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

Filing 832

MEMORANDUM OPINION AND ORDER directing that the DEA's 502 , 571 objections to 474 Discovery Ruling 5 and 519 Discovery Ruling 6 are SUSTAINED as more fully set forth herein; Insofar as the parties' 320 , 385 motions to compel were granted in those rulings, those motions are hereby DENIED. Signed by Senior Judge David A. Faber on 8/5/2020. (cc: counsel of record; interested parties) (hkl)

Case 3:17-cv-01362 Document 832 Filed 08/05/20 Page 1 of 18 PageID #: 16843

IN THE 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.
________________________________
MEMORANDUM OPINION AND ORDER
Pending before the court are the Drug Enforcement
Administration’s (DEA) Objections to two different discovery
rulings of Special Master Wilkes.

See ECF Nos. 502 and 571.

Those objections are fully briefed and ready for disposition.
I.
These two cases are related to thousands of other lawsuits
that have been filed throughout the country in recent years

Case 3:17-cv-01362 Document 832 Filed 08/05/20 Page 2 of 18 PageID #: 16844

relating to the opioid crisis.1

“These cases concern the alleged

improper marketing of and inappropriate distribution of various
prescription opiate medications into cities, states, and towns
across the country.”

In re Nat'l Prescription Opiate Litig., 290

F. Supp.3d 1375, 1377 (J.P.M.L. 2017).

The Opioid MDL (MDL 2804)

was created by the Judicial Panel on Multidistrict Litigation
(JPML) in December of 2017 after the JPML determined that a large
number of cases should be centralized for pretrial proceedings in
the Northern District of Ohio to coordinate the resolution of
these actions.

See id. at 1378.

Given his previous experience

with multidistrict litigation, MDL 2804 was assigned to United
States District Judge Dan A. Polster.

See id. at 1379.

The JPML

expressed its confidence in Judge Polster’s ability to manage
this complex litigation, indicating that it had “no doubt that
Judge Polster will steer this litigation on a prudent course.”
Id. at 1379-80.
Since MDL 2804's formation, well over 2,000 cases have been
transferred to the MDL court.

See In re Nat'l Prescription

1

On October 26, 2017, President Trump directed the
Secretary of Health and Human Services to declare the opioid
crisis a Public Health Emergency. See Combatting the National
Drug Demand and Opioid Crisis, 82 Fed. Reg. 50305 (Oct. 26,
2017). According to that Presidential Memorandum, as of that
date, “more than 300,000 Americans have died of an opioid
overdose since 2000[,]. . . . more than 2.1 million of our fellow
citizens are addicted to opioids, and in 2014 more than 1,500
people were treated each day in emergency departments for opioidrelated emergencies.” Id.
2

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Opiate Litig., No. 1:17-MD-2804, 2019 WL 4686815, at *1 (N.D.
Ohio Sept. 26, 2019).

In his management of the MDL, Judge

Polster has, among other things, overseen “discovery involving
over 450 depositions and over 160 million pages of documents” and
ruled “on innumerable discovery motions, ranging from the trivial
to motions to compel production of documents from the United
Id. at *2.

States Drug Enforcement Agency”.

Specifically, with

respect to the DEA, Judge Polster notes that “the DEA and the
parties thoroughly and vigorously negotiated the scope of MDL
discovery, in light of the needs of the case and the burden on
the DEA as a non-party, governmental agency.

Disputes were

mediated and resolved by Special Master Cohen.

Ultimately, DEA

produced thousands of pages of documents and provided several
witnesses for lengthy deposition.”

ECF No. 502-1.

In January, these two cases, designated in the MDL as “Track
Two” cases, were remanded to this court for further proceedings.
The remanded cases were significantly narrowed, in both the
number of claims and defendants.

Only plaintiffs’ public

nuisance claims against the “The Big Three” distributor
defendants — AmerisourceBergen Drug Corporation, McKesson
Corporation, and Cardinal Health, Inc. — are before this court.
According to Judge Polster’s “vision”, these cases were to be
remanded only “after some period of discovery” and “after they

3

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are streamlined and otherwise made more trial-ready.”

