United States ex rel. Long v. Janssen Biotech, Inc.

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THE UNTED STATES OF AMERICA et al. ex rel. JULIE LONG, Plaintiffs, v. JANSSEN BIOTECH, INC., Defendant.

Civil Action No. 16-12182-FDS

United States District Court, D. Massachusetts

March 9, 2023

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO COMPEL AND FOR A PROTECTIVE ORDER (#328); DEFENDANT'S MOTION FOR A PROTECTIVE ORDER VACATING RELATOR'S FED. R CIV. P. 30(B)(6) DEPOSITION NOTICE (#333); AND RELATOR'S MOTION TO COMPEL COMPLIANCE WITH THE COURT'S ORDERS AND TO COMPEL DISCOVERY (#345).

M Page Kelley, Chief United States Magistrate Judge

I. Introduction.

This is a qui tam action alleging that a pharmaceutical company unlawfully provided free business advisory services to physicians who prescribed its medications, in violation of the Anti-Kickback Statute (“AKS”), 42 U.S.C. § 1320a-7b(b), and caused physicians to submit false claims for reimbursement to Medicare in violation of the False Claims Act, 31 U.S.C. § 3729(a). Relator Julie Long alleges that Janssen Biotech, a company that manufactures and sells two infusible drugs, Remicade and Simponi ARIA, improperly employed teams of practice advisors, including relator, and hired outside consultants to provide services such as presentations, advice, and customized analyses to doctors to assist them in running profitable infusion businesses (“in-office infusion suites,” or “IOIs.”).^[1]

This court held an oral argument on the three motions at issue here on January 23, 2023. (#364; #367 (transcript of hearing).) Five days after the argument, on January 27, 2023, Janssen filed a notice stating that it withdrew that part of its motion to compel (#328) that asked the court to order relator immediately to select 12 additional custodians. (#369.) In addition, Janssen made other proposals that it contended resolved many of the discovery disputes. Id. On the same date, relator filed a letter stating that while she did not object to Janssen's withdrawing part of its motion to compel, she objected to Janssen's proposals regarding providing other discovery, noting that she had asked Janssen to confer regarding the proposals but Janssen had refused, and disputing that Janssen's proposals resolved outstanding discovery disputes. (#370 at 1.) The court asked the parties to file brief memoranda setting out what disputes remain, which the parties did. (#373 (relator); #374 (defendant).)

II. Chief Judge Saylor's Order.

Since several of the disputes involve the interpretation of a previous order issued by Chief Judge Saylor, the court will set out the ruling here. On September 9, 2022, Chief Judge Saylor issued an order concerning appeals of three of this court's discovery orders (##282, 283, 284), in which he generally affirmed the orders, but reversed on one point. (#320 at 3.) In one of the orders this court had expanded the date range for discovery, ordering Janssen to update its prior document productions and interrogatory responses about the IOI services at issue in this case from February 2016, the prior cutoff date, to February 2020. (#282 at 12-14.) Chief Judge Saylor found that to the extent that this court's order “generally expanded the range of dates of documents that must be searched and produced from February 2016 (the date when relator's employment ended) to February 2020, that order exceeded the reasonable requirements of the first phase of discovery” because the first phase was limited to the IOI services with which relator had experience, and “[i]f relator was not at the company, she cannot have been a witness to practices during that time.” (#320 at 3.) He ordered that “requests for production of documents during the first phase of discovery shall be generally limited to documents created through February 2016,” with two exceptions. Id. One is for “documents created between February 2016 and February 2020, other than routine personnel, payroll or tax documents, that mention relator Julie Long or her specific allegations or claims.” Id. at 3-4. The other is for “documents created between February 2016 and February 2020 that concern the termination or phase-out of any of the specific practices or programs that relator Julie Long participated in, or personally observed, while employed by Janssen, or the potential legality or illegality of any such practice or program.” Id. at 4.

