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Stephen Wendell & Lisa Wendell, As Successors In Interest v. Johnson & Johnson

April 22, 2013


The opinion of the court was delivered by: Jacqueline Scott Corley United States Magistrate Judge

United States District Court Northern District of California


Presently before the Court are the following two discovery disputes: (1) whether Defendant

Teva Pharmaceuticals USA, Inc. ("Teva") must produce documents and a Rule 30(b)(6) witness 22 concerning Teva's pharmacovigilance beyond 2004, and (2) whether Teva and Par Pharmaceuticals, 23

Inc. ("Par") must respond to Plaintiffs' request for admissions. The Court held a hearing on the 24 parties' disputes on March 7, 2013, and the parties subsequently filed a joint memorandum of law on 25

Plaintiffs' motion to compel discovery. For the reasons stated below, the Court finds that Teva must 26 produce the requested discovery regarding pharmacovigilance beyond 2004. The Court further finds 27 that Teva and Par are not required to respond to the request for admissions because they are untimely. 28

3 privileged matter that is relevant to any party's claim or defense. . . . Relevant information need not 4 be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of 5 admissible evidence." See Fed. R. Civ. P. 26(b)(1). The Court has broad discretion to determine 6 relevancy for discovery purposes. See Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 7

(9th Cir. 2005). 8


No. 9, which requests: 11

materials including all Medwatch forms, all Adverse Drug Experience (ADE) reports,

including, but not limited to, any and all corresponding documents, materials, notes,

written and underlying data, including electronic data, correspondence, follow up

communications, investigations and memoranda relating to every and all adverse experiences and/or events concerning the ingestion and use of 6-MP, and/or its

chemical bioequivalent, reported to and/or known by Defendant or of which Defendant was or is otherwise aware.


Under the Federal Rules of Civil Procedure a party "may obtain discovery regarding any non-

I. Plaintiffs' Request for Production

Plaintiffs move to compel responses to Plaintiffs' First Requests for Production of Documents,

Any and all Post Market reporting and/or Post Marketing Surveillance documents and

United States District Court Northern District of California

(Dkt. No. 280-3 at 3-4.) Teva asserts that it will produce documents, and provide a Rule 30(b)(6) 18 witness to testify regarding those documents, only for the period between July 1, 2003 to July 2004, 19 when Maxx Wendell took his last dose of Teva's brand-name product and began taking Par's generic 20 version. Teva contends that since this is a products liability action, its liability ends once Maxx 21 ceased using its product; thus, any discovery into its actions after July 2004 is irrelevant. Plaintiffs 22 argue that Teva should be compelled to produce the requested discovery covering the time period 23 from July 1, 2003 to July 2007, when Maxx was diagnosed with hepatosplenic T-cell lymphoma 24

("HSTCL"). Plaintiffs reason that they need this discovery in the event the District Court decides in 25 their favor regarding the scope of Teva's liability-that is, if the District Court finds that Teva can be 26 liable for its negligence in failing to warn of the drug's harmful effects even though Maxx was no 27 longer using Teva's product. The Court agrees with Plaintiffs. 28

2 producing the requested discovery. In fact, at the hearing, Teva asserted that, at least as to the adverse 3 events reports, it would not be burdensome to produce them. (Dkt. No. 279 at 15:19-21 ("[T]hose are 4 the kinds of things that they -- that wouldn't be -- they wouldn't want to do it, they wouldn't be happy 5 about it, but they could do it.").) Teva's challenge to Plaintiffs' discovery requests relate solely to 6 relevance. Rule 26(b)(2) instructs courts that discovery may be limited if a court determines that "the 7 burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs 8 of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in 9 the litigation, and the importance of the proposed discovery involving the issues." Fed R. Civ. P. 10

26(b)(2)(C)(iii) (emphasis added). Given that Teva has not identified any burden in producing the 11 requested discovery, Plaintiffs' burden in demonstrating that the requested discovery is ...

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