ECF No.

2950 in Case No. 1:17-MD-2804.
Both plaintiffs and defendants have requested additional
discovery from DEA.

On February 21, 2020, defendants filed their

Notice of Subpoenas for Testimony and Production of Documents to
the U.S. Drug Enforcement Administration.

See ECF No. 502-2.

Their request seeks the production of 36 categories of documents
from 1996 to the present.

See id.

The following are

representative of the nature of these oftentimes broad requests:
7.

8.

All Documents referring or relating to Your
efforts to suspend, revoke, or seek the suspension
or revocation of registrations or licenses of, or
fine or otherwise sanction any distributors,
doctors, pharmacies, pharmacists, healthcare
providers or other persons or entities because of
the alleged diversion or trafficking of
Prescription Opioids within or into the City of
Huntington, Cabell County, or any town, village,
or city within Cabell County.

18.

Id.

All Documents and Communications identifying,
discussing, or relating to the individuals or
entities You suspect or know have unlawfully
produced, transported, diverted, sold, and/or
trafficked Prescription or Illicit Opioids within
or into the City of Huntington, Cabell County, or
any town, village, or city within Cabell County.

All Documents related to any investigation of
suspicious orders reported by Defendants for West
Virginia pharmacies, hospitals, or other
dispensers for the Relevant Time Period.

Defendants’ Touhy letter of February 21, 2020, makes clear

that defendants were requesting “documents and testimony pursuant

4

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to Federal Rule of Civil Procedure 30(b)(6) from DEA relating,
but not limited to,” thirty categories.

Id.

On April 24, 2020, Michael B. Stuart, the United States
Attorney for the Southern District of West Virginia responded to
defendants’ discovery requests.

See ECF No. 502-3.

Because the

DEA is an agency under the Department of Justice (DOJ),
defendants’ Touhy requests were evaluated under DOJ regulations.
See id.

According to DOJ’s regulations, DEA employees are

prohibited from disclosing official information absent express
authorization from DOJ.

2

See 28 C.F.R. § 16.22(a).2

In

That regulation reads in full:

§ 16.22 General prohibition of production or disclosure in
Federal and State proceedings in which the United States is not a
party.
(a) In any federal or state case or matter in which the
United States is not a party, no employee or former
employee of the Department of Justice shall, in
response to a demand, produce any material contained in
the files of the Department, or disclose any
information relating to or based upon material
contained in the files of the Department, or disclose
any information or produce any material acquired as
part of the performance of that person’s official
duties or because of that person’s official status
without prior approval of the proper Department
official in accordance with §§ 16.24 and 16.25 of this
part.
(b) Whenever a demand is made upon an employee or
former employee as described in paragraph (a) of this
section, the employee shall immediately notify the U.S.
Attorney for the district where the issuing authority
is located. The responsible United States Attorney
shall follow the procedures set forth in § 16.24 of
this part.
5

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determining whether production or disclosure should be
authorized, the regulations dictate that department officials
consider: “(1) Whether such disclosure is appropriate under the
rules of procedure governing the case or matter in which the
demand arose, and (2) Whether disclosure is appropriate under the
relevant substantive law concerning privilege.”
16.26(a).

28 C.F.R. §

Disclosure is prohibited if any of the following

exist:
(1) Disclosure would violate a statute, . . . or a rule
of procedure, such as the grand jury secrecy rule, F.R.
Cr. P., Rule 6(e),
(2) Disclosure would violate a specific regulation,
(3) Disclosure would reveal classified information,
unless appropriately declassified by the originating
agency,

(c) If oral testimony is sought by a demand in any case
or matter in which the United States is not a party, an
affidavit, or, if that is not feasible, a statement by
the party seeking the testimony or by his attorney,
setting forth a summary of the testimony sought and its
relevance to the proceeding, must be furnished to the
responsible U.S. Attorney. Any authorization for
testimony by a present or former employee of the
Department shall be limited to the scope of the demand
as summarized in such statement.
(d) When information other than oral testimony is
sought by a demand, the responsible U.S. Attorney shall
request a summary of the information sought and its
relevance to the proceeding.
6

