Eshelman v. Auerbach et al
ORDER allowing in part and denying in part 125 Motion to Quash. PPD' s motion to quash Defendant's subpoena to testify pursuant to Rule 30(b)(6) is DENIED for topics (1), (2), (3), and (5), and ALLOWED for topics (4), (6), and (7); PPD 039;s motion to quash Plaintiff's subpoena to testify pursuant to Rule 30(b)(6) is DENIED for topics (1)-(8a), and ALLOWED for topics (8b)-(10); and PPD's motionto quash Defendant's subpoena duces tecum is ALLOWED. Signed by US Magistrate Judge Robert B. Jones, Jr on 11/30/2017. (Briggeman, N.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
FREDRIC N. ESHELMAN,
PUMA BIOTECHNOLOGY, INC.,
This matter is before the court on the motion of non-party movant Pharmaceutical Product
Development, LLC ("PPD") to quash or, in the alternative, to enter a protective order limiting the
scope of information PPD is required to produce in response to: (1) a subpoena to testify at a
deposition in a civil action issued by Defendant Puma Biotechnology, Inc. ("Defendant"); (2) a
subpoena to testify at a deposition in a civil action issued by Plaintiff Fredric N. Eshelman
("Plaintiff'); and (3) a subpoena duces tecum issued by Defendant. [DE-125]. Plaintiff and
Defendant have responded separately in opposition to the motion [DE-135, -136] and the matter
is ripe for disposition. For the following reasons, PPD' s motion to quash or for entry of a protective
order [DE-125] is ALLOWED in part and DENIED in part.
A. Ketek Clinical Trial
On November 1, 2001, Aventis Pharmaceuticals, Inc. ("Aventis") entered into a contract
with PPD, under which PPD was to perform clinical research services in connection with a clinical
study to determine the safety and effectiveness ofKetek, a drug developed to treat respiratory tract
infections. Compl. [DE-1]
22, 23. Plaintiff was the CEO of PPD at the time of the contract's
execution and subsequently during the Ketek clinical trial. Id.
According to Plaintiff, Aventis
retained the responsibility for quality assurance under the contract, and PPD was to report to ·
Aventis any physician serving as a clinical investigator who did not comply with the study plan.
Id. Plaintiff contends that, pursuant to the contract, PPD did not have the authority to end a clinical
investigator's participation in the study or to report a clinical investigator's conduct to the FDA.
On November 5, 2001, Aventis, through PPD, entered into a contract with Dr. Maria Anne
Kirkman-Campbell ("Kirkman-Campbell"), under which Kirkman-Campbell was to participate in
the Ketek clinical trial as a clinical investigator. Id.
24. Under the terms of the contract,
Kirkman-Campbell agreed to conduct the study in strict compliance with the criteria set forth in
the study protocol. Id.
Kirkman-Campbell disregarded her obligations under the contract by
submitting false documentation to PPD and Aventis concerning the Ketek clinical trial. Id. at
According to the complaint, after discovering "red flags" relating to Kirkman-Campbell,
PPD personnel notified Aventis and recommended that Aventis exclude the Kirkman-Campbell
data from the Ketek clinical trial. Id.
Plaintiff contends that once he was "generally apprised"
of what was known at the time about the situation, he instructed PPD' s head of quality assurance
to place a call directly to Aventis' head of quality assurance. Id. Plaintiff also cooperated in
bringing Kirkman-Campbell's misconduct to light. Id. According to Plaintiff, at no time did he
participate in, authorize, or condone Kirkman-Campbell's fraud, nor was he involved in her fraud
in any way. Id.
Ann Marie Cisneros ("Cisneros"), a former PPD Senior Clinical Research Associate,
assisted in monitoring the Ketek clinical trial. Pl.'s Mem. Opp'n. Ex. 3 [DE-135-3] at 6. Cisneros
testified before the United States House of Representatives about her observations and what she
learned monitoring Kirkman-Campbell, as well as her discussions about Kirkman-Campbell with
PPD and Aventis. Id. at 6-7. Plaintiff also testified before Congress regarding PPD's role in the
Ketek clinical trial. Pl.'s Mem. Opp. [DE-135] at 3.
