Ferraro Family Foundation, Inc. v. Corcept Therapeutics Inc.

Filing 10

ORDER that pursuant to Fed. R. Civ. P. 45, Petitioners motion to compel compliance with the Subpoena 1 is GRANTED IN PART and DENIED IN PART. Petitioners motion to compel compliance is DENIED with respect to Request Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, and 11. Petitioners motion is GRANTED with respect to Request No. 10. Within 30 (thirty) days of the date of this Order, counsel for Respondent and Petitioner are ordered to meet and confer, in good faith, in order to attempt to resolve any pri vilege, confidentiality, or privacy disputes and to develop search terms or objective search criteria for use in identifying responsive and non-privileged documents within Respondents possession concerning Request No. 10 (excluding Corcept docum ents drawn from its own files). Following the meet and confer, the parties shall contact the Court if they are unable to resolve their concerns and wish to request a discovery conference. Respondents motion for sanctions 8 is DENIED. Signed by Magistrate Judge Karen L. Litkovitz on 11/30/2022. (art)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CORCEPT THERAPEUTICS, INC.,
Plaintiff,

Case No. 1:22-mc-24
Dlott, J.
Litkovitz, M.J.

vs.
STEPHEN ELLIOTT,
Defendant.

ORDER

Petitioner Corcept Therapeutics Inc. (“Corcept” or “Petitioner”) commenced this
miscellaneous action in support of litigation pending in the United States District Court for the
Northern District of California, Ferraro Family Foundation, Inc. v. Corcept Therapeutics Inc.,
Case No. 3:19-cv-01372 (N.D. Cal.). Petitioner asks the Court to compel Respondent Stephen
Elliott (“Elliott” or “Respondent”) to comply with the subpoena issued by Corcept. (Doc. 1).
This matter is before the Court on Petitioner’s motion to compel compliance with the subpoena
(Id.), Respondent’s response in opposition and motion for sanctions (Doc. 8), and Petitioner’s
reply memorandum (Doc. 9).
I. Background
Petitioner, “a publicly-traded specialty pharmaceutical company engaged in the discovery
and development of drugs that regulate the effects of the stress hormone cortisol,” is one of the
defendants in the underlying litigation. (Doc. 1 at PAGEID 8-9). Plaintiffs in the underlying
litigation allege that Corcept violated federal securities law by engaging in a “‘pervasive
Company-wide off-label marketing scheme’ to ‘dupe unsuspecting physicians’ ‘into
inappropriately prescribing Korlym.’” (Id. at PAGEID 9, citing Complaint at ¶ 1). 1 The

Korlym, an orphan-status rare disease drug, is an FDA-approved medication that Petitioner sells under the trade
name Korlym. (Doc. 1 at PAGEID 8).

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operative complaint in the underlying litigation “relies heavily on purported reports from four
confidential witnesses, including [Respondent] Mr. Elliott, who is identified as ‘CW11’ and is
cited more than 68 times in the Complaint.” (Id.).
Petitioner states that Respondent, Mr. Elliott, was a Corcept clinical sales specialist from
2012 to 2016, and plaintiffs in the underlying litigation “have relied heavily on information
provided by Mr. Elliott to support their allegations that Corcept engaged in off-label marketing
and told him to ‘sit down and shut up’ when he purportedly raised the issue.” (Id., citing
Complaint at ¶¶ 175-76, 187, 190-94, 213-15, 262, 267, 270, 283-87, 292, 302, 366-67, 370,
372-73, 375, 379, 392, 412, 414, and 421).
On March 9, 2022, Petitioner issued a subpoena directed to Respondent seeking several
“categories of documents related to the allegations in the Corcept Securities Action.” (Id.).
Specifically, the Subpoena sought the following documents from Respondent:
1. A copy of Your most recent Resume.
2. All Documents and Communications related to this Action.
3. All Documents and Communications concerning Your termination of
employment at Corcept, including but not limited to any termination or separation
agreement(s).
4. All Documents and Communications concerning Corcept.
5. All Documents and Communications concerning the Individual Defendants.
6. All Documents and Communications between You and any Governmental
Entity concerning Corcept, including, but not limited to, Documents You provided
to any Governmental Entity related to the allegation that Corcept was engaged in
off-label marketing.
7. All Documents and Communications between You and Plaintiffs, their counsel,
investigator(s) or other representative(s) in this Action.
8. All Documents and Communications related to the statements attributed to You
in the Complaint, including, but not limited to, those alleged at ¶¶ 175-76, 187, 1902

