City of Huntington, West Virginia v. AmerisourceBergen Drug Corporation et al

Filing 639

DISCOVERY RULING 11: ORDER GRANTING PLAINTIFFS' MOTION TO COMPEL DEPOSITION OF STEVEN H. COLLIS (AMERSOURCEBERGEN) granting the 517 MOTION to Compel the deposition of Mr. Collis as further defined herein; denying the 609 MOTION by Amerisourc eBergen Drug Corporation to Strike Plaintiffs' 606 Reply Memorandum; granting the 609 MOTION by AmerisourceBergen Drug Corporation For Leave to File a Sur-reply; directing that AmerisourceBergen Drug Corporation shall produce Steven H. Collis for deposition within thirty (30) days of entry of this Order on a date and location mutually agreed upon by the parties. Signed by Special Master Christopher C. Wilkes on 6/28/2020. (cc: counsel of record; any unrepresented party) (jsa)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
THE CITY OF HUNTINGTON,
Plaintiff,
v.
CIVIL ACTION NO. 3:17-01362
AMERISOURCEBERGEN DRUG
CORPORATION, et al.,
Defendants.
________________________________
CABELL COUNTY COMMISSION,
Plaintiff,
v.
CIVIL ACTION NO. 3:17-01665
AMERISOURCEBERGEN DRUG
CORPORATION, et al.,
Defendants.

DISCOVERY RULING 11
ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL DEPOSITION
OF STEVEN H. COLLIS (AMERSOURCEBERGEN)
Pending before the Special Master is Plaintiffs’ motion to compel the deposition of
Amerisource Bergen Drug Corporation (“ABDC”) CEO Steven H. Collis (ECF 517). Plaintiff has
withdrawn their Motion to Compel Deposition of John H. Hammergren. ABDC filed their response
(ECF 586) to which Plaintiffs replied (ECF 606). ABDC took exception to the reply and filed a
motion to strike (ECF 609) and/or requested permission to submit a sur-reply which was included
(ECF 609-2). Having fully considered the issues, the Special Master DENIES the motion to strike
(ECF 609), GRANTS the motion to submit a sur-reply (ECF 609-2) and GRANTS the motion to
compel the deposition of Mr. Collis (ECF 517) as further defined herein.
I. Relevant Background

This case has been transferred back to West Virginia for trial as the second bellwether in
MDL2804. The Sixth Circuit Court of Appeals described the “tragic backdrop” of this “potentially
momentous” litigation as the "the vast oversupply of opioid drugs in the United States [which] has
caused a plague on its citizens and their local and State governments." In re Nat'l Prescription
Opiate Litig., 927 F.3d 919, 923-24 (6th Cir. 2018).
West Virginia is no stranger to the opioid epidemic nor to this litigation. The Congressional
hearing on the opioid epidemic in West Virginia culminated in a 325 page report entitled: Red
Flags and Warning Signs Ignored: Opioid Distribution and Enforcement Concerns in West
Virginia. The Subcommittee on Oversight and Investigations of the United States House of
Representatives Energy and Commerce Committee held a hearing on May 8, 2018, wherein it
received sworn testimony from, and posed written questions1 to ABDC Chairman, President, and
CEO, Steven H. Collis. The purpose of the hearing was to “examine the role that [ABDC] may
have played in contributing to the opioid epidemic as well as distribution practices specific to West
Virginia.” Red Flags Report, p. 40.
Plaintiffs filed a Notice of Video Deposition of Mr. Collis (ECF 514). ABDC refused to
present its senior corporate executive for deposition citing the “apex doctrine” leading to the filing
of the instant motion and this discovery dispute. The Special Master has considered ABDC’s
motion to strike (ECF 609) the Plaintiffs’ reply and denies the same. The timing of the disclosure
of the Congressional documents set forth in ABDC-WVFED_PROD023 (34 documents) is of no
consequence to the pending motion. The Special Master notes there exists bilateral accusations of

1

Plaintiffs proffered for the Court that Congress posed a series of written questions to Mr. Collis including, but not
limited to, May 8, 2017 (ABDCMDL00367145), February 15, 2018 (ABDCMDL00367149), May 31, 2018
(ABDCMDL00451026), July 3, 2018 and October 10, 2019. ABDC produced the written responses in a series of
discovery disclosures which are now of record.

