Peetz v. Genentech, Inc. et al

Filing 112

MEMORANDUM AND ORDER granting in part and denying in part 101 Defendant's Motion to Quash And/Or Motion for a Protective Order. Genentech shall produce representatives in accordance with the contested Rule 30(b)(6) Notices of Depositions. However, each of the three contested Rule 30(b)(6) topics at issue in Genentech's motion is limited in scope to the use of Rituxan to treat TTP. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JESSE PEETZ,
Plaintiff,

8:10CV297

vs.
MEMORANDUM AND ORDER
GENENTECH, INC., a California
corporation; BIOGEN IDEC, INC., a
Massachusetts corporation; and DOES 125, residents of California;
Defendants.
This matter is before the court on the Motion to Quash and/or Motion for
Protective Order filed by Defendant Genentech, Inc. (“Genentech”), (Filing No. 101).
For the reasons discussed below, the motion will be granted in part and denied in part.1

BACKGROUND

Plaintiff filed this products liability suit against the named defendants, alleging the
prolonged use of the pharmaceutical drug Rituxan to treat his thrombotic
thrombocytopenia purpura (“TTP”) suppressed his immune system and as a result, he
contracted a viral infection which rendered him a “ventilator-dependent flaccid
quadriplegic.” (Filing No. 1, ¶12, at CM/ECF p. 4). The treatment of TTP with Rituxan
was an off-label use of drug. Plaintiff asserts causes of action based on negligence, a
manufacturing defect, failure to warn, and breach of warranty. (Filing No. 1). Discovery
has commenced and the plaintiff has noticed several depositions under Fed. R. Civ. P.
30(b)(6) seeking information about various aspects of Genentech’s business. (See Filing
Nos. 87-97).

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The parties are hereby advised the court reviewed Mutual Pharmaceutical Co., Inc. v.
Bartlett, 133 S.Ct. 2466 (June 24, 2013), which was entered after this motion was fully
submitted, and concluded additional briefing for the issues presented herein was unnecessary.

Genentech seeks to quash three of the notices. Specifically the contested notices
request Genentech to produce the individuals most knowledgeable:

In the subject matter of all methods of marketing of Rituxan, (Filing No.
93);
In the subject matter of Defendants’ use of medical science advisors for
Rituxan, (Filing No. 94); and
In the subject matter of Defendants’ compensation to physicians for
writing, speaking, preparing posters or otherwise recommending the use of
Rituxan, (Filing No. 95).
Genentech has objected to the notices of depositions arguing the plaintiff seeks
information not relevant to this case, and the requests are overly broad, unduly
burdensome, and duplicative of other Rule 30(b)(6) depositions noticed in this case.

ANALYSIS
“Generally, parties may obtain discovery regarding any unprivileged matter so
long as it is relevant to the subject matter of the pending action.” McGowan v. General
Dynamics, Corp., 794 F.2d 361, 363 (8th Cir. 1986). Relevancy, for the purposes of
discovery, encompasses “any matter that bears on, or that reasonably could lead to other
matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund,
Inc. v. Sanders, 437 U.S. 340, 351 (1978). However, the party seeking discovery must
make a threshold showing that the requested information or documents are relevant to the
plaintiff’s actual claims or defenses. In re Cooper Tire & Rubber Co., 568 F.3d 1180,
1193 (10th Cir. 2009); Moses v. Halsted, 236 F.R.D. 667, 671 (D. Kan. 2006). Once the
requesting party meets the threshold relevance burden, “[a]ll discovery requests are a
burden on the party who must respond thereto.
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Unless the task of producing or

answering is unusual, undue or extraordinary, the general rule requires the entity
answering or producing to bear that burden.” Continental Ill. Nat’l Bank & Trust Co. Of
Chicago v. Caton, 136 F.R.D. 682, 684-85 (D. Kan. 1991). In addition, “Rule 26 vests
the trial judge with broad discretion to tailor discovery narrowly and to dictate the
sequence of discovery.” Crawford-El v. Britton, 523 U.S. 574, 599 (1998).

Undue Burden
“The fact that production of documents would be burdensome and expensive and
would hamper a party’s business operation is not a reason for refusing to order
production of relevant documents.” Wagner v. Dryvit Systems, Inc., 208 F.R.D. 606, 610
(D. Neb. 2001) (internal citations omitted). The standard is whether the burden or
expense is “undue” and whether the “hardship is unreasonable in the light of the benefits
to be secured from the discovery.”

Id. (quoting Wright, Miller & Marcus, Federal

Practice and Procedure § 2214, p. 435 (1994)). A party claiming requests are unduly
burdensome cannot rely on mere conclusory allegations, but must provide some evidence
regarding the time or expense required.

See Horizon Holdings, L.L.C. v. Genmar

Holdings, Inc., 209 F.R.D. 208, 213 (D. Kan. 2002).

The defendant has not provided any evidence regarding time or expense necessary
for the preparation or presentation of a 30(b)(6) deponent able to testify over the disputed
topics. Accordingly, Genentech’s objection based on undue burden is overruled.

Relevance and Overly broad
There is no dispute that Peetz’s physician did not rely upon direct representations
made to her by Genentech when she prescribed Rituxan to treat Peetz. However, Plaintiff
alleges that all of Defendants’ marketing efforts – whether the marketing reached Peetz’

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physician or not – may be relevant because those efforts speak to the field of knowledge
regarding Rituxan which may have ultimately influenced the general medical community
and led to the use of Rituxan to treat Peetz’ TTP.

Peetz’ position is not without some support, particularly as to his claims based on
negligence. See, e.g., Smith v. Pfizer, Inc., 714 F. Supp. 2d 845, 854-55 (M.D. Tenn.
2010) (holding the coordinated marketing efforts of a pharmaceutical company may bear
on the foreseeability of the off-label use and whether the pharmaceutical company’s
safety testing for off label uses was reasonable). While the court finds some merit to
Peetz’ argument that exploring these areas could reasonably lead to admissible evidence
regarding the use and treatment of TTP with Rituxan, his Rule 30(b)(6) requests seek
information beyond that use. The plaintiff has not shown how Genentech’s general
marketing practices, general use of medical science advisors, or general compensation of
physicians regarding Rituxan – unrelated to its use of treating TTP – are in any way
relevant to his claims. To the extent Plaintiff seeks information on the disputed 30(b)(6)
topics beyond the off-label use of Rituxan to treat TTP, Genentech’s motion for a
protective order is granted.

Duplication

Genentech also argues the disputed deposition notices seek duplicative
information because they have already agreed to provide a 30(b)(6) representative who is
most knowledgeable in the subject matter of publications regarding Rituxan. Having
found exploration of some of the defendants marketing practices may produce admissible
evidence, and further noting that “marketing” and “publications” do not necessarily
involve the same types of materials and information, the court overrules Genentech’s
objections that the requests are duplicative.

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IT IS ORDERED, Defendants’ Motion to Quash And/Or Motion for a Protective
Order, (Filing No. 101), is granted in part and denied in part. Genentech shall produce
representatives in accordance with the contested Rule 30(b)(6) Notices of Depositions.
However, each of the three contested Rule 30(b)(6) topics at issue in Genentech’s motion
is limited in scope to the use of Rituxan to treat TTP.

Dated this 22nd day of July, 2013.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of
Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.

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