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94, 213-15, 262, 267, 270, 283-87, 292, 302, 366-67, 370, 372-73, 375, 379, 392,
412, 414, and 421 of the Complaint.
9. All Documents and Communications forming the basis of the statements
attributed to You in the Complaint.
10. All Documents and Communications concerning the allegation that Corcept
was engaged in off-label marketing.
11. All Documents and Communications concerning conversations with other
Confidential Witnesses about the Action or the allegation that Corcept was engaged
in off-label marketing, including, but not limited to, any recording, notes or other
memorialization of such conversation(s).
(Doc. 1, Exh. 1, at PAGEID 27). Respondent was served with the subpoena on March
10, 2022. (Id. at PAGEID 9; see also Id., Exh. 4, at PAGEID 422-23). Petitioner alleges
that the requested documents in the subpoena “go to the heart of the claims at issue in the
Corcept Securities Action, and Corcept is entitled to their production.” (Id. at PAGEID
10).
Petitioner alleges in the motion to compel that a month after receiving the subpoena,
counsel for Respondent conferred with counsel for Petitioner and stated that Respondent “did not
believe he could produce documents in response to the Subpoena because Mr. Elliott had already
produced relevant documents to a U.S. Attorney’s Office.” (Id.). Thereafter, on May 9, 2022,
Counsel for Respondent “informed Corcept that the U.S. Attorneys’ Office would be objecting to
the Subpoena, and Mr. Elliott would not be producing any documents for that reason.” (Id.).
On June 7, 2022, Respondent served Responses and Objections to the Subpoena. (Id.,
Exh. 6). In addition to what Petitioner describes as a “host of boilerplate objections,” Petitioner
alleges that Respondent “objected that the Requests call for the ‘disclosure of information
pertaining to the investigative activities of any governmental entity or personnel, which may
implicate the government’s interests in maintaining the confidentiality of its investigative

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activities.’” (Id.). After communicating with the U.S. Attorney’s Office, Petitioner informed
Respondent that “it was withdrawing Request No. 6.” (Id. at PAGEID 11, citing Id., Exh. 7). 2
Despite withdrawing Request No. 6, Petitioner alleges that Respondent “still refuses to produce
documents responsive to the remaining Requests in the Subpoena.” (Id.).
On July 28, 2022, Petitioner initiated the instant miscellaneous action in support of the
pending litigation in the Northern District of California. Specifically, Petitioner moves this
Court to compel Respondent’s compliance with the subpoena. (Doc. 1).
II. Analysis
The issue in this case is whether this Court should grant Petitioner’s motion to compel
compliance with the Subpoena issued to Respondent in the underlying litigation. Respondent
opposes the motion to compel and argues that the documents sought are not relevant, and the
requests “are overly broad, disproportionate, and would unduly burden Mr. Elliot.” (Doc. 8 at
PAGEID 467). For the following reasons, Petitioner’s motion (Doc. 1) is granted in part and
denied in part.
Federal Rule of Civil Procedure 45 governs motions to compel compliance with
subpoenas served on a non-party. Rule 45(a)(1)(D) provides that “[a] command in a subpoena to
produce documents, electronically stored information, or tangible things requires the responding
person to permit inspection, copying, testing, or sampling of the materials,” and Rule 45(c)(2)
similarly provides that “[a] subpoena may command . . . production of documents, electronically
stored information, or tangible things at a place within 100 miles of where the person resides, is
employed, or regularly transacts business in person. . . .” Fed. R. Civ. P. 45(a)(1)(D), (c)(2).

Request No. 6 seeks “All Documents and Communications between You and any Governmental Entity concerning
Corcept, including, but not limited to, Documents You provided to any Governmental Entity related to the allegation
that Corcept was engaged in off-label marketing.” (Doc. 1, Exh. 1, at PAGEID 27).