misconduct which are addressed in the reply and sur-reply. Neither impact the factual and/or legal
basis for the adjudication of the motion to compel the deposition of Mr. Collis.
II. Positions of the Parties
ABDC argues that under the "apex doctrine," Plaintiffs should not be permitted to depose
Mr. Collis because (1) Mr. Collis goes not have unique, personal knowledge, and that (2) the
information Plaintiffs seek can be obtained through a less burdensome means. (ECF 586 at 2).
ABDC contends that there has been extensive discovery in this litigation, including more than 30
depositions of ABDC employees and company executives responsible for diversion control,
regulatory issues, government affairs, and communications. ABDC notes it has agreed to produce
Mr. Collis’ custodial file and that compelling his testimony is “unduly burdensome and nothing
more than an attempt to harass Mr. Collis and the Company.” (ECF 486 at 14-15). Although not
dispositive Plaintiffs’ note ABDC did not submit an affidavit from Mr. Collis concerning his lack
of unique, personal knowledge.
Plaintiffs argue that the United States Court of Appeals for the Fourth Circuit has not
adopted the apex doctrine, nor commented on its validity. Moreover, Plaintiff correctly cites In re
C. R. Bard, Inc., 2014 U.S. Dist. LEXIS 89147 (S.D. W.Va. June 30, 2014) as the most recent
consideration of the apex doctrine by the U.S. District Court for the Southern District of West
Virginia. Plaintiffs ask the Court to apply the same standard, reasoning and conclusion. Plaintiffs
argue that the importance of this litigation, coupled with Mr. Collis’ voluntary Congressional
testimony, justify an order compelling his testimony with or without consideration of the apex
doctrine.
III. Relevant Legal Principles

The Special Master finds instructive the legal principles set forth in In re C. R. Bard, Inc.
which are summarized herein. In general, a party is entitled to discovery which is "relevant to any
party's claim or defense and proportional to the needs of the case." Fed. R. Civ. P. Rule 26(b)(1).
The recent amendment to Rule 26(b)(1) reminds parties that discovery must also be 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. This rule "cautions that all permissible discovery
must be measured against the yardstick of proportionality." In re C. R. Bard, Inc. at *454 (citations
omitted).
Under Federal Rule of Civil Procedure 26(c), discovery may be restricted or prohibited
when necessary to protect a person or party from annoyance, embarrassment, oppression, or undue
burden or expense. An order under Rule 26(c) issues upon a showing of good cause made in
relation to a motion asserted by the person or party opposing the discovery. The moving party
carries the burden of demonstrating the need for protection. To prevail on the grounds of
burdensomeness, oppression, or breadth, the opposing party “must do more to carry its burden than
simply make conclusory and unsubstantiated arguments.” In re C. R. Bard, Inc. at *455 (citations
omitted).
The "apex doctrine" applies to a specific subset of deposition notices that demand the
appearance of high-level executives or high-ranking government officials. Developed to prevent a
litigant from harassing or burdening a corporate or government adversary by taking depositions of
its apex employees, the apex doctrine is both an expression of the proportionality requirement and
a presumption of good cause for a protective order under Federal Rule of Civil Procedure 26(c).

Under the apex doctrine, before proceeding with the deposition of a high-level executive, a party
must show that the executive (1) possesses special or unique information relevant to the issues
being litigated, and (2) the information cannot be obtained by a less intrusive method, such as
through written discovery or by deposing lower-ranking employees. In re C. R. Bard, Inc. at *458
(citations omitted).
Although the apex doctrine does not grant free passes to corporate executives to escape
deposition testimony, it plainly deviates from the long-standing rule that "[a] witness ordinarily
cannot escape examination by denying knowledge of any relevant facts, since the party seeking to
take the deposition is entitled to test the witness's lack of knowledge." In re C. R. Bard, Inc. at
*459 (citations omitted). Application of the apex doctrine is also significant because it reallocates
the burden that accompanies a motion for protective order. To show good cause under the apex
doctrine, the moving party need only submit an affidavit from the executive stating that he or she
lacks superior or unique knowledge of the relevant facts, and the burden then shifts to the
proponent of the deposition to demonstrate the executive's likely knowledge and to show that less
burdensome discovery methods have been or will be unsatisfactory, insufficient, or inadequate. Id.
IV. Discussion
As generally noted by this Court in Bard, the apex doctrine ensures that there are good
faith reasons for requiring an employee at the peak of corporate management to take time out of
his or her busy schedule to testify. The prerequisites to an apex deposition are simple. The
executive must have unique personal knowledge of relevant facts, and the information known to
the executive must not be obtainable by an easier, less intrusive method of discovery than taking
his or her deposition.

The difficulty in applying the apex doctrine can often lie in determining what qualifies as
"unique" personal knowledge. In re C. R. Bard, Inc. at *461. Such is not the case in this instance.
Unlike the apex deponent in Bard, ABDC did not submit an affidavit from Mr. Collis denying
unique, personal knowledge of relevant facts. Nor does ABDC attest that deposing its CEO will
be difficult from the standpoint of “convenience and burdensomeness”; nor that his position
“places extraordinary demands on his time” which impairs his ability to “sit for a full day of
testimony”; nor that while Collis is “participating in the deposition, it is unlikely that another
employee will be capable of covering his duties and obligations.” Id. at *462. None of these factors
are implicated in the present discovery dispute.
Borrowing from the reasoning in Bard, this Court assessed the alleged burden of a
deposition of a senior executive (C.R. Bard President and CEO John Weiland) in a mass tort
multidistrict litigation as follows:
The rationale behind the apex doctrine is that, without the required showing, high-level
executives will be exposed to repetitive, abusive, and harassing depositions. That concern
is not present here. To the contrary, Plaintiffs propose to take Weiland’s deposition just once
for use in approximately 10,000 cases currently pending in this MDL and in state courts.
Accordingly, the burden is minimal when viewed in the context of the MDL. The
extraordinary number of cases and the astronomical amount in controversy clearly weigh
against the application of a rigid apex deposition rule better suited to an individual personal
injury, employment, or contract dispute in which the ‘apex’ official had no personal
knowledge.
Id. at *464. This is not a case where the “apex” official has no personal knowledge. Plaintiffs
proffered for the record numerous examples from Mr. Collis’ written and verbal answers to
Congress which demonstrate core competence, personal involvement and direct knowledge of the
factual issues the Court must decide during the bench trial. Mr. Collis has demonstrated that he
possesses “special or unique information relevant to the issues being litigated” through a wide
range of subject matters addressed during the Congressional inquiry.