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(4) Disclosure would reveal a confidential source or
informant, unless the investigative agency and the
source or informant have no objection,
(5) Disclosure would reveal investigatory records
compiled for law enforcement purposes, and would
interfere with enforcement proceedings or disclose
investigative techniques and procedures the
effectiveness of which would thereby be impaired,
(6) Disclosure would improperly reveal trade secrets
without the owner’s consent.
28 C.F.R. § 16.26.
United States Attorney Stuart declined to authorize the
disclosure of the information sought “[a]fter carefully
considering [defendants’] request, consulting with the DEA,
applying all of the above [Touhy] factors, and reviewing the
relevant procedural and substantive law”.

ECF No. 502-3.

In so

doing, Stuart concluded that defendants’ “requests are not
appropriate under the procedural rules governing the case” and
“that releasing the requested information would not be
appropriate under the law concerning privilege; nor would it be
appropriate under 28 C.F.R. § 16.26(b).”

Id.

Stuart then went

on to outline a number of specific objections as reasons for the
nondisclosure, including:
1.

Your Document and Testimony Requests Are
Unreasonably Cumulative and Duplicative.

2.

Your Request Fails to Provide a Summary of
Information Sought.

3.

Your Request Fails to Provide a Statement of
Relevance.

7

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4.
5.

Your Testimony Request Fails to Describe 30(b)(6)
Topics with Reasonable Particularity.

6.

Your Document and Testimony Requests Seek LawEnforcement Sensitive Information.

7.

Your Requests Violate the Privacy Act, 5 U.S.C. §
552a.

8.
Id.

Your Document and Testimony Requests Are Overly
Broad and Unduly Burdensome.

Your Requests Seek Information Available from
Other Sources, Including Defendants.

Stuart’s letter gave specific examples of how DEA had made
See id.

these determinations as to each objection listed above.

On April 14, 2020, defendants filed a motion to compel the
DEA to respond to its discovery requests.

See ECF No. 320.

After that motion was fully briefed, Special Master Wilkes,
granted defendants’ motion.

See ECF No. 374.

Plaintiffs’ requests of the DEA were contained in three
Touhy letters dated October 28, 2019, February 3, 2020, and March
19, 2020.

See ECF Nos. 573, 573-2, and 573-4.

DEA did provide

documents in connection with the two earlier requests.
Nos. 573-1, 573-3, and 386-2.

See ECF

However, by letter dated April 24,

2020, U.S. Attorney Stuart refused to authorize disclosure of
material responsive to a number of plaintiffs’ requests.
No. 386-2.

See ECF

According to Stuart, plaintiffs’ requests “are

unreasonably burdensome, cumulative, duplicative, and improper
under the applicable substantive and procedural requirements.”

8

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Id.

Stuart then went on to outline a number of specific

objections as reasons for the nondisclosure, including:
1.
2.

Your Request Fails to Provide a Summary of
Information Sought.

3.

Your Request Fails to Provide a Statement of
Relevance.

4.

Your Document Requests Are Overly Broad and Unduly
Burdensome.

5.

Your Document Requests Seek Law Enforcement
Sensitive Information.

6.
Id.

Your Document Requests Are Unreasonably Cumulative
and Duplicative.

Your Document Requests Seek Information Available
from Other Sources, Including Defendants.

As with his letter to defendants, Stuart provided specific

examples of each objection raised.

See id.

On May 1, 2020, plaintiffs filed a motion to compel the DEA
to respond to its discovery requests.

See ECF No. 385.

After

that motion was fully briefed, Special Master Wilkes, granted in
part and denied in part plaintiffs’ motion.

See ECF No. 519.

In its response to the motions to compel, the DEA provided
declarations from Heather Wehrle, Acting Diversion Group
Supervisor in DEA’s Charleston Office.
573-5.

See ECF Nos. 502-4 and

The Wehrle declarations explain in great detail the

significant time and resources that the DEA would have to expend
in complying with the parties’ requests.