2

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Upon proper service of the subpoena, if the party to whom the subpoena was issued
wishes to challenge the request, the party may “serve . . . a written objection” (Fed. R. Civ. P.
45(d)(2)(B)) or “[o]n timely motion, the court for the district where compliance is required must
quash or modify a subpoena that:”
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits specified in Rule
45(c);
(iii) requires disclosure of privileged or other protected matter, if no exception or
waiver applies; or
(iv) subjects a person to undue burden.
Fed. R. Civ. P. 45(d)(3)(A).
It is well established that “the scope of discovery under a subpoena is the same as the
scope of discovery under Rule 26.” Gov’t Emps. Health Ass’n v. Actelion Pharms., Ltd., No.
2:22-mc-37, 2022 WL 5414401, at *1 (S.D. Ohio Oct. 7, 2022) (quoting Hendricks v. Total
Quality Logistics, LLC, 275 F.R.D. 251, 253 (S.D. Ohio 2011) (internal citation and quotation
marks omitted)). Rule 26(b) of the Federal Rules of Civil Procedure provides that “[p]arties 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.” Fed. R. Civ. P. 26(b)(1). Determining the
scope of discovery is within this Court’s discretion. See Bush v. Dictaphone Corp., 161 F.3d
363, 367 (6th Cir. 1998) (citing Lewis v. ACB Bus. Serv., Inc., 135 F.3d 389, 402 (6th Cir.
1998)). The scope of discovery under the Federal Rules “is traditionally quite broad[,]” Lewis,
135 F.3d at 402 (citing Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 501 (6th Cir. 1970)), and
Rule 26 acknowledges that “[i]nformation within this scope of discovery need not be admissible
in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). “When a nonparty challenges a
subpoena on grounds that the request is over-burdensome, the party seeking the discovery must
establish that the information sought is relevant.” Gov’t Emps. Health Ass’n, 2022 WL 5414401,
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at *1 (citing Spartanburg Reg. Healthcare Sys. v. Hillenbrand Indus., No. 1:05-mc-107, 2005
WL 2045818, at *4 (W.D. Mich. Aug. 24, 2005)). See also Ohio Fresh Eggs, LLC v. Smith &
Kramer, PC, No. 2:20-cv-5267, 2022 WL 4007613, at *2 (S.D. Ohio Sept. 2, 2022).
The information sought by the subpoena is relevant. In the order ruling on defendants’
motion to dismiss plaintiff’s third amended complaint in the underlying litigation, United States
District Judge Lucy Koh summarized plaintiffs’ allegations concerning Mr. Elliott that Corcept
deployed an off-label marketing scheme during his employment as a clinical sales specialist at
Corcept:
CW11 is a “former Corcept clinical sales specialist in the region comprised of Ohio,
Kentucky, and Tennessee from November 2012 through July 2016 responsible for
marketing and managing sales of Korlym to physicians.” Id. at ¶ 177. According
to CW11, beginning “in early 2016 [VP of Sales Tom] Burke began exerting
pressure on sales personnel to market Korlym to physicians as a first line medical
treatment for obesity, poorly controlled diabetes, or ‘mild’ or ‘sub-clinical’
Cushing’s syndrome.” Id. at ¶ 176. CW11 refused to market Korlym off-label, and
“went to Defendant Belanoff [CEO] and Burke [VP of Sales] to raise concerns
about Corcept’s off-label marketing and was told by Burke to ‘sit down and shut
up.’” Id. Finally, CW11 alleges that three Corcept clinical specialists were let go
during the Class Period for refusing to promote Korlym off-label. Id. at ¶¶ 192–
194.
***
Specifically, Plaintiffs have alleged that Corcept’s CEO, Defendant Belanoff,
accompanied CW11 on sales visits to physicians’ offices and on those visits
Belanoff marketed Korlym off-label to physicians. TAC at ¶ 370. When CW11
questioned Belanoff regarding these off-label promotions of Korlym, Belanoff
stated, “I can say what I want.” Id. CW11 later raised concerns to Belanoff and
VP of Sales Burke regarding Korlym’s off-label marketing practices and Burke told
CW11 to “sit down and shut up.” Id. at ¶ 176. Furthermore, CW11 recalls that
during the Class Period, three Corcept employees were let go for raising concerns
regarding off-label promotion of Korlym or for refusing to promote Korlym offlabel. Id. at ¶¶ 192-194.
Ferraro Fam. Found., Inc. v. Corcept Therapeutics Inc., No. 19-cv-01372, 2021 WL 3748325, at
*5, 19 (N.D. Cal. Aug. 24, 2021).
In the instant action, the subpoena generally requests documents and communications

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related to the underlying securities class action litigation, statements attributed to Mr. Elliott in
the Complaint, and the allegations that Corcept engaged in off-label marketing. (Doc. 1).
Contrary to Respondent’s general argument that the subpoena does not seek relevant information
(Doc. 8 at PAGEID 476-77), the requests for documentation and communications in the
subpoena are relevant to numerous issues in the underlying litigation, including whether Corcept
engaged in a “‘pervasive Company-wide off-label marketing scheme’ to ‘dupe unsuspecting
physicians’ ‘into inappropriately prescribing Korlym.’” (Doc. 1 at PAGEID 9, citing
Complaint). As Petitioner alleges, the operative complaint in the underlying litigation “relies
heavily on purported reports from four confidential witnesses, including [Respondent] Mr.
Elliott, who is identified as ‘CW11’ and is cited more than 68 times in the Complaint.” (Id.).
Petitioner alleges that “[d]iscovery thus far has revealed that at least one former Corcept
employee created recordings of meetings and conversations during the employee’s time at
Corcept.” (Doc. 9 at PAGEID 496, n.10). Therefore, to the extent Respondent may be in
possession of similar materials which relate to the off-label marketing scheme alleged in the
complaint, this information is relevant to the claims in the underlying litigation. Further,
documents surrounding Respondent’s termination from Corcept are relevant to cast light on
Respondent’s motivation in leaving Corcept given the allegations in the complaint that Corcept
was engaged in off-label marketing practices. Therefore, Petitioner has established that the
documents and communications that it seeks in the Subpoena are relevant for purposes of Rules
26 and 45.
In addition to relevancy, Rule 26 requires that the discovery be “proportional to the needs
of the case[.]” Fed R. Civ. P. 26(b)(1). In assessing proportionality under Rule 26, factors that
the Court considers include “the importance of the issues at stake in the action, the amount in