B. Plaintiff's Claims of Defamation
In October 2015, Plaintiff, a stockholder of Defendant, proposed that Defendant increase
the size of its board from five to nine directors and elect Plaintiff and three other nominees to the
board. Compl. [DE-1] 'ii 29; [DE-20-6]. Defendant responded to Plaintiffs solicitation by mailing
a consent revocation to stockholders which directed stockholders to the homepage of Defendant's
investor-relations website for further consent revocation materials. Compl.
Plaintiff alleges that Alan H. Auerbach ("Auerbach"), Defendant's CEO, defamed him in an
investor presentation to stockholders charging Plaintiff with committing scientific fraud in the
Ketek clinical trial. Compl.
'i!'il 1, 33. In particular, Plaintiff alleges the following statements
contained in the investor presentation falsely charge him with scientific fraud in the clinical trial
ofKetek and falsely allege that such fraud resulted in him being replaced as the CEO of PPD:
"Eshelman Continues to Demonstrate a Lack of Integrity"
"Eshelman's misrepresentations are no surprise given his history"
"Eshelman was Chief Executive Officer (CEO) of Pharmaceutical Product Development
(PPD) when it managed a clinical trial during the development of the antibiotic drug
Ketek . . . Fraud was uncovered in this trial by the FDA's Office of Criminal
"As Chief Executive Officer of PPD, Eshelman was forced to testify before Congress
regarding PPD's involvement in this clinical trial fraud in 2008"
"Eshelman was replaced as CEO of PPD in 2009"
"Puma's Board does not believe that someone who was involved in clinical trial fraud
that was uncovered by the FDA should be on the Board of Directors of a public company;
particularly a company that is in the process of seeking FDA approval"
33; Ex. A [DE-1-1] at 14-15.
On January 20, 2016, by letter to Defendant, Plaintiff demanded an apology and retraction
of these statements, asserting that it is known and well-documented in the public record that PPD
discovered and reported the fraud under Plaintiffs leadership. Compl. [DE-1]
that these actions by PPD led to criminal charges being filed against Kirkman-Campbell and that
the United States Attorney subsequently identified PPD as a victim of the fraud committed by
Kirkman-Campbell in the criminal indictment filed July 24, 2008. Id.
On January 27, 2016,
Defendant responded to Plaintiffs letter by refusing to correct and/or retract its original statements
and by threatening to reveal additional information about Plaintiff to the shareholders. Id.
In his complaint, Plaintiff asserts claims of libel per se and libel per quod with respect to
the statements supra issued by Defendant regarding Plaintiffs role in the Ketek clinical trial. On
February 21, 2017, Defendant answered the complaint and asserted counterclaims oflibel per se
and libel per quod against Plaintiff on the basis of statements he made on November 30, 2015, and
January 4, 2016, during the proxy contest. Answer [DE-86]. Defendant also asserted ten defenses,
primarily challenging Plaintiffs claims based on the elements required to prove libel (i.e., truth,
Id. at 20-21.
On June 12, 2017, the court dismissed Defendant's
counterclaims as time-barred. [DE-116] at 9-10, 12-13.
C. Third-Party Subpoenas to PPD
On June 1, 2017, Defendant caused to be issued upon PPD a subpoena to testify at
deposition and a notice to take the deposition pursuant to Fed. R. Civ. P. 30(b)(6). PPD Mot. Ex.
A [DE-125-1]. Defendant designated the following matters for examination:
1. PPD's code of ethics, employee handbook, and all policies, procedures and training .
materials relating to honesty, integrity, or ethics that were in effect during the Ketek Trial.
