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In re Genentech Herceptin Trastuzumab Marketing and Sales Practices Litigation

United States District Court, N.D. Oklahoma

September 12, 2017

IN RE GENENTECH HERCEPTIN TRASTUZUMAB MARKETING AND SALES PRACTICES LITIGATION

          OPINION AND ORDER

          TERENCE KERN, United States District Judge

         Before the Court is Plaintiffs' Motion to Compel Non-Party Patheon Manufacturing Services, LLC to Comply With Subpoena Duces Tecum (Doc. 243).

         I. Background

         Plaintiffs served Patheon Manufacturing Services, LLC (“Patheon”) with a Subpoena Duces Tecum (“Subpoena”) on September 2, 2016. On August 26, 2016, prior to Plaintiffs serving the Subpoena, United States Magistrate Judge Lane Wilson told Plaintiffs to “go ahead and serve” certain third-party subpoenas but that if Defendant sought to quash the subpoenas, Plaintiffs should “notify the third parties that they shouldn't actually produce any documents until there's been a ruling from the court.” (Doc. 119 at 16:11-17:6.)

         On September 7, 2016, Plaintiffs informed Patheon via letter of Defendant's objection to the subpoenas and instructed Patheon not to produce any documents until the court ruled on Genentech's motion to quash. Patheon contends it interpreted this letter to mean that it need not produce the documents or file written objections within fourteen days of after service of the Subpoena, as ordinarily required by Federal Rule of Civil Procedure 45(d)(2)(B) (“Rule 45(d)(2)(B)”). Plaintiffs contend their letter to Patheon did not “toll” the objection period and merely instructed Patheon to refrain from production at that time. Other third parties that received the same September 7, 2016 letter from Plaintiffs served timely objections to the subpoenas.

         On May 8, 2017, the Court ruled on pending discovery motions, including Defendant's Motion for Protective Order related to the Subpoena issued to Patheon (“5/8 Order”). The Court denied Defendant's Motion for Protective Order and held that the requested documents from Patheon were relevant to impossibility preemption, and were not overly broad or burdensome with the addition of language limiting production to documents relating to Herceptin. (Doc. 207 at 16.)

         On May 17, 2017, after the Court unsealed the May 8, 2017 Order, Plaintiffs sent a letter by certified mail to Patheon's service agent informing it that the Court denied Defendant's Motion for Protective Order and requesting that it produce the required documents by June 10, 2017. On June 20, 2017, Plaintiffs' counsel received a call from Patheon's outside counsel, and Plaintiffs provided Patheon's counsel with the Court's 5/8 Order and other relevant documents. On June 26, 2017, Patheon stated its position via letter that the fourteen-day objection period “began running on the date Patheon received formal notice of the Court's denial of the Motion for a Protective Order.” (Doc 243-2.)

         On July 21, 2017, Patheon responded to the Subpoena by: (1) producing 987 pages in response to Requests One through Three, with portions redacted; and (2) objecting to Request Four on grounds that the requested documents are readily obtainable from Defendant. On August 15, 2017, Plaintiffs filed the instant Motion to Compel, requesting that the Court compel Patheon to: (1) produce unredacted versions of all documents previously produced; and (2) produce documents in response to Request Four.

         II. Objection to Request Four

         The Court finds Patheon's objection to Request Four to be untimely and therefore waived. Neither Judge Wilson's statement at the August 2016 hearing nor Plaintiffs' letter to Patheon indicated that there would be a tolling of the Rule 45(d)(2)(B) objection period until the Court ruled on Defendant's Motion for Protective Order. Other third parties timely submitted objections.

         Further, Patheon's objections were untimely even under its own deadline set forth in Patheon's letter to Plaintiffs dated June 26, 2017. The Court finds that such letter, which used the phrase “began running, ” intended June 20, 2017 as the trigger date for its fourteen-day clock, not some date in the future. The Court finds Patheon's subsequent assertion that its objection period began to run on July 14, 2017, when it first received the Court's Order from its service agent, to be inconsistent with this prior communication. Therefore, the Court finds Patheon failed to object to Request Four in a timely manner.

         Even assuming Patheon's objection to Request Four was timely, it would be overruled. This Court has already determined that the Subpoena was not overly broad or burdensome. The Court further finds that the discovery is not unreasonably cumulative with requests to Defendant or necessarily obtainable from Defendant. See Fed. R. Civ. P. 26(b)(2)(c)(I). Plaintiffs have made an adequate showing that Defendant's production may not include all responsive communications with Patheon due in part to Defendant's automatic e-mail deletion policy. According to Plaintiffs, Defendant has produced only nineteen emails that appear to be communications with Patheon. Due to the relevance of these communications and the role Patheon played in production of the drug product, it is not unreasonable for Plaintiffs to make duplicate requests in order to maximize Plaintiffs' opportunity to receive all responsive communications. Request Four is properly limited in scope to two topics, and the Court finds the seven-year duration of Defendant and Patheon's relationship to be a reasonable temporal limitation in this case.

         The Court further observes that Patheon is not a distant third party to this litigation; Patheon manufactures the Herceptin drug product for Genentech. Patheon and Defendant have been collaborating on redactions to documents and other discovery issues. The Court therefore has less concern about imposing an undue burden on a third party than it might in other cases. See Phillip M. Adams & Assoc., L.L.C. v. Fujitsu Ltd., No. 1:05-CV-64 TS, 2010 WL 1064429, *4 (D. Utah Mar. 18, 2010) (recognizing that “[w]hat constitutes an undue burden in a given instance is a case specific inquiry, ” and the “relationship of the nonparty to the parties” is one factor to be considered).

         III. ...


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