Warner Chilcott Limited et al v. Express Scripts, Inc. et al.

Filing 22

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Allergan's Motion to Compel Express Scripts to Produce Documents and Deposition Testimony (ECF No. 1 ) is DENIED. IT IS FURTHER ORDERED that Petitioners' Request for Expedited Oral Argument on their Motion to Compel or in the Alternative Request for Expedited Status Conference (ECF No. 3 ) is DENIED. Signed by District Judge Ronnie L. White on September 14, 2017. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WARNER CHILCOTT LIMITED, et al. ,
Petitioners,
v.
EXPRESS SCRIPTS, INC. , et al. ,
Respondents.

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No. 4:17MC250 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Allergan' s Motion to Compel Express
Scripts to Produce Documents and Deposition Testimony (ECF No. 1). The motion is fully
briefed and ready for disposition.

I. Background
This case arises from an antitrust lawsuit pending in the District Court for the District of
Massachusetts, In re Asacol Antitrust Litigation, No. 1:15-cv-12730 ("underlying lawsuit").
Petitioners are Warner Chilcott Limited; Warner Chilcott Company, LLC; Warner Chilcott (US),
LLC; Warner Chilcott Sales (US), LLC; Allergan PLC; Allergan, Inc.; Allergan USA, Inc.; and
Allergan Sales, LLC (collectively "Allergan"). Allergan is a defendant in the underlying lawsuit,
and plaintiffs in that case are purchasers of pharmaceutical products manufactured by Allergan to
treat ulcerative colitis ("Asacol products"). Plaintiffs in the underlying lawsuit contend that
Allergan and other defendants engaged in a scheme to maintain a monopoly by making minor
improvements to a product in order to prevent the entry of generic versions. Respondent Express
Scripts is a pharmacy benefit manager ("PBM") and is not a party to the underlying lawsuit,
which does not relate to Express Scripts' PBM services. However, Allergan has issued

subpoenas for the production of documents and deposition testimony from Express Scripts for
use in the underlying lawsuit.
Express Scripts has produced some of the requested documents. However, Allergan
seeks to compel 1) " [d]ocuments showing Express Scripts' s bid solicitations to manufacturers of
ulcerative colitis treatments, the manufacturers ' responses, and Express Scripts' s consideration
of and decisions on the bids (collectively, the "bid documents")"; 2) "Express Scripts' s rebate
agreements with manufacturers of ulcerative colitis treatments (the "rebate agreements")"; and 3)
" [d]eposition testimony regarding (a) Express Scripts' s consideration of manufacturers ' bids and
its decision to include on and exclude from its formularies the ulcerative colitis treatments ... ;
(b) Express Scripts' s rebate agreements with manufacturers for ulcerative colitis treatments .. . ;
and (c) the authentication of the documents Express Scripts has produced . .. ." (Mem. in
Support of Mot. to Compel pp. 6-7, ECF No. 2)
Express Scripts objects to producing the documents, arguing that its confidential pricing
information, contract negotiations, formulary considerations, and rebate agreements are
competitively sensitive, proprietary, and highly confidential. Express Scripts asserts that the
undue risk, burden, and expense to Express Scripts of producing said documents would outweigh
any purported relevance.
II. Discussion
The Court notes that Allergan previously filed a Motion to Compel Third-Party Shire US
Inc. ("Shire") to produce market documents and deposition testimony in the underlying lawsuit.
Shire has been described as the "principal competitor" of the Asacol products in the ulcerative
colitis market. (Express Scripts' Notice of Suppl. Authority Ex. A [hereinafter "Shire Order"],
ECF No. 17-1) In its motion, Allergan sought to compel Shire to produce 1) documents