2. Fraud, irregularities, or investigative inquiries into the Ketek Trial, including:
a. PPD's role in the Ketek Trial;
b. Any communications with Dr. Eshelman regarding the Ketek Trial, including but
not limited to electronic or other correspondence on which he was copied;
c. Any communications with Ann Marie Cisneros regarding the Ketek Trial, Sanofi,
Aventis, or Sanofi-Aventis, or Maria Anne Kirkman-Campbell, including but not
limited to electronic or other correspondence on which she was copied;
d. Dr. Eshelman's actions, or actions taken on his behalf, with respect to any fraud or
misconduct uncovered during the Ketek Trial;
e. PPD's Board of Director meetings and materials relating to the Ketek Trial, and
any Board actions, or action taken on its behalf, with respect to any fraud or
misconduct uncovered during the Ketek Trial;
Financial and/or reputational changes to PPD as a result of any fraud or misconduct
uncovered during the Ketek Trial.
3. Any investigation by the Food and Drug Administration or any state or federal law
enforcement agency of PPD with regard to the Ketek Trial during the period in which Dr.
Eshelman was Chief Executive Officer.
4. All litigation related to the fraud uncovered in the Ketek Trial, including:
a. Number of lawsuits filed, and their location;
b. The underlying claims brought;
c. Settlement offers and amounts.
5. The reasons for Dr. Eshelman's resignation as CEO of PPD, and his duties and powers
before and after resignation as CEO.
6. David L. Grange's appointment as CEO of PPD and reasons for his subsequent retirement
from his position as CEO of PPD ..
7. Raymond Hill's appointment as CEO of PPD and reasons for his subsequent retirement as
PPD Mot. Ex. A [DE-125-1] at 7-8.
On June 21, 2017, Plaintiff caused to be issued upon PPD a subpoena to testify at deposition
and a notice to take the deposition pursuant to Fed. R. Civ. P. 30(b)(6). PPD Mot. Ex. B [DE-1252]. Plaintiff designated the following matters for examination:
1. The responses, electronic records, and documents produced by PPD in response to Dr.
Eshelman's February 2, 2017 subpoena and/or Puma's February 10, 2017 subpoena.
2. PPD's codes of ethics, codes of conduct, training materials, employee handbooks,
compliance policies, compliance procedures, compliance videos, operating procedures,
and internal ethics standards that were operative during the Ketek clinical trial.
3. Contracts and the contractual relationship between PPD and Aventis related to the Ketek
4. Contracts and the contractual relationship between PPD and Dr. Kirkman-Campbell related
to the Ketek clinical trial.
5. PPD's efforts to protect the integrity of the Ketek clinical trial or _to report, investigate,
and/or correct any potential concerns relating to the Ketek clinical trial.
6. PPD's cooperation with any investigations relating to the Ketek clinical trial.
7. Ann Marie Cisneros's departure from PPD.
8. Dr. Eshelman's change of position from CEO to Executive Chairman of the Board and
David Grange's appointment as CEO of PPD.
9. PPD's relationship with Puma, including how and when that relationship began; the goods
or services rendered; the years of that relationship; the approximate revenue accrued on
account of that relationship per year and total to date; the identity of the individuals at Puma
with whom they have communicated, and the approximate frequency, subject matter, and
methods of their communications with Puma; the date, location, and subject matter of any
meetings with Puma in North Carolina.
10. PPD's verbal, written, and electronic communications with Puma about Dr. Eshelman or
the Ketek clinical trial.
PPD Mot. Ex. B [DE-125-2] at 8-9.
Finally, on June 22, 2017, Defendant caused to be issued upon PPD a subpoena duces
tecum for (1) all documents PPD produced in all Ketek civil lawsuits (Request for Production No.
16), (2) all documents produced to PPD in all Ketek civil lawsuits (Request for Production No.
17), and (3) all deposition transcripts, including exhibits, and deposition video recordings, from
the Ketek civil lawsuits (Request for Production No. 18). PPD Mot. Ex. C [DE-125-3] at 9.
II. STANDARD OF REVIEW
Subpoenas issued to nonparties are governed by Rule 45 of the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 34(c) ("As provided in Rule 45, a nonparty may be compelled to
produce documents and tangible things or to permit an inspection."). "In response to such a
subpoena, a non-party may either file a motion to quash or modify the subpoena pursuant to Fed.