III. Legal Standard.

“Parties 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). The party seeking to compel information in discovery has the burden of showing its relevance. Johansen v. Liberty Mut. Grp., Inc., No. 15-cv-12920-ADB, 2017 WL 6045419, at *1 (D. Mass. Dec. 6, 2017) (citing TG Plastics Trading, Co. v. Toray Plastics, No. 09-cv-336S, 2010 WL 936221, at *2 (D.R.I. Mar. 12, 2010)). Once the moving party makes a showing of relevance, the opposing party bears the burden of showing that the requested discovery is improper. See Aronstein v. Mass. Mut. Life Ins. Co., No. 15-cv-12864-MGM, 2017 WL 2818993, at *2 (D. Mass. June 29, 2017).

“District courts exercise broad discretion to manage discovery matters” and “to tailor discovery narrowly.” Heidelberg Americas, Inc. v. Tokyo Kikai Seisakusho, Ltd., 333 F.3d 38, 41 (1st Cir. 2003); Primarque Prod. Co. v. Williams W. & Witt's Prod. Co., No. 15-cv-30067-TSH, 2016 WL 6090715, at *2 (D. Mass. Oct. 18, 2016). Proportionality is determined 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.” Fed.R.Civ.P. 26(b)(1).

Federal Rule of Civil Procedure 26(c) allows a party to seek and obtain a protective order based on a showing of good cause. Fed.R.Civ.P. 26(c). The court may “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . forbidding the inquiry into certain matters, or limiting the scope of or disclosure or discovery to certain matters.” Id. Moreover, the court should limit discovery where it is “unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.” Fed.R.Civ.P. 26(b)(2); see IDS Prop. Cas. Ins. Co. v. Gov't Emp. Ins. Co., Inc., 985 F.3d 41, 50 (1st Cir. 2021) (district courts possess “broad discretion” in “designing] protective orders”); see, e.g., Braga v. Hodgson, 605 F.3d 58, 59-60 (1st Cir. 2010) (affirming protective order precluding deposition and recognizing district court's “broad discretion in ruling on pre-trial management matters” and First Circuit's review of “district court's denial of discovery for abuse of its considerable discretion”).

IV. The Present Motions.

A. The Parties' Positions After Janssen's Proposal Regarding Resolving Certain Issues.

In Janssen's memorandum setting out its view of the remaining discovery disputes, Janssen proposed:

to (i) produce ESI from all the non-legal personnel Janssen has identified as having significant involvement, (ii) identify and produce non-privileged ESI from non-legal personnel that had significant involvement from 2016 to 2020 in the termination of any of the programs or the assessment of the legality of the programs, (iii) allow Relator to review all of those documents and then select (without court intervention) two additional custodians (if there are any) that she believes had significant involvement who were not identified by Janssen, and (iv) if, after all that, Relator identifies additional people whose documents she believes should be produced, Janssen will meet and confer with Relator in good faith at that time.

(#374 at 2.)

Janssen concludes that its proposals resolve all but three issues raised in the parties' discovery motions. Id. at 3. Those remaining issues are: (1) Janssen's request for a protective order related to collecting and producing documents stored at outside counsel's offices (#329); (2) its request for a protective order related to the production of government communications, id.; and (3) relator's motion to compel production of additional Xcenda documents (#346). (#374 at 3-5.)

Relator sees things differently. First, relator objected to Janssen's proposals for resolving discovery disputes because Janssen still does not agree to disclose the persons on whom Janssen may rely to support its affirmative defenses, nor has Janssen unequivocally identified “the persons who had significant involvement in the relevant facets of the alleged kickback scheme.” (#370 at 1.) Further, Janssen has never “provided sworn, complete, responsive, and clear answers to Plaintiff's interrogatories seeking identification of important fact witnesses.” Id. at 2. Finally, Janssen is jumping the gun by announcing that it will make “a more limited production” of documents of non-ESI custodians, where the parties have never conferred about an appropriate process for searching and producing documents “from the current and former employees who had significant involvement and are not selected as one of the permitted twelve custodians,” which this court previously ordered Janssen to do. Id. at 2; (#282 at 15.) In short, relator asks that the parties “complete the witness disclosure process - a process that Janssen is clearly continuing to attempt to evade,” before Janssen unilaterally, without conferring with relator, dictates the resolution of the outstanding motions. (#370 at 2.)

Realtor argues at length concerning what she perceives to be the outstanding issues, see #373. The court addresses these issues below.

B Ja...