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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.” Id. “Courts are required to balance the need
for discovery against the burden imposed on the person ordered to produce documents, and the
status of a person as a non-party is a factor that weighs against disclosure.” Gischel v. Univ. of
Cincinnati, No. 1:17-cv-475, 2018 WL 9945170, at *4 (S.D. Ohio June 26, 2018) (quoting In re
Caresource Mgmt. Grp., Co., 289 F.R.D. 251, 253 (S.D. Ohio 2013)) (in turn quoting Am. Elec.
Power Co. v. United States, 191 F.R.D. 132, 136 (S.D. Ohio 1999)).
“A nonparty seeking to quash a subpoena bears the burden of demonstrating that the
discovery sought should not be permitted.” Great Lakes Transp. Holding, LLC v. Yellow Cab
Serv. Corp. of Florida, Inc., No. 11-50655, 2011 WL 2533653, at *1 (E.D. Mich. June 27, 2011)
(citing 9A Wright & Miller, Federal Practice and Procedure § 2463.1). See also Hendricks, 275
F.R.D. at 253. If the discovery sought appears “relevant on its face, the party resisting the
discovery has the burden to establish the lack of relevance,” or that the information sought is
proprietary and its disclosure might be harmful. Hendricks, 275 F.R.D. at 253. See also Med.
Ctr. at Elizabeth Place, LLC v. Premier Health Partners, 294 F.R.D. 87, 92 (S.D. Ohio 2013).
A. Request Nos. 1 and 6
Request No. 1, in which Petitioner seeks “A copy of Your most recent Resume” (Doc. 1,
Exh. 1, at PAGEID 27), is moot in light of counsel for Respondent’s representation to the Court
that “counsel collected and either have produced or will produce this document.” (Doc. 8 at
PAGEID 472; see also Id. at PAGEID 476, n.2). Likewise, Request No. 6 is denied as moot due
to Petitioner’s previous withdrawal of this request. (Doc. 1 at PAGEID 11; see also Id., Exh. 7,
at PAGEID 446).

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B. Request Nos. 2, 5, 7, 8, 9, and 11
Counsel for Respondent represents to the Court that the documentation and
communications sought in Petitioner’s Request Nos. 2, 5, 7, 8, 9, and 11 do not exist. In his
response in opposition (Doc. 8), counsel asserts that regarding Request Nos. 2, 5, 7, 8, 9, and 11,
“Interviews with Mr. Elliott and confirmatory searches and reviews of the documentary
collection reveal that no such documents or communications exist.” (Doc. 8 at PAGEID 472-73;
see also Id. at PAGEID 467-69). Counsel states that the extent of Respondent’s communication
with plaintiffs’ counsel was a telephone call where Respondent answered “a few stemwinder
questions. . . .” (Id. at PAGEID 469; see also Id. at PAGEID 476). Counsel further states that
Respondent “did not email or text with them, [and] he did not send them documents.” (Id. at
PAGEID 469). Petitioner does not challenge counsel for Respondent’s representation to the
Court that the documentation and communications sought in Petitioner’s Request Nos. 2, 5, 7, 8,
9, and 11 do not exist. (See Doc. 9).
Respondent cannot be compelled to produce documents or other evidence that does not
exist. See Solly v. Mausser, No. 2:15-cv-956, 2017 WL 4280935, at *2 (S.D. Ohio Sept. 27,
2017) (“Defendants do not have a duty to create documents that do not exist simply to comply
with a discovery request. The Court, therefore, cannot compel Defendants to produce documents
that do not exist.”); Brown v. Warden Ross Corr. Inst., No. 2:10-cv-822, 2011 WL 1877706, at
*5 (S.D. Ohio May 16, 2011) (“Defendants have represented that they do not have the
information Plaintiff seeks. The Court cannot require them to produce what they do not have.”);
Tolliver v. Liberty Mut. Fire Ins. Co., No. 2:06-cv-904, 2008 WL 4951792, at * 2 (S.D. Ohio
Nov. 17, 2008) (“A party cannot be compelled to produce documents which do not exist or
which it does not possess or control.”). Accordingly, Petitioner’s motion to compel compliance