R. Civ. P. 45 (d)(3)(A), move for a protective order pursuant to Fed. R. Civ. P. 26(c), or oppose a
motion to compel production of the subpoenaed documents pursuant to Fed. R. Civ. P. 45(d)
(2)(B)." Schaafv. Smithkline Beecham Corp., 233 F.R.D. 451, 453 (E.D.N.C. 2005) (citing United
States v. Star Scientific, Inc., 205 F. Supp. 2d 482, 484 (D. Md. 2002)).
"Rule 45 adopts the standard codified in Rule 26" in determining what is discoverable.
Schaaf, 233 F.R.D. at 453. Rule 26 provides for'a broad scope of discovery:
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). The rules of discovery, including Rule 26, are to be given a broad and
liberal construction. Herbert v. Lando, 441 U.S. 153, 177 (1979); Nemecek v. Bd of Governors,
No. 2:98-CV-62-BO, 2000 WL 33672978, at *4 (E.D.N.C. Sept. 27, 2000). While Rule 26 does
not define what is deemed relevant for purposes of the rule, relevance has been "broadly construed
to encompass 'any possibility that the information sought may be relevant to the claim or defense
of any party."' EEOC v. Sheffield Fin. LLC, No. 1:06-CV-889, 2007 WL 1726560, at *3
(M.D.N.C. June 13, 2007) (quoting Merrill v. Waffle House, Inc., 227 F.R.D. 467, 473 (N.D. Tex.
2005)). The district court has broad discretion in determining relevance for discovery purposes.
Watson v. Lowcountry Red Cross, 974 F.2d 482, 489 (4th Cir. 1992).
The court is also authorized to impose appropriate limitations on discovery. Rule 26
provides that the "court may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(l).
Such orders may, among other measures, "forbid the disclosure or discovery" or "forbid inquiry
into certain matters, or limiting the scope of disclosure or discovery to certain matters." Id
26(c)(l)(A), (c)(l)(D). When considering the propriety of enforcing a subpoena, a trial court
should consider "the relevance of the discovery sought, the requesting party's need, and the
potential hardship to the party subject to the subpoena." Schaaf, 233 F.R.D. at 453 (quoting Heat
& Control, Inc. v. Hester Indus., 785 F.2d 1017, 1024 (Fed. Cir. 1986)). "A party or attorney
responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue
burden or expense on a person subject to the subpoena," and the court "must quash or modify a
subpoena that subjects a person to undue burden." Fed. R. Civ. P. 45(d)(l), (d)(3)(iv). "In the
context of evaluating subpoenas issued to third parties, a court 'will give extra consideration to the
objections of a non-party, non-fact witness in weighing burdensomeness versus relevance."'
Schaaf, 233 F.R.D. at 453 (quoting Indem. Ins. Co. ofN Am. v. Am. Eurocopter LLC, 227 F.R.D.
421, 426 (M.D.N.C. 2005)). The determination of the reasonableness of a subpoena requires the
court to balance the interests served by demanding compliance with the subpoena against the
interests furthered by quashing it, weighing the benefits and burdens, considering whether the
information is necessary and whether it is available from another source. See 9A Wright & Miller,
Fed. Practice & Procedure§ 2463.1 (3d ed.) (collecting cases); see Spring v. Bd. of Trustees of
Cape Fear Cmty. Coll., No. 7:15-CV-84-BO, 2016 WL 4204153, at *1 (E.D.N.C. Aug. 8, 2016)
("Undue burden may be found where a subpoena is directed at information held by a non-party
and the information is available from another source.") (citing In re Subpoena of Daniel Drasin,
No. 13-CV-304, 2014 WL 585814, at *6 (D. Md. Feb. 12, 2014)). "A party moving for a protective
order has the burden of making a particularized showing of why discovery should be denied, and
conclusory or generalized statements in the motion fail to meet this burden." Martin v. Bimbo
Foods Bakeries Distribution, LLC, 313 F.R.D. 1, 6 (E.D.N.C. 2016).