Regardless of whether or not the apex doctrine is adopted in the Fourth Circuit, the issues
surrounding Plaintiffs' notice to depose Mr. Collis can be resolved by considering the
proportionality principles of Rule 26(b)(1).
The “importance of the issues at stake” in this case are paramount and unparalleled. The
opioid epidemic in West Virginia is documented in a Pulitzer Prize winning newspaper series,
triggered a Congressional investigation, spawned lawsuits brought by all 55 counties in West
Virginia (including the Attorney General) in federal and state court.
The “amount in controversy” in this action is potentially in the hundreds of millions of
dollars. Plaintiffs seek an abatement remedy for conduct they allege caused or contributed to the
opioid epidemic in The City of Huntington and Cabell County, West Virginia. The amount in
controversy is unquestionably significant.
The parties' “relative access to relevant information” weighs heavily in favor of compelling
the deposition. The voluminous discovery record in this case demonstrates the complex and
difficult burden of proof necessary for Plaintiffs to prevail at trial. Much, if not all, of the relevant
information is exclusively in the possession of ABDC. Mr. Collis voluntarily testified before
Congress on behalf of ABDC on the very same factual issues pending before the Court. Portions
of this testimony were relevant and unique to conduct that may have impacted or occurred in this
jurisdiction. Plaintiffs argue, and the Special Master agrees, that Plaintiffs should be permitted to
test the validity, transparency and completeness of the Congressional testimony.
The parties' resources, or the lack thereof, is not a decisive factor. Both the Plaintiffs and
ABDC have expended significant resources during this litigation. Deposing Mr. Collis is not such
a financial burden as to justify a protective order.

The Special Master finds the deposition of Mr. Collis is important to resolving the issues
pending before the Court. His testimony will directly address many of the cornerstone factual
issues the Court must decide as the trier of fact in this stipulated bench trial. Mr. Collis’ position
on ABDC’s role in the opioid epidemic during his Congressional testimony underscores the scope
and depth of his knowledge of the factual issue pending before the Court. The Special Master
concludes the Court will find the testimony of Mr. Collis important to the resolution of this matter.
The burden or expense of Mr. Collis deposition does not outweigh its likely benefit. His
testimony may streamline and advance the evidence presented at trial and significantly benefit the
Court. Moreover, his deposition has been cross-noticed by the Plaintiffs in the West Virginia Mass
Litigation Panel. Together with the West Virginia plaintiffs in MDL2804, all 55 counties and
numerous municipalities in the State are presently engaged in litigation against ABDC.
Compelling a single deposition, with appropriate safeguards and limitations, will significantly
advance the discovery record for all the West Virginia cases pending in federal and state court.
Finally, when the scales of justice are balanced, the “tragic backdrop” of this “potentially
momentous” litigation justifies the deposition of ABDC’s chief executive officer regarding "the
vast oversupply of opioid drugs in the United States [which] has caused a plague on its citizens
and their local and State governments." In re Nat'l Prescription Opiate Litig., 927 F.3d 919, 92324 (6th Cir. 2018).
It is hereby ORDERED that AmerisourceBergen Drug Corporation shall produce Steven
H. Collis for deposition within thirty (30) days of entry of this Order on a date and location
mutually agreed upon by the parties. Plaintiffs may elect to conduct the deposition live and/or
remotely in accordance with the deposition protocols established by the Court. Plaintiffs shall
have seven (7) hours on the record for questioning and must coordinate with the cross-noticing

WVMLP plaintiffs to allocate time accordingly. The subject matters are limited to those addressed
during the Congressional hearing and the written responses produced by ABDC. Upon request the
Special Master will make himself available to attend (live or remotely) the deposition to resolve
any discovery disputes and ensure the deposition is conducted efficiently and properly. Counsel
shall confer with the Special Master regarding the deposition date as soon as a date has been agreed
upon to ensure availability.

RESPECTFULLY SUBMITTED,
/s/ Christopher C. Wilkes
Christopher C. Wilkes
Special Master
Dated: June 28, 2020