9

See id.

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II.
The court reviews objections to factual and legal findings
of a special master de novo and rulings on procedural matters for
abuse of discretion.

See Fed. R. Civ. P. 53(f)(3)–(5); see also

ECF No. 200 (Order of Appointment).
III.
“In United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951), the Supreme Court held that a head of a federal agency
may make the determination on his or her sole authority to
produce documents and authorize employee’s testimony in response
to a subpoena or other demand for information.”

RLI Ins. Co. v.

Nexus Services, Inc., Civil Action No. 5:18-CV-00066, 2020 WL
1496466, at *1 n.1 (W.D. Va. Jan. 17, 2020).

“[All these] years

later, Touhy is yet recognized in this circuit and elsewhere as
the legal source for the right of a federal agency to exercise
control over its resources, including its employees sought by
others for litigation purposes.”

United States v. Lecco, 495 F.

Supp.2d 581, 583 (S.D.W. Va. 2007) (Copenhaver, J.).

Therefore,

with Touhy in mind, our appeals court has held that:
if the non-party recipient of a subpoena is a
government agency, principles of sovereign immunity
apply. The decision whether to provide documents or
employee testimony in response to a third-party
subpoena is committed to agency discretion.
Accordingly, we review the government’s refusal to
comply with such a subpoena under the APA’s “arbitrary
and capricious” standard for final agency actions.

10

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COMSAT Corp. v. National Science Found., 190 F.3d 269, 278 (4th
Cir. 1999).
The COMSAT court elaborated on the role that Touhy
regulations and the federal rules play in a court’s evaluation of
the propriety of a non-party federal agency’s refusal to comply
with a subpoena:
[W]e examine whether the NSF’s refusal to comply with
the COMSAT subpoenas was an arbitrary and capricious
agency action taken in violation of the APA. We apply
the APA’s deferential standard of review in full
recognition of the fact that one of our sister circuits
has decided otherwise. In Exxon Shipping Co. v. U.S.
Dept. of Interior the Ninth Circuit held that non-party
federal agencies must produce evidence in response to
the subpoenas of private litigants, subject only to the
court’s discretionary right to limit burdensome
discovery under Rules 26 and 45 of the Federal Rules of
Civil Procedure. 34 F.3d 774, 778-779 (9th Cir. 1994).
We decline to follow this holding.
COMSTAT does not contest the underlying validity
of NSF’s Touhy regulations. Instead, COMSTAT maintains
that such housekeeping regulations do not “immunize” an
agency from the duty to comply with a federal subpoena.
We agree, but only in the following respect: it is
sovereign immunity, not housekeeping regulations, that
gives rise to the Government’s power to refuse
compliance with a subpoena. As we have acknowledged,
“subpoena proceedings fall within the protection of
sovereign immunity even though they are technically
against the federal employee and not against the
sovereign,” Boron Oil Co. v. Downie, 873 F.2d 67, 71
(4th Cir. 1989); thus, in the context of an agency’s
response to a third-party subpoena, “the proper method
for judicial review of the agency’s final decision
pursuant to its regulations is through the
Administrative Procedure Act.” United States v.
Williams, 170 F.3d 431, 434 (4th Cir. 1999). The APA
waives sovereign immunity and permits a federal court
to order a nonparty agency to comply with a subpoena if
the government has refused production in an arbitrary,

11

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capricious, or otherwise unlawful manner.
.

See id. . .

The Ninth Circuit’s Exxon decision abrogates the
doctrine of sovereign immunity to a significant degree.
Although the decision acknowledges the APA as the
source of the congressional waiver of sovereign
immunity permitting review of a non-party agency’s
refusal to comply with a subpoena, see 34 F.3d at 779
n.9, Exxon overlooks an important limitation upon this
waiver: courts may reverse an agency’s decision not to
comply only when the agency has acted unreasonably.
Id. at 277.
Therefore, under the law of this circuit, the court may
order a nonparty federal agency to comply with a subpoena only if
the refusal to do so was arbitrary, capricious, or otherwise
unlawful.