Defendant's Subpoena to Testify Pursuant to Fed. R. Civ. P. 30(b)(6)
PPD moves the court to quash the subpoena ordering the deposition of designated
representative(s) to testify on PPD's behalf regarding the information contained in Exhibit A of
the subpoena. PPD Mot. Ex. A [DE-125-1] at 7-8. The nine topics contained in Defendant's
subpoena may be divided into four broad categories of information: (1) PPD's internal policies
and procedures_ in effect during the Ketek clinical trial; (2) the investigation(s) into the Ketek
clinical trial, including communications by and among key individuals; (3) the subsequent
litigation involving PPD with respect to the Ketek clinical trial; and (4) personnel decisions by
PPD following the Ketek clinical trial. PPD contends that the subpoena to testify is unduly
burdensome, and therefore moves that it be quashed pursuant to Rule 45(d)(3)(A)(iv).
Specifically, PPD argues that (1) the subpoena is overbroad, (2) it would be unduly burdensome
to prepare a witness to testify regarding dozens of closed cases, the records of which are contained
in approximately 265 banker's boxes and stored off-site, inany of which may be subject to
confidentiality agreements related to litigation, (3) the broad categories of information contained
in the subpoena have little relevance to the main dispute in this case, and (4) none of the key
employees involved in the Ketek clinical trial has been employed by PPD for years, making the
designation of a qualified witness virtually impossible. PPD Mem. [DE-126] at 8-9, n.2.
Defendant argues that the topics for testimony are relevant and that such testimony is
necessary in order for Defendant to develop its defense. Def.'s Opp'n. [DE-135] at 5-9. In
particular, Defendant posits that the information garnished at a deposition would be relevant
regarding the extent of Plaintiffs knowledge of or involvement in the Ketek clinical trial fraud
and therefore germane to Defendant's defense that its statements about Plaintiff are truthful. See,
e.g., Martin Marietta Corp. v. Wake Stone Corp., 111 N.C. App. 269, 276, 432 S.E.2d 428, 433
(1993) (holding truth as a defense to a libel claim), ajf'd per curiam, 339 N.C. 602, 453 S.E.2d
The court must conduct a balancing test, weighing the burdensomeness of preparation
against the necessity of the information, to determine what limitatioJ;l on the subpoena is
appropriate, if any. With respect to the burden placed on PPD, a non-party in this lawsuit, the
court considers the following: the applicable time period of the discovery sought, the breadth of
information requested, the dozens of closed cases related to the Ketek clinical trial, the volume of
relevant documents related to the prior cases, the off-site storage of those documents, and the
purported lack of any current PPD employees who had key roles during the Ketek clinical trial.
With respect to the necessity of the information, the court considers that a showing of truth
regarding an alleged defamatory statement is an absolute defense to libel. Because the alleged
defamatory statements pertain to Plaintiffs role at PPD during the Ketek clinical trial, it logically
follows that the information from PPD with regard to Plaintiff and his role in the Ketek clinical
trial would be highly relevant. Additionally, while PPD is not a party to this lawsuit, it would
seem that responsive testimony as it relates to these relevant topics would most likely be in its
possession more readily, if not exclusively, than from other sources. The court also notes that,
while PPD contends that it has previously produced responsive information in discovery,
Defendant states that such compliance with previous document subpoenas was only partial, and it
is altogether unclear to what extent PPD's earlier production overlaps with the present request.
PPD Mem. [DE-126] at 7; Def.'s Opp'n [DE-135] at 4.
PPD fundamentally argues that the subpoena causes undue burden because it is overbroad.
PPD Mem. [DE-126] at 7. "A subpoena imposes an undue burden on a party when a subpoena is
overbroad." In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 612 (E.D. Va.
. 2008). "A subpoena is overbroad if it does not limit the documents requested to subject matter
relevant to the claims or defenses." Id PPD contends that the topics enumerated in the subpoena
to testify are irrelevant to the main dispute in this case. The court largely disagrees. The scope of
testimony requested by Defendant is limited to subjects related to the Ketek clinical trial-internal
policies and procedures during the time of the Ketek clinical trial, and the investigations related to
the Ketek clinical trial. Accordingly; topics (1), (2) and (3) of Defendant's subpoena as set out in
Exhibit A are relevant to the main dispute. However, Defendant also seeks testimony regarding
litigation against PPD following the Ketek clinical trial. After review of the parties' briefing, the
court finds this request too expansive and that it would include matters wholly unrelated to issues
in dispute here. To the extent the request seeks relevant matters, they are likely to be duplicative
of the information in topics (1) - (3). Weighing such request with the need in this case and its
demand on a non-party, the court finds topic (4) to be overbroad and unduly burdensome.
