from
compliance with the Court’s order. Specifically, Mylan points out that AGI submitted no time
entries, billing records, timesheets, or other support for or explanation of its claim for costs.
Mylan also intimates the amount AGI claims for producing just over 150 documents may not be
proportional to what other non-parties have done.7
With respect to the first factor, Mylan asserts that AGI has an interest in the outcome of
the underlying antitrust case. By advising Sanofi about the market containing epinephrine autoinjector devices and recommending pricing and marketing strategies for Auvi-Q, Mylan contends
AGI was intimately involved in the decisions underlying this lawsuit. “When the nonparty
producing materials has a potential interest in the underlying litigation, courts have weighed that
interest against shifting the costs of production to the requesting party.”8 The Court agrees AGI
is not the classic disinterested party subject to subpoena from a party to a lawsuit to which it has
no connection. “When a party from whom documents are sought is not a ‘classic disinterested
non-party,’ . . . the court can order that the non-party produce the documents at its own
expense.”9

7

In addition, Mylan urges the Court to reject the motion because AGI did not confer with Mylan
prior to filing it. This is not a situation in which D. Kan. Rule 37.2 applies.

8

Bell Inc. v. GE Lighting, LLC, No. 6:14-CV-00012, 2014 WL 1630754, at *13 (W.D. Va. April
23, 2014).
9

In re Seroquel Prods. Liab. Litig., No. 06-1769, 2007 WL 42876676, at *3 (M.D. Fla. Dec. 6,
2007) (citing In re First Am. Corp., 184 F.R.D. 234, 241-42 (S.D.N.Y. 1998)).
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Second, Mylan contends AGI, with its annual revenue or more than $345 million, is a
sophisticated corporation capable of bearing the costs of producing materials in its possession.
With good reason, Mylan does not attempt to cast itself as an entity in worse financial shape than
AGI. As the entity seeking to shift costs and attorney’s fees, it is up to AGI to “demonstrate that
they cannot more readily bear the expense” than the requesting party.10 AGI has made no
attempt to make such showing, but neither has Mylan argued against it.
Finally, Mylan submits this litigation is of public importance because it is a matter of
serious concern to the pharmaceutical industry, with Plaintiffs bringing claims about contracting
practices between manufacturers and PBMs that are widespread in the pharmaceutical industry.
To find public importance in this case is consistent with the way in which other courts interpret
this factor.11
Considering the relevant factors, the Court concludes that AGI should bear most of the
costs of production. AGI has not provided sufficient information to support the amount of
attorney time it claims─$53,287.50─either with respect to the tasks performed or relative to the
number of documents produced. The required “protection from significant expense does not
mean that the requesting party necessarily must bear the entire cost of compliance. . . [A] nonparty can be required to bear some or all of its expense where the equities of a particular case
demand it.”12

10

In re Application of Michael Wilson & Partners, Ltd., No. 06-cv-02575-MSK-KMT, 2012 WL
1901217, at *5 (D. Colo. May 24, 2012).

11

See Behrend, 248 F.R.D. at 87; cf Bell Inc., 2014 WL 1630754, at *14 (contrasting Behrend
with case involving single plaintiff and single defendant).
12

In re Law Firms of McCourts, No. M19-96, 2001 WL 345233, at *1 (S.D.N.Y. Apr. 9, 2001).
4

Based on the applicable factors and the equities of the case, the Court will require Mylan
to pay $13,500.00 of the costs AGI seeks.
IT IS HEREBY ORDERED that Analysis Group, Inc.’s Motion for Costs Incurred in
Responding to Rule 45 Subpoena (ECF No. 30) is granted in part. Within 30 days of the date of
this order, Mylan shall pay AGI $13,500.00.
IT IS SO ORDERED.
Dated this 4th day of February, 2019 in Kansas City, Kansas.

Teresa J. James
U. S. Magistrate Judge

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