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with Request Nos. 2, 5, 7, 8, 9, and 11 is denied.
C. Requests Nos. 3, 4, and 10
Respondent raises several objections concerning Request Nos. 3, 4, and 10 in Petitioner’s
Subpoena:
Request No. 3 All Documents and Communications concerning Your termination
of employment at Corcept, including but not limited to any termination or
separation agreement(s).
Response and Objection to Request No. 3: Elliott incorporates his General
Objections.
To the extent that any responsive documents exist, Elliott responds as follows:
Elliott objects to Request Number 3 under Rule 26(b)(1) of the Federal Rules of
Civil Procedure because it is vague, ambiguous, overbroad, and unduly
burdensome. Elliott also objects that Request Number 3 is unreasonably
duplicative and cumulative of discovery Plaintiff has propounded or can propound
on other sources from which the documents and materials sought are more readily
obtainable, including from Corcept’s own files.
Based on these Objections, Elliott will not produce documents in response to
Request Number 3 to the extent such exist.
Request No. 4 All Documents and Communications concerning Corcept.
Response and Objection to Request No. 4: Elliott incorporates his General
Objections.
To the extent that any responsive documents exist, Elliott responds as follows:
Elliott further objects to Request Number 4 because it seeks documents and
materials protected by the attorney work product doctrine, the attorney-client
privilege, and/or the common or joint interest doctrine. Elliott will not produce any
such privileged information. Elliott also objects to Request Number 4 under Rule
26(b)(1) of the Federal Rules of Civil Procedure because it is vague, ambiguous,
overbroad, and unduly burdensome. Elliott also objects to the extent that Request
Number 4 is unreasonably duplicative and cumulative of discovery Plaintiff has
propounded or can propound on other sources from which the documents and
materials sought are more readily obtainable.
Based on these Objections, Elliott will not produce documents in response to
Request Number 4 to the extent such exist.
***
Request No. 10 All Documents and Communications concerning the allegation
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that Corcept was engaged in off-label marketing.
Response and Objection to Request No. 10: Elliott incorporates his General
Objections.
To the extent that any responsive documents exist, Elliott responds as follows:
Elliott further objects to Request Number 10 because it seeks documents and
materials protected by the attorney work product doctrine, the attorney-client
privilege, and/or the common or joint interest doctrine. Elliott will not produce any
such privileged information.
Elliott also objects to Request Number 10 under Rule 26(b)(1) of the Federal Rules
of Civil Procedure because it is vague, ambiguous, overbroad, and unduly
burdensome. Elliott further objects that Request Number 10 is unreasonably
duplicative and cumulative of discovery Plaintiff has propounded or can propound
on other sources from which the documents and materials sought are more readily
obtainable.
Based on these Objections, Elliott will not produce documents in response to
Request Number 10 to the extent such exist.
(Doc. 1, Exh. 6, at PAGEID 437-42).
Respondent argues that these “Requests are overly broad, disproportionate, and would
unduly burden Mr. Elliott.” (Doc. 8 at PAGEID 467). Respondent contends the “vast
majority—if not all—of the documents implicated by the Requests target either Corcept’s own
files, or files Corcept could seek from Plaintiffs in the Corcept Securities Action. Yet Corcept
does not even try to show that it sought discovery from another source before serving the
Subpoena on Mr. Elliott, a nonparty.” (Id. at PAGEID 479) (internal citation omitted). Citing
authority from various district courts within the Sixth Circuit, Respondent argues that “there is
an overwhelming amount of authority that, before seeking document discovery from a nonparty,
a party must exhaust its own files and party discovery.” (Id., citing cases). Respondent argues
that “Corcept’s Requests are also unduly burdensome since they are overbroad.” (Id. at PAGEID
481). In support, Respondent points to the lack of any “limitation as to temporal scope or
relevance.” (Id.). In sum, Respondent argues that “Corcept cannot justify imposing on a
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nonparty the costs of reviewing and producing many—entirely irrelevant—files which it can
more cheaply locate on its own systems, or more by party discovery.” (Id. at PAGEID 482).
Petitioner argues that notwithstanding whether the discoverable information is available
from another source, Respondent “is obligated to produce” any documents in his possession
“regarding the statements attributed to him in the Complaint or regarding allegations that
Corcept is or has ever been engaged in off-label marketing. . . .” (Doc. 1 at PAGEID 15).
Petitioner further argues that Respondent may “have unique documents regarding his
communications with other confidential witnesses or with Plaintiffs” that other sources may not
possess. (Id., citing Plumbers & Pipefitters Loc. Union No. 630 Pension-Annuity Tr. Fund v.
Arbitron, Inc., 278 F.R.D. 335, 339, 345 (S.D.N.Y. 2011)). Petitioner contends that Respondent
has not met its burden to prove that the Subpoena is overly broad or unduly burdensome because
Respondent “has failed to articulate why Corcept’s Requests are especially—let alone unduly—
burdensome or would require anything other than a typical search through his documents to
identify any responsive materials.” (Id. at PAGEID 16).
1. Request No. 3
Petitioner’s motion to compel responses to Request No 3., i.e., “All Documents and
Communications concerning Your termination of employment at Corcept, including but not
limited to any termination or separation agreement(s)” is denied. It is undisputed that
Respondent was employed by Petitioner from November 2012 through July 2016. Petitioner
argues that Respondent “left Corcept in August of 2016, long before this litigation was
instigated. Thus, it is possible that certain documents in Mr. Elliott’s Corcept custodial file were
deleted, either by Mr. Elliott himself or by regular company practice, since there was no
obligation to preserve such documents at the time of his departure.” (Doc. 1 at PAGEID 494