Accordingly, the court sustains PPD's objection to topic (4). Additionally, Defendant requests
testimony with respect to personnel decisions surrounding three specific employees-Plaintiff,
David L. Grange ("Grange"), and Raymond Hill ("Hill"). Plaintiff has alleged that Defendant's
statements against him being replaced as CEO of PPD are false and, accordingly, information
related to the reasons for Plaintiffs resignation, and his duties and powers before and after his
resignation as CEO, are relevant to the claims in this case. However, information related to the
personnel decisions surrounding Grange and Hill do not appear relevant to the claims alleged in
this case. Accordingly, the court finds topic (5) to be relevant, but topics (6) and (7) not relevant.
With respect to the breadth of information requested, PPD may designate more than one
agent or representative to testify as to the various topics. PPD Mot. Ex. A
("Defendant . . . shall take the deposition upon oral examination of Pharmaceutical Product
Development, LLC ("PPD") through one or more of its agents, or other representatives, who shall
be designated to testify on PPD's behalf regarding all information known or reasonably available
to PPD") (emphasis added); Fed. R. Evid. 30(b)(6) ("The named organization must then designate
one or more officers, ... who consent to testify on its behalf; and it may set out the matters on
which each person designated will testify"). Accordingly, the court disagrees with PPD's .
characterization that preparation of "a witness" to testify regarding a wide array of information is
unduly burdensome because it is allowed to designate multiple witnesses to testify to as few or as
many of the provided topics as they choose. PPD Mem. [DE-126] at 9 ("would purport to require
PPD to prepare a witness to testify on broad categories of information") (emphasis added).
The court also rejects PPD's contention that the subpoena is unduly burdensome because
the key employees in the Ketek clinical trial have not been employed by PPD for some years and
thus "finding a corporate witness with personal knowledge of the information sought is essentially
impossible." PPD Mem. [DE-126] at 9 n.2. PPD mistakes the demands of Rule 30(b)(6) and this
objection is overruled. See US. v. Taylor, 166 F.R.D. 356 (M.D.N.C. 1996), aff'd, 166 F.R.D.
367 (M.D.N.C. 1996) (holding that, while "[k]knowledgeable people have died" and "memories
have faded" in the long:-pending case, the company still had a duty to designate and prepare a
witness pursuant to Fed. R. Civ. P. 30(b)(6)). It is established that "[i]f the designated witness
does not have personal knowledge of the deposition topics, the corporation must prepare the
witness to give 'knowledgeable and binding answers for the corporation."' Beach Mart, Inc. v.
L&L Wings, Inc., 302 F.R.D. 396, 406 (E.D.N.C. 2014) (quoting Taylor, 166 F.R.D. at 361). Thus,
a Rule 30(b)(6) witness must be prepared to testify beyond matters in which the witness was
personally involved. Id.
PPD cites the dozens of cases involving PPD with regard to the Ketek clinical trial and the
over 265 banker's boxes of documents related to those cases to support its contention that
preparation for deposition would be unduly burdensome. However, the voluminous amount of
information that has already been sorted and compiled should, in fact, make preparing a witness
or witnesses easier than if none of this information had been sought out previously. In other words,
the relevant documents for review have already been pulled and organized, and therefore the court
does not find that these facts necessarily show undue burden.
In sum, PPD's motion to quash with respect to topics (4), (6) and (7) in Defendant's
subpoena to testify is allowed. Accordingly, Defendant's subpoena to testify shall be amended to
contain only the items listed in topics (1), (2), (3), and (5).