“An agency decision is arbitrary and capricious ‘if

the agency has relied on factors which Congress has not intended
it to consider, entirely failed to consider an important aspect
of the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the
product of agency expertise.’”

Spence v. NCI Info. Sys., Inc.,

530 F. Supp.2d 739, 743-44 (D. Md. 2008) (quoting Motor Vehicle
Mfrs. Ass’s of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 44 (1983)).
As noted above, per § 16.26(a)(1) of DOJ’s Touhy
regulations, one factor the agency must consider “is whether
disclosure is appropriate under the rules of procedure that
govern the issue at hand—in this instance, the Federal Rules of
12

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Civil Procedure . . . .”

Donald v. Outlaw, CAUSE NO.: 2:17-CV-

32-TLS-JPK, 2020 WL 2899689, at *11 (N.D. Ind. June 2, 2020).
Under Federal Rule of Civil Procedure 26, the court must limit
discovery when a party seeks discovery that is “unreasonably
cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less
expensive.”

Fed. R. Civ. P. 26(b)(2)(C).

Likewise, pursuant to

Federal Rule of Civil Procedure 45(d)(1), the 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.”

The Rule goes on to require a

court to quash or modify a subpoena if it “subjects a person to
undue burden.”

Fed. R. Civ. P. 45(d)(3)(A)(iv).

For the reasons stated by United States Attorney Stuart in
his letters of April 24, 2020, the court finds that DOJ’s refusal
to comply with the subpoenas herein was reasonable and did not
run afoul of its own regulations.

According to Stuart’s letters

and the Declarations of Heather Wehrle, compliance with the
parties’ subpoenas would impose an undue burden by taking
significant time and resources from DEA and would disrupt the
agency’s mission to prevent the diversion of controlled
substances.

The parties’ subpoenas at issue herein must also be

viewed against the backdrop of the ongoing MDL, as well as the
numerous lawsuits pending across the country.

13

With respect to

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the MDL, in remanding these cases, Judge Polster “did not believe
additional discovery from the DEA was necessary or appropriate
for a fair trial, applying the standards set out in Rules 26, 30,
and 45 of the Federal Rules of Civil Procedure.”

ECF 502-1.

Likewise, there was nothing improper in the government’s
consideration of the cumulative effects of similar discovery
requests in other opioid cases or the precedential effects of
complying with the subpoenas in this case.

As discussed earlier,

there are thousand of these cases pending in federal and state
courts across the country and DEA was not required to view the
subpoenas in this case in a vacuum.
Spence further argues that AFO-SI was not entitled
to consider the cumulative effects of similar discovery
requests in determining whether his demand was unduly
burdensome. This is a misstatement of the law. The
Fourth Circuit has recognized on multiple occasions
that federal agencies have a compelling interest in
“conserv[ing] governmental resources where the United
States is not a party to a suit, and to minimize
governmental involvement in controversial matters
unrelated to official business.” Boron Oil Co. v.
Downie, 873 F.2d 67, 70 (4th Cir. 1989); see also
COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269 (4th
Cir. 1999). To effectively further this interest,
federal agencies must be permitted to consider the
precedential effects of granting individual discovery
requests. Indeed, in both Boron Oil and COMSAT, the
Fourth Circuit considered the “potential cumulative
burden upon the agency” in evaluating the propriety of
a refusal to provide testimony under the APA.
Accordingly, we reject the argument that AFOSI was
required to limit its inquiry to whether Spence’s
particular request was unduly burdensome. As the case
law makes clear, the Air Force was entitled to consider
the cumulative effect of granting similar requests.

14

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Spence v. NCI Info. Sys., Inc., 530 F. Supp.2d 739, 745-46 (D.
Md. 2008).
As our appeals court has made clear, DEA’s determination in
this regard is neither arbitrary or capricious.
F.3d at 278.

See COMSAT, 190

“When an agency is not a party to an action, its

choice of whether or not to comply with a third-party subpoena is
essentially a policy decision about the best use of the agency’s
resources.”

