UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
May 8, 2009
IN RE: ZYPREXA PRODUCTS LIABILITY LITIGATION
THE STATE OF CONNECTICUT PLAINTIFF,
ELI LILLY & CO., DEFENDANT.
The opinion of the court was delivered by: Roanne L. Mann, United States Magistrate Judge
MEMORANDUM AND ORDER
By letter dated March 26, 2009, plaintiff State of Connecticut ("the State") seeks an order compelling defendant Eli Lilly & Company ("Lilly") to produce documents in response to the State's Second Set of Requests for Production.*fn1 See 3/26/09 Pl. Letter, at 1. Lilly opposes the State's motion, contending that the State's requests are overly broad, untimely, and in violation of this Court's prior orders. See Letter from Anthony Vale, Counsel for Lilly, to the Court (Mar. 30, 2009) ("3/30/09 Def. Letter"), D.E. # 200, at 1-2. This Court agrees.
Accordingly, and for the reasons that follow, the State's motion is denied, except to the limited extent described below.
I. Requests Outside the Scope of CMO 1
When discovery commenced in this case, the Court, after extensive briefing and oral argument, entered Case Management Order ("CMO") 1, setting forth the parties' respective discovery obligations. See CMO 1, D.E. # 41. The State is correct that CMO 1 was not intended set absolute limits upon discovery. Nevertheless, CMO 1 did impose certain limitations, which some of the State's document demands blithely ignore.
Specifically, the State has requested (1) documents produced to the United States Department of Justice ("DOJ") and/or the United States Attorney's Office in connection with federal investigations into Lilly's marketing of Zyprexa; and (2) documents reflecting communications between Lilly and the Food and Drug Administration ("FDA") subsequent to the Zyprexa label change in October 2007. See State's Second Set of Requests for Production Nos. 15 & 16. The Court ruled on these issues in CMO 1, and the States' demands fall well outside the scope of what was permitted in the Court's prior ruling. See CMO 1, D.E. # 41, at 2.
Furthermore, with respect to documents relating to the DOJ investigation, this Court on other occasions denied similar requests, both in this case and in a related Zyprexa case brought by the State of West Virginia;*fn2 the State's pending request is not materially distinguishable from those requests. And with respect to communications between Lilly and the FDA following the Zyprexa label change in October 2007, this Court has repeatedly limited discovery on that subject to documents dated through October 2007 and/or relating to the October 2007 change.*fn3 Nevertheless, despite this Court's prior rulings, the State continues to relitigate these issues.
Accordingly, the State's requests for production numbered 15 and 16 are denied. The State, on pain of sanctions, shall refrain from making any further requests of this nature.
The State has also requested Zyprexa-related marketing materials distributed by Lilly to the United States Department of Health and Human Services ("HHS"). See State's Second Set of Requests for Production No. 4. In the State's view, "Lilly documents acknowledge that influencing one governmental or public payor program affects many others." Letter from Thomas M. Sobol, Counsel for the State, to the Court (Mar. 31, 2009) ("3/31/09 Pl. Letter"), D.E. # 204, Ex. A, at 3. Following that logic, however, the State would be entitled to discover not only marketing materials distributed to HHS, but marketing materials distributed to analogous agencies in all 50 states.
The State made a similar request, nearly one year ago, prior to the entry of CMO 1. See State's Proposed CMO 1 (May 9, 2008), D.E. # 18, at 4 (requesting "[a]ll documents concerning communications with any government offices . . . .") (emphasis added). As is apparent from CMO 1, the Court, having balanced the interests, rejected that request. See CMO 1, D.E # 41, at 1 ("Lilly shall expeditiously identify and produce documents . . . that reflect interactions with the P[harmacy] &T[herapeutics] Committee and/or the State's Medicaid agency."). Moreover, the State has already obtained exhaustive discovery on this issue, including call notes and other documents in the possession of Lilly sales representatives, depositions of those representatives, P&T Committee related discovery, and marketing materials directed towards the State -- all on top of the millions of pages of documents already produced by Lilly in connection with the Zyprexa MDL.
This case concerns Lilly's alleged illegal marketing activities directed towards agencies of the State of Connecticut, not agencies of the United States. Accordingly, the State's request for production numbered 4 is denied.
II. Requests Related to Lilly Sales Representatives
Two of the State's requests seek documents relating to Lilly sales representatives. See Second Set of Requests for Production Nos. 6 & 10. Like the requests discussed above, these requests largely exceed the scope of that permitted by this Court's prior rulings.