Plaintiff's Subpoena to Testify Pursuant to Fed. R. Civ. P. 30(b)(6)
PPD moves the court to quash the subpoena ordering the deposition of designated
representative(s) to testify on PPD's behalf regarding the information contained in Exhibit A of
the subpoena. PPD Mot. Ex. B [DE-125-2] at 8-9. The general topics for testimony with respect
to topics (1)-(6) are similar in relevant part to the topics enumerated in Defendant's subpoena,
namely (1) PPD's internal policies and procedures in effect during the Ketek clinical trial; and (2)
the investigation(s) into the Ketek clinical trial. The key difference regarding these general topics
in Plaintiffs subpoena is a focus on PPD's "integrity" and "cooperation" with respect to the
investigations into the Ketek clinical trial. Accordingly, PPD's motion to quash with respect to
topics (1)-(6) in Plaintiffs subpoena to testify is denied, for the reasons stated above.
Topics (7) and (8) of Plaintiffs subpoena contemplate certain PPD personnel decisions,
namely regarding Cisneros' departure, Plaintiffs change of position, and Grange's appointment
as CEO of PPD. The court finds that information related to Cisneros' departure from PPD is
relevant to the claims at issue here because Cisneros appears to have been a key figure in the Ketek
clinical trial and ultimately testified before Congress with respect to her role in the trial. Her
testimony, however, has not been provided to the court for the court to determine whether the
request should be denied on grounds that the relevant information is available elsewhere.
Accordingly, PPD's motion to quash with respect to topic (7) is denied. Topic (8) contains two
separate requests related to Plaintiff and Grange. For purposes of clarity, the court will refer to
the first request contained in topic (8) related to Plaintiff as topic (8a) and the second request
contained in topic (8) related to Grange as topic (8b ). The court similarly finds that information
related to Plaintiff's change of position from CEO to Executive Chairman of the Board at PPD is
relevant to the claims at issue here. However, any information related to Grange's appointment as
CEO of PPD is
as discussed above. Accordingly, PPD's motion to quash with respect
to topic (8a) is denied and PPD's motion to quash with respect to topic (8b) is allowed.
Plaintiff additionally requests testimony related to PPD's relationship with Defendant and
any verbal, written, and electronic communications between PPD and Defendant regarding
Plaintiff or the Ketek clinical trial. Plaintiff contends that these requests are relevant with respect
to actual malice, arguing that Defendant's ongoing business relationship with PPD is
circumstantial evidence that Defendant did not actually believe that PPD or Plaintiff had been
involved in the fraud. Pl.'s Opp'n [DE-136] at 4. The court disagrees and finds these requests are
irrelevant to the issues presented in this case, which involve statements made by Defendant with
respect to Plaintiff's role as CEO of PPD during the Ketek clinical trial. The case does not,
however, concern PPD's relationship with Defendant. Therefore, PPD's motion to quash with
respect to topics (9) and (10) in Plaintiff's subpoena to testify is allowed. Accordingly, Plafu.tiff's
subpoena to testify shall be amended to contain only the items listed in topics (1)-(8a).
Defendant's Subpoena Duces Tecum
Defendant seeks all documents PPD produced in all Ketek civil lawsuits (Request No. 16),
all documents produced to PPD in all Ketek civil lawsuits (Request No. 17), and all deposition
transcripts, including exhibits, and deposition video recordings, from the Ketek civil lawsuits
(Request No. 18). PPD Mot. [DE-125-3] at 9. PPD objects to the subpoena on the grounds it is
overly broad and thus unduly burdensome because it would require PPD to review approximately
265 banker's boxes of documents relating to dozens of lawsuits, all of which concluded over eight
years ago, and are stored offsite, some of which may be subject to protective orders entered in the
various litigation. PPD Mem. [DE-126] at 6. PPD anticipates that production of such documents
would require a significant amount of time and money because each document would need to be
reviewed to determine if it is subject to a protective order. Id at 6-7. Additionally, PPD argues
that it is reasonable to conclude that the majority of the documents would have no bearing on the
issues ohhis case and therefore are irrelevant. Id at 8. Defendant, however, contends that the
documents are relevant, as they could yield information regarding Plaintiffs role in the Ketek
clinical trial. Def.'s Opp'n. [DE-135] at 6-7. Additionally, Defendant is agreeable to excluding
from production any documents that relate only to individual plaintiffs' damages. Id at 7.