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n.6) (emphasis added). Although Petitioner notes the lack of undue burden to Respondent, “[a]s
part of the undue burden analysis, courts within this Circuit have generally not required
production by a non-party when the same documents are available from a party.” Atlas Indus.
Contractors LLC v. In2Gro Techs. LLC, No. 2:19-cv-2705, 2020 WL 1815718, at *3 (S.D. Ohio
Apr. 10, 2020) (emphasis added) (citing cases). Petitioner has made no showing that it first
sought to obtain the requested documents from its own files to no avail before seeking to compel
Respondent to provide the same. See Id. (denying in relevant part the petitioner’s motion to
compel to the extent that the documents sought are in its own possession, custody, or control);
see also Elder v. Equifax Info. Servs., LLC, No. 21-11753, 2022 WL 2961516, at *3 (E.D. Mich.
July 26, 2022) (same). Accordingly, Petitioner’s motion to compel responses to Request No. 3 is
denied.
2. Request Nos. 4 and 10
Request No. 4 seeks “All Documents and Communications concerning Corcept.”
Request No. 10 seeks “All Documents and Communications concerning the allegation that
Corcept was engaged in off-label marketing.” Respondent alleges complying with these requests
would present an undue burden.
Request No. 4 is facially overbroad because it is not limited to information having any
bearing on the underlying litigation or temporally limited. For example, literal compliance with
this request would include production of documents like pay stubs and W-2 forms for the time
Respondent was employed by Corcept, which are wholly unrelated to the Corcept Securities
Action. The motion to compel Request No. 4 is denied.
Request No. 10 is clearly relevant, and it appears that Respondent has collected and
identified 40,000 potentially responsive documents. (Doc. 8 at PAGEID 471). Respondent

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applied search terms to a “Preliminary Review Set” of documents, which Respondent defines as
the 40,000 identified documents, minus “Corcept documents drawn from its own files (i.e., from
Corcept’s own email server)” and “photographs, videos, and other media without a text
component (few of which relate to Corcept at all, but some of which contain privileged or other
sensitive information).” (Id. at PAGEID 472). Subtracting the two stated categories leaves
20,000 documents, known as the “Preliminary Review Set.” (Id.). Instead of individually
conducting a document by document review, Respondent “applied the broad search terms (in
the disjunct): ‘Korlym’ OR ‘off-label’ OR ‘Corcept’ OR ‘Ferraro’ to the Preliminary Review
Set, and then conducted a responsiveness and privilege review of the resulting review set of
documents (and their families) which hit on one of these search terms. Many of these were junk
files (e.g., ‘XML’ temporary files created by one of the devices collected), but this process still
yielded around 300 files, which Mr. Elliott has produced or will soon produce.” (Id. at
PAGEID 473).
Petitioner alleges Respondent’s unilaterally-selected search terms were woefully
inadequate, and Respondent’s reference to “sensitive” documents is not clear. Petitioner also
objects to the exclusion of Corcept documents and media files.
Pursuant to Rule 26(b)(2)(C)(i), the Court must limit the scope of discovery if it
determines that the discovery is unreasonably cumulative or duplicative or that it can be obtained
from some other source that is more convenient, less burdensome, or less expensive. Fed. R.
Civ. P. 26(b)(2)(C)(i). To the extent Petitioner seeks documents “drawn from its own files (i.e.,
from Corcept’s own email server),” the Court is not persuaded that Petitioner cannot identify
from its own files the relevant documents that underpin Mr. Elliot’s allegations. Petitioner
alleges there is no “reasonable” way for identifying such documents, but Petitioner has made no