Id.

Of the burden of compliance on the government

agency in that case, the COMSAT court noted:
As an agency official must, NSF’s counsel also
considered whether the public interest and the agency’s
taxpayer-funded mission would be furthered by
compliance.
NSF’s counsel answered this question in the
negative, and we cannot quarrel with his conclusion.
Compliance with the third-party subpoenas issued in
this single case, where the litigant sought a
tremendous number of agency documents and demanded the
presence of agency employees at depositions, would
measurably strain agency resources and divert NSF
personnel from their official duties. Multiply the
cost of compliance by the number of NSF grantees—almost
twenty thousand—who might become embroiled in similar
disputes, or by the limitless number of private
litigants who might seek to draw upon NSF’s expertise,
and the potential cumulative burden upon the agency
becomes alarmingly large.
Id. at 277-78; see also Boron Oil Co. v. Downie, 873 F.2d 67, 70
(4th Cir. 1989) (“The policy behind such prohibitions on the
testimony of agency employees is to conserve governmental
resources where the United States is not a party to a suit, and
to minimize governmental involvement in controversial matters

15

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unrelated to official business.”).

For this reason, courts have

routinely concluded that an agency’s refusal to comply with a
subpoena on the grounds of undue burden is neither arbitrary or
capricious.

See Cabral v. U.S. Dep’t of Justice, 587 F.3d 13,

23-24 (1st Cir. 2009) (“[T]he DOJ reasonably concluded that
further disclosures . . . would have been cumulative and unduly
burdensome.”); RLI Ins. Co. v. Nexus Services, Inc., Civil Action
No. 5:18-CV-00066, 2020 WL 1496466, at *3 (W.D. Va. Jan. 17,
2020) (neither arbitrary or capricious where one stated reason
for denial of discovery request was “compliance would be unduly
burdensome”); Sauer Inc. v. Lexington Ins. Agency, Inc., No.
5:13-CV-180-F, 2014 WL 5580954, at *6 (E.D.N.C. Oct. 31, 2014)
(“The Army Corps states that it had already expended significant
time and effort to comply with Defendant’s earlier document
subpoena, and believed that information to be sufficient to
comply with Defendant’s requests for information. . . .

Here,

the Army Corps considered the burden of complying with this
additional request from Defendant, and determined that not
complying with the deposition subpoena would conserve
governmental resources where the United States is not a party to
a suit, and to minimize governmental involvement in controversial
matters unrelated to official business.”) (internal quotation and
citation omitted); Spence v. NCI Info. Sys., Inc., 530 F. Supp.2d

16

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739, 745 (D. Md. 2008) (no violation of APA where discovery
request was denied “on grounds of undue burden”).
In Donald, the court quashed a subpoena issued to an FBI
agent finding that compliance with the terms of the subpoena
would impose an undue burden on the agency.
2899689, at *12.

See Donald, 2020 WL

In so doing, the court evaluated the subpoena

under both the Federal Rules of Civil Procedure and the APA.
id. at *6-7.

See

In finding that the FBI’s refusal to comply with

the subpoena was not arbitrary or capricious, the Donald court
specifically noted “the burden imposed by the subpoena requests,”
“the FBI resources that would be consumed by complying with the
requests,” plaintiff’s “access to the relevant information from
other sources,” and “the privileged nature of the materials
sought.”

Id. at *11.

As in Donald, the government in this case

demonstrated that it “considered the necessary factors as laid
out in the Code of Federal Regulations and found they obliged the
agency to deny the subpoena requests.”

Id.

Based upon the foregoing, the court concludes that DEA’s
refusal to comply with the subpoenas in this case was reasonable
and certainly not arbitrary or capricious.
IV.
For the reasons discussed above, DEA’s objections to
Discovery Rulings 5 and 6 are SUSTAINED.

17

Insofar as the parties’

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motions to compel were granted in those rulings, those motions
are hereby DENIED.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record and interested parties.
IT IS SO ORDERED this 5th day of August, 2020.
ENTER:

David A. Faber
Senior United States District Judge

18