Discovery of Lilly sales representatives has been limited to call notes, depositions, and Zyprexa-related documents in the possession of the sales representatives noticed for deposition. See Memorandum & Order (Jan. 23, 2009), D.E. # 166, at 4-7; Minute Entry & Order (Dec. 22, 2008), D.E. # 154, at 3; Memorandum & Order (Dec. 9, 2008), D.E. # 140, at 1-2; CMO 1, D.E. # 41, at 1-2. To the extent that, as the State claims, Lilly "never searched the files of the fourteen sales representatives originally selected by the State for deposition in this case[,]"*fn4 3/31/09 Pl. Letter, Ex. A, at 4, Lilly is directed to do so forthwith and produce responsive documents. Other than those documents, additional documentary discovery relating to Lilly sales representatives is not warranted at this late date. See Fed. R. Civ. P. 26(b)(2)(C)(i)-(ii) (directing courts to limit the frequency or extent of discovery where, as here, the discovery sought is unreasonably cumulative or duplicative and could have been obtained at an earlier date). Accordingly, the State's requests for production numbered 6 and 10 are denied, except to the limited extent indicated above.
III. Remaining Requests
The remaining requests in the State's Second Set of Requests for Production are duplicative of, and in some cases literally identical to, requests made in the State's First Set of Requests for Production,*fn5 which was served on June 27, 2008, nearly one year ago. Compare Second Set of Requests for Production 1,*fn6 2, 3, 5, 8, 9-13,*fn7 14, 16 and 17, with First Set of Requests for Production 1, 5, 6, 8, 9, 10, 16, 20, and 22. Lilly represents that, in an attempt to compromise, it asked the State to narrow those requests, but that the State refused to do so. See 3/30/09 Def. Letter, at 2. The State counters that it provided Lilly with examples of responsive documents, and characterizes the requests in its Second Set of Requests for Production as "slightly broadened" yet "targeted," see 3/26/09 Pl. Letter, at 3 (emphasis added) -- a characterization that is belied by the exhaustive scope of those requests.*fn8
The State had ample opportunity to review Lilly's production in response to its First Set of Requests for Production, but instead waited until near the end of fact discovery to raise its objections with both Lilly and the Court. Notably, the State's Second Set of Requests for Production expressly identifies few, if any, categories of documents that Lilly failed to produce in response to the State's First Set of Requests for Production. To be sure, the State, in its reply to Lilly's letter in opposition, has now narrowed a handful of requests -- in "proposed orders" relegated to a column in an attached chart, which identifies specific unproduced documents that the State believes are responsive.*fn9 See 3/31/09 Pl. Letter, Ex. A. As the State had not previously served Lilly with those narrowed requests, it did not satisfy its obligation to meet and confer in good faith with opposing counsel on this issue. Furthermore, as the Court does not allow sur-replies, see Order (Mar. 9, 2009), D.E. # 177, Lilly has not had an opportunity to be heard on those issues.
The time for making such broad discovery demands has long since passed. If the State was dissatisfied with Lilly's response to its First Set of Requests for Production, it should have sought supplementation from Lilly (in the form of targeted demands) or relief from this Court at an earlier date.*fn10 See Fed. R. Civ. P. 26(b)(2)(C)(ii) ("[T]he court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rules if it determines that . . . the party seeking discovery has had ample opportunity to obtain the information by discovery in the action[.]"); FLOORgraphics, Inc. v. News Am. Mktg. In-Store Servs., Inc., Civil Action No. 04-3500 (AET), 2007 WL 1613217, at *3 (D.N.J. June 1, 2007) (granting defendants' motion for a protective order where the subpoena issued by plaintiff was duplicative, outside the scope of discovery permitted by court, and issued near the end of fact discovery); Maldonado v. Invensys Bldg. Sys., Inc., No. 01-C-50433, 2004 WL 1080191, at *2 (N.D. Ill. May 13, 2004) (denying plaintiff's request for certain documents where defendant had previously responded to a similar request, and plaintiff had "never raised any issue regarding [defendant's] production" despite ample opportunity to do so); see also Rafano v. Patchogue-Medford Sch. Dist., No. 06-CV-5367 (JFB) (ARL), 2009 WL 789440, at *12 (E.D.N.Y. Mar. 20, 2009) (affirming magistrate judge's denial of plaintiff's request to reopen discovery where plaintiff had over a year to conduct discovery, was granted multiple extensions of the discovery period, and failed to explain why the discovery at issue was not sought at an earlier date); Brown v. James, Civil No. 4:CV-03-0631, 2009 WL 743321, at *4 (M.D. Pa. Mar. 18, 2009) (denying pro se plaintiff's request for certain documents where plaintiff "had ample opportunity to obtain th[e] information during the long period of discovery that ha[d] ensued in th[e] action."). To quote the court in Maldonado: "This case is in the twilight of discovery. It is now time for the sun to set." 2004 WL 1080191, at *1.
Accordingly, State's remaining requests for production are denied.
For all of the foregoing reasons, the State's motion for a compulsion order is denied, except that Lilly shall forthwith produce the custodial files of those sales representatives that have been or will be produced for deposition.
ROANNE L. MANN UNITED STATES MAGISTRATE JUDGE