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showing it has made any such attempt. Without some showing that Petitioner cannot identify
and obtain the relevant discovery from its own files, the motion to compel Corcept documents
responsive to Request No. 10 is denied. See Atlas Indus., 2020 WL 1815718, at *3; Tolliver v.
Abuelo’s Int’l, LP, No. 2:20-cv-3790, 2021 WL 3188420, at *2 (S.D. Ohio July 28, 2021) (and
cases cited therein).
On the other hand, Respondent has failed to demonstrate that compliance with
Petitioner’s Request No. 10 with respect to the non-Corcept documents would be unduly
burdensome. Aside from stating that “it would be unduly burdensome and disproportionate to . .
. individually review photographs, videos, and other media without a text component” (Doc. 8 at
PAGEID 472), Respondent has not identified the type of burden he would face if Petitioner’s
motion to compel is granted. Nor has Respondent provided the Court with any information on
the anticipated costs of complying with Petitioner’s subpoena. Respondent cannot simply rely
on the “mere assertion that compliance would be burdensome without showing the manner and
extent of the burden. . . .” United States v. Blue Cross Blue Shield of Michigan, No. 10-cv14155, 2012 WL 4513600, at *5 (E.D. Mich. Oct. 1, 2012) (quoting 9A Wright & Miller,
Federal Practice and Procedure § 2463.1). Moreover, Respondent has not put forth any evidence
in support of his claim of undue burden and, consequently, he has failed to meet his burden. Cf.
Allen v. Howmedica Leibinger, GmhH, 190 F.R.D. 518, 525 (W.D. Tenn. 1999) (granting a nonparty’s motion to quash a subpoena where the non-party established that he would face a
substantial burden if required to comply with discovery requests where the non-party submitted
an unrebutted affidavit explaining the time and effort review of nearly 70,000 documents and
nearly a month of man-hours-compliance would require). See also Clark v. Louisville Jefferson
Cnty. Metro Gov’t, No. 3:17-cv-419, 2022 WL 4389549, at *8 (W.D. Ky. Sept. 22, 2022)

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(“Given the relevance of [the nonparty’s] testimony, the nature of the requested documents, and
the Plaintiffs’ explanations of [the nonparty’s] extensive involvement with their post-conviction
proceedings, [the nonparty’s] conclusory allegations of ‘undue burden’ and ‘harassment’ are not
persuasive and fall far short of the specific showing required.”). As Petitioner has demonstrated
the relevance of the information sought and Respondent has failed to meet his burden to show
that the production would be unduly burdensome, Petitioner’s motion to compel responses to
Request No. 10, with the exception of the Corcept documents, is granted.
To the extent that Respondent alleges that the documentation contains “privileged or
other sensitive information” (Doc. 8 at PAGEID 472), the Court lacks sufficient information to
make a definitive ruling on this issue. Respondent has asserted these concerns in an abstract way
without providing a privilege log to Petitioner or the Court. Accordingly, the Court finds that the
parties should first jointly attempt to resolve Respondent’s confidentiality concerns before the
Court addresses the issue. See Gischel, 2018 WL 9945170, at *6. Petitioner and Respondent are
hereby ordered to meet-and-confer by telephone, teleconference, or in person—not solely by the
exchange of written correspondence—within thirty days of the date of this Order to attempt to
resolve any privilege, confidentiality, or privacy disputes.
Likewise, the parties are ordered to meet and confer, under the same stated parameters,
on the search terms to be applied to the documents responsive to Request No. 10. “[A]n
individual served with a subpoena duces tecum has an obligation to conduct a reasonable search
to ensure that non-privileged documents that are relevant . . . are produced.” Ohio A. Philip
Randolph Inst. v. Smith, No. 1:18-cv-357, 2018 WL 6308849, at *5 (S.D. Ohio Dec. 3, 2018)
(quoting Alexander v. FBI, 186 F.R.D. 21, 38 (D.D.C. 1998)). “Designing search terms to be
used to produce emails or other electronically stored information requires ‘careful thought,

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quality control, testing, and cooperation with opposing counsel.’” (Id.) (quoting William A.
Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009)) (emphasis
added). Petitioner contends the search terms used by Respondent were woefully inadequate and
resulted in the exclusion of relevant and responsive documents. The Court tends to agree. Given
the allegations in the complaint, it would appear inclusion of the terms “Burke” and/or
“Belanoff” would have been reasonable in conducting a search for relevant documents.
Accordingly, within 30 days of the date of this Order, counsel for Respondent and Petitioner are
ordered to meet and confer, in good faith, in order to develop search terms or objective search
criteria for use in identifying responsive and non-privileged documents within Respondent’s
possession concerning Request No. 10. See, e.g., McNulty v. Reddy Ice Holdings, Inc., 271
F.R.D. 569, 570 (E.D. Mich. 2011) (requiring attorneys for both sides to meet and confer in good
faith “to develop search terms or objective search criteria for use in identifying responsive and
non-privileged documents. . . .”).
III. Respondent’s motion for sanctions (Doc. 8)
Respondent moves for sanctions against Petitioner under Fed. R. Civ. P. 45(d)(1) for
failing to take reasonable steps to avoid imposing an undue burden and expense on Respondent.
(Doc. 8). Fed. R. Civ. P. 45(d)(1) provides that a party issuing a subpoena “must take reasonable
steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court
for the district where compliance is required must enforce this duty and impose an appropriate
sanction—which may include lost earnings and reasonable attorney’s fees—on a party or
attorney who fails to comply.” Fed. R. Civ. P. 45(d)(1). “Whether an undue burden has been
imposed is a factual inquiry made on a case by case basis and courts have generally required
blatant abuse of the subpoena power before awarding sanctions. A disputed subpoena on its