Defendant also highlights for the court that, while document review is almost always required,
Defendant specifically tailored its requests to documents that have already been produced in the
litigation, and therefore have been previously reviewed. Id at 8. Lastly, Defendant is also
agreeable to accepting the terms of any outstanding protective and confidentiality orders as it
pertains to the production of these documents. Id at 8-9.
"A subpoena imposes an undue
on a party when a subpoena is overbroad." AOL,
Inc., 550 F. Supp. 2d at 612 .."A subpoena is overbroad ifit 'does not limit the documents requested
to subject matter relevant to the claims or defenses." Yates v. Ford Motor Company, No. 5:12CV-752-FL, 2015 WL 12851583, at *5 (E.D.N.C. June 16, 2015) (quoting Innovative Therapies,
Inc. v. Meents, 302 F.R.D. 364, 382 (D. Md. 2014)). Accordingly, courts in the Fourth Circuit
have concluded that a subpoena for an entire file constitutes an overbroad request where that file
likely contains both relevant and irrelevant information. Champion Pro Consulting, Inc. v. Impact
Sports Football, LLC, No. 1:12-CV-27, 2014 WL6686727, at *4 (M.D.N.C. Nov. 26, 2014) (citing
United States v. Morris, 287 F.3d 985, 991 (10th Cir. 2002) (noting that, in context of rule
governing subpoenas in criminal cases, "[ c]ourts have held that requests for an· entire file are
evidence of an impermissible fishing expedition")); see Singletary v. Sterling Transp. Co., Inc.,
289 F.R.D. 237, 241 (E.D. Va. 2012) (quashing a subpoena as imposing an undue burden where a
defendant requested a plaintiff's complete employment file, because that file also contained
personal information not relevant to the case); James Madison Project v. CIA., No. 1:08-CV1323 (GBL), 2009 WL 2777961, at *4 (E.D. Va. Aug. 31, 2009) ("a request for all documents
relating to a subject is usually subject to criticism as overbroad since ... all documents relate to
others in some remote fashion. Such a request unfairly places the onus of non-production on the
recipient of the request and not where it belongs-upon the person who drafted such a sloppy
The court finds that Requests for Production Nos. 16, 17, and 18 are overbroad because
they do not limit the documents to the subject matter relevant to the claims at issue in this case.
Rather, the subpoena requests all documents both produced to PPD and by PPD in all previous
Ketek civil lawsuits. These requests are not tailored to the claims at issue here, namely, Plaintiff's
role as CEO of PPD during the Ketek clinical trial. Instead, the court equates the subpoena to a
fishing expedition, and finds that it is probable that wholly irrelevant documents could be produced
if the subpoena is not quashed. Defendant responds that the request should be enforced because
at its core it calls for relevant evidence and Defendant has no objection to PPD excluding
documents relating to damages. What sounds like a tacit admission by Defendant to the requests'
overbreadth ignores the undue burden placed on PPD, a non-party. Requiring PPD to review
documents in the first place to whittle its production in a way that is not overly broad runs afoul
of the balanced attention the court must afford a non-party's response to the subpoena. Similarly,
requesting all depositions and deposition materials from the previous Ketek civil lawsuits is also
facially overbroad. It is equally probable that these depositions address issues or deponents that
are entirely irrelevant to the claims at issue here, and therefore the requests are not narrowlytailored. Accordingly, PPD's motion to quash Defendant's subpoena duces tecum is ALLOWED.
For the foregoing reasons, the motion to quash or for protective order filed by PPD is
ALLOWED in part and DENIED in part as follows: PPD' s motion to quash Defendant's subpoena
to testify pursuant to Rule 30(b)(6) is DENIED for topics (1), (2), (3), and (5), and ALLOWED
for topics (4), (6), and (7); PPD's motion to quash Plaintiffs subpoena to testify pursuant to Rule
30(b)(6) is DENIED for topics (1)-(8a), and ALLOWED for topics (8b)-(10); and PPD's motion
to quash Defendant's subpoena duces tecum is ALLOWED.
So ordered, the 30 day ofNovember 2017.
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