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regarding its internal marketing strategy; 2) documents showing the couponing and patient
savings programs Shire offered for its products; 3) documents showing Shire' s efforts to
advertise and market the products; and 4) rebate agreements between Shire and payers such as
insurers and PBMs. (Shire Order pp. 1-2) Shire objected to producing the documents "on the
grounds that the information is not needed by Allergan, Allergan is seeking highly confidential
competitive information, and the production would be unduly burdensome." (Shire Order p. 2)
The magistrate judge found, and the district court affirmed, that Allergan was seeking
information that went to the core of its competitor' s marketing strategies and was highly
confidential. (Shire Order pp. 7, 12-13) The court further found that the need by Allergan for
the documents pertaining to marketing plans and strategies was minimal. (Shire Order pp. 1314) Likewise, the court found that Allergan had not established a need for documents pertaining
to its competitors' coupon program. (Shire Order pp. 15-16) With regard to the rebate
agreements, the court specifically found that "Allergan has not established a sufficient need for
these highly confidential business documents from a principal competitor." (Shire Order p. 18)
In the present case, Express Scripts argues that Allergan seeks the same types of
documents sought from Shire, including confidential rebate agreements and related documents.
Express Scripts contends that the court' s denial of Allergan' s motion to compel in the Shire
Order on the basis that Allergan failed to show a need for the documents is dispositive in this
case. The Court agrees.
Allergan seeks documents and deposition testimony pertaining to rebate agreements and
bid documents. As stated in the Shire Order, the documents concerning rebate agreements are
highly confidential and contain competitive information. The Court agrees with the Shire
Order' s holding that Allergan has failed to establish a sufficient need for the rebate agreements.

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The scope of discovery for actions filed in federal court is set forth in Federal Rule of
Civil Procedure 26. That rule provides:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties ' relative access to relevant information, the parties '
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(l). However, a court may forbid disclosure or discovery in order to protect
a person "from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R.
Civ. P. 26(c)(l)(A).
Under Rule 45 of the Federal Rules of Civil Procedure, a court must quash or modify a
subpoena that "subjects a person to undue burden." Fed. R. Civ. P. 45(d)(3)(A)(iv).
Furthermore, a court may quash or quash or modify a subpoena if the subpoena requires
"disclosing a trade secret or other confidential research, development, or commercial
information." Fed. R. Civ. P. 45(d)(3)(B)(i). "' [C]oncem for the unwanted burden thrust upon
non-parties is a factor entitled to special weight in evaluating the balance of competing needs. "'

Miscellaneous Docket Matter No. Iv. Miscellaneous Docket Matter No. 2, 197 F.3d 922, 927
(8th Cir. 1999) (quoting Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998)).
Where, as here, discovery is sought from a non-party, courts have wide latitude in deciding
motions regarding non-party subpoenas, and courts are directed to "give special consideration in
assessing whether the subpoena subjects a non-party to annoyance or an undue burden or
expense." Enter. Holdings, Inc. v. McKinnon , No. 4:14MC00516 AGF, 2014 WL 5421224, at
*1 (E.D. Mo. Oct. 23 , 2014) (citation omitted).

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In the instant case, Allergan seeks highly confidential trade secrets from Express Scripts
in the form of rebate agreements and bid proposals. While Allergan acknowledges the Shire
Order' s denial of Allergan' s motion to compel documents pertaining to rebate agreements,
Allergan argues that the order did not address documents showing bid solicitations to
manufacturers of ulcerative colitis treatment. The Court finds that both of these categories of
documents are related in that the documents regarding Express Scripts' bid solicitations to and
negotiations with drug manufacturers underlie the rebate agreements. While Allergan argues
that it has a substantial need for the documents, the Court finds that any need does not outweigh
the burden and hardship of producing highly confidential and competitive trade secrets belonging
to Express Scripts. (Shire Order p. 18) Therefore, the Court will deny Allergan' s motion to
compel.
Accordingly,
IT IS HEREBY ORDERED that Allergan' s Motion to Compel Express Scripts to
Produce Documents and Deposition Testimony (ECF No. 1) is DENIED.
IT IS FURTHER ORDERED that Petitioners' Request for Expedited Oral Argument
on their Motion to Compel or in the Alternative Request for Expedited Status Conference (ECF
No. 3) is DENIED.
Dated this 14th day of September, 2017.

UNITED STATES DISTRICT JUDGE

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