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own, even if ultimately found unwarranted, typically does not support an imposition of sanctions.
Rather an element of bad faith is usually required.” N. Am. Rescue Prod., Inc. v. Bound Tree
Med., LLC, No. 2:08-cv-101, 2009 WL 4110889, at *13 (S.D. Ohio Nov. 19, 2009), objections
overruled, 2010 WL 1873291 (S.D. Ohio May 10, 2010) (internal quotations and citations
omitted). 3 “Thus, when an issuing party engages in good faith negotiations to resolve conflicts
over subpoenas and to avoid imposing undue burden, courts have declined to impose Rule 45
sanctions in the absence of other aggravating factors.” Ohio Fresh Eggs, LLC, 2022 WL
4007613, at *6 (citing Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (5th Cir. 1994). “An award of
sanctions under Rule 45(d)(1) is left to the Court’s discretion.” In re Risner, No. 2:21-mc00002, 338 F.R.D. 380, 384 (S.D. Ohio Mar. 29, 2021) (citations omitted).
Respondent fails to point to any behavior by Petitioner rising to a sanctionable level.
Respondent argues that “Corcept has refused at every step to narrow its overbroad and
disproportionate Subpoena, and has specifically scoffed at the well-settled requirement of
exhausting first-party sources before shifting discovery costs to nonparties.” (Doc. 8 at PAGEID
483). In support, Respondent cites In re: Mod. Plastics Corp., 890 F.3d 244 (6th Cir. 2018),
with no accompanying explanation of its relevance to the instant matter. The Sixth Circuit’s
decision in In re: Mod. Plastics Corp. is inapposite to the facts of this case. There, the Sixth
Circuit affirmed the lower court’s finding that sanctions were warranted under Rule 45(d)(1)
because “the subpoenas issued to the non-parties were unduly burdensome for reasons that
included the undisputedly broad scope of the requests in terms of the number of categories, the
breadth of each category, and the temporal reach of the requests” and, the issuing party “would
have known that complying with such subpoenas would involve considerable time and resources,
Cf. In re: Mod. Plastics Corp., 890 F.3d 244, 251 (6th Cir. 2018) (where the Sixth Circuit indicated that a finding
of bad faith is not required to impose sanctions under Rule 45).

3

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implicate significant concerns about customer privacy for [the non-party], and require review for
privileged communications and attorney work product regarding matters for which [attorneys for
the non-party] had been retained.” Id. at 252. The Court of Appeals concluded that “much of
the expense could have been avoided either initially, or by engaging with Respondents’ counsel
to address the concerns, tailor the document requests, or comment on the proposed protective
order. Id.
Unlike the conduct in In re: Mod. Plastics Corp., here, Petitioner narrowed the Subpoena
after conferring with counsel for Respondent by voluntarily removing Request No. 6 and has
offered a continued willingness to engage in discussions to narrow the requests in the Subpoena
and to work with Respondent to resolve any outstanding issues. (See Doc. 9, Exhs. 1 and 2; see
also Id. at PAGEID 492, 497-501). See In re Risner, 338 F.R.D. at 383 (“Thus, when an issuing
party engages in good faith negotiations to resolve conflicts over subpoenas and to avoid
imposing undue burdens, courts have declined to impose Rule 45 sanctions in the absence of
other aggravating factors.”).
Respondent has provided no evidence that Petitioner abused the subpoena process or
demonstrated any bad faith. Consequently, Respondent’s motion for sanctions is denied.
See Id. at 384 (denying motion for sanctions where “the subpoena did not impose undue burdens
and [the issuing party] took reasonable steps to avoid such an imposition”).
IT IS THEREFORE ORDERED:
1. Pursuant to Fed. R. Civ. P. 45, Petitioner’s motion to compel compliance with the Subpoena
(Doc. 1) is GRANTED IN PART and DENIED IN PART. Petitioner’s motion to compel
compliance is DENIED with respect to Request Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, and 11. Petitioner’s
motion is GRANTED with respect to Request No. 10. Within 30 (thirty) days of the date of

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this Order, counsel for Respondent and Petitioner are ordered to meet and confer, in good faith,
in order to attempt to resolve any privilege, confidentiality, or privacy disputes and to develop
search terms or objective search criteria for use in identifying responsive and non-privileged
documents within Respondent’s possession concerning Request No. 10 (excluding Corcept
documents drawn from its own files). Following the meet and confer, the parties shall contact
the Court if they are unable to resolve their concerns and wish to request a discovery conference.
2. Respondent’s motion for sanctions (Doc. 8) is DENIED.
IT IS SO ORDERED.
11/30/2022
Date: ______________

_________________________
Karen L. Litkovitz
Chief United States Magistrate Judge

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