IN RE: AVANDIA MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION This Document Relates To: ALL THIRD PARTY PAYOR ACTIONS MDL No. 1871, No. 07-MD-1871 United States District Court, E.D. Pennsylvania Signed July 12, 2021 Merenstein, Bruce P., Special Master THE SPECIAL DISCOVERY MASTER'S REPORT AND RECOMMENDATION AS TO THE THIRD PARTY PAYORS' MOTION TO COMPEL COMPLIANCE WITH SUBPOENA TO CRIVELLA TECHNOLOGIES LIMITED *1 This Report and Recommendation is issued pursuant to Pre-trial Order No. 8 (Doc. No. 136), Pre-trial Order No. 28 (Doc. No. 222), and Pre-trial Order No. 147 (Doc. No. 1935), and the Court's May 18, 2021 Order (Doc. No. 5353) referring the Third Party Payors' (“TPPs”) motion to compel non-party Crivella Technologies Limited to comply with the TPPs' subpoena (Doc. No. 5342). After review of the motion, the response, and the reply, and considering the evidence presented at a June 24, 2021 hearing, the Special Discovery Master recommends that the Court grant the motion to compel, for the reasons set forth in this Report and Recommendation. The Court should order Crivella Technologies to produce to the TPPs the 17,836,460 pages of documents previously contained in Crivella Technologies' document repository, as well as the data associated with those pages (the “Avandia MDL documents”). BACKGROUND FACTS I. The Formation of the MDL and PSC, and the Initial Document Repository Agreement (2007-11). The Avandia MDL was formed by the Judicial Panel on Multidistrict Litigation in October 2007. Although the bulk of the claims in the MDL's earliest years were personal injury claims brought by individuals allegedly harmed from taking the diabetes drug Avandia, a number of TPP actions were filed in 2009, 2010, and 2011, including the two cases at issue here, alleging that GSK misrepresented or concealed Avandia's risks. On April 9, 2008, the Court issued Pre-trial Order No. 1 (Doc. No. 108), appointing fourteen plaintiffs' counsel, including Vance Andrus, Bryan Aylstock, and Joseph Zonies, to the Plaintiffs Steering Committee (“PSC”). The PSC then entered into an agreement with Areté Legal, a predecessor to Crivella Technologies, in July 2008, under which Areté Legal would provide “consulting, work products and technology services” to the PSC for the Avandia litigation.[1] In the agreement, Areté Legal agreed to “provide for an online searchable document repository and review system and legal work team management and collaboration system collectively known as the Litigation Management Knowledge Kiosk.”[2] The agreement further explained that “[i]t is anticipated that the PSC will utilize the litigation management systems to serve as the primary document repository and review system for all Avandia productions.”[3] *2 In addition to the document repository and review platform, Areté Legal agreed to “produce analytical reports and to provide insight into the case document collection and document management methods,” as well as to “provide for the automated linguistic analysis of produced documents utilizing its proprietary document analyzers.”[4] Arthur Crivella, the principal, president, or CEO of the various Crivella-related entities (including Areté Legal),[5] explained at the evidentiary hearing that “[w]hat we do is we have expertise in computational corpus linguistics, and we have designed systems that evaluate the language that people use in the course of business, and we build those language rules into computer programs, and then those computer programs effectively replace the human review.”[6] The PSC-Areté Legal agreement also included general terms and conditions governing the parties' relationship. The terms and conditions divided the material in Areté Legal's possession into two categories: Case Materials and Production Pieces.[7] Case Materials included all “materials provided or forwarded by, or on behalf of, [the PSC] to Areté Legal or communicated to Areté Legal by, or on behalf of, [the PSC].”[8] Production Pieces, on the other hand, were materials that Areté Legal produced to help the PSC “organize, analyze, visualize and present material.”[9] As Mr. Crivella explained, “case materials is everything [the customer] gave to us. If you gave it to us, then it's case materials. If you didn't give it to us, effectively it's not case materials, okay, it's production pieces.”[10] Case Materials are thus effectively synonymous with the Avandia MDL documents that are the subject of the TPPs' motion to compel. The agreement provided that the PSC would retain ownership of all Case Materials, while Areté Legal would own all Production Pieces derived or created from Case Materials.[11] The agreement also required Areté Legal, upon termination, to “deliver to [the PSC], at [PSC's] cost and expense, a current machine-readable copy of all Case Materials in their native format; provided, however, that Meta-Data (i.e. document descriptions, document annotations, document codes, document groups and discussion groups) included in the Case Materials shall be returned in ASCII delimited format.”[12] II. The New PSC Appointments and Termination of the Initial Document Repository Agreement (2011-14). On March 2, 2011, after many of the Avandia personal injury cases had been resolved, the Court entered Pre-trial Order No. 130 (Doc. No. 1221), appointing nine individuals to the PSC, including Paul Kiesel, and keeping five existing members on the PSC in an advisory capacity, including Vance Andrus, Bryan Aylstock, and Joseph Zonies. About a year later, on February 16, 2012, the Court entered Pre-trial Order No. 154 (Doc. No. 2131), effectively disbanding the PSC and appointing Paul Kiesel as Plaintiffs' Coordinating Counsel. Mr. Kiesel was given responsibility “for the maintenance of all documents produced by defendants or third parties in response to non-case specific discovery requests and/or subpoenas,” as well as “any other relevant documents, and the trial package created by the [PSC].” Mr. Kiesel was charged with ensuring that other plaintiffs' counsel with cases remaining in the MDL had “access to the documents, expert reports, trial materials, and other resources previously obtained or developed that are needed to litigate their cases.” He also was “authorized to pay the storage provider for storage of the documents” produced in the MDL. At this time, the PSC was paying about $41,000 per month to Crivella West (a successor to Areté Legal) for storage and access to approximately 730 GB of materials, though Mr. Kiesel and Crivella West agreed in April 2012 to reduce the monthly fee to $10,000.[13] *3 Two years later, in March 2014, Mr. Kiesel apparently contacted Crivella West to ask it to “remove all user access and thereafter to deactivate this system.”[14] Bryan Aylstock appears to have been blind copied on the Crivella West email regarding Mr. Kiesel's request, and Mr. Aylstock responded, “I presume that you will be throwing everything on a harddrive. Can we please get a copy of that?”[15] In subsequent emails on the same day, Crivella West's Mary Geever told Mr. Aylstock that Crivella West was “working through deactivation with Paul Kiesel and have not yet finalized how this will be accomplished,” and then obtained Mr. Kiesel's permission to provide a copy of the Avandia MDL documents to Mr. Aylstock.[16] In an email twelve days later, a Crivella West employee informed other employees (identified only by a group email address of “ITP Tech Distribution”), “I have a drive hooked to this Machine[.] We are going to off load Avandia and I am running copy jobs to this drive.”[17] Around this same time, the Court certified for interlocutory appeal its Order denying in substantial part GSK's motion to dismiss the TPPs' complaints,[18] although any connection between the appeal and the discussion in these emails regarding the Avandia MDL documents is not clear from the record. The MDL docket reflects that little, if any, activity appeared to occur in the TPPs' cases from this time until the Third Circuit affirmed the Court's ruling in late 2015.[19] The March-April 2014 emails discussed above are the only documents the parties presented in connection with the TPPs' motion to compel or the evidentiary hearing that address the issue whether Crivella West sent copies of the Avandia MDL documents to Mr. Aylstock and Mr. Kiesel in 2014. There are no additional emails, invoices, payment records, cover letters, tracking records, or delivery confirmations in the record that either confirm or refute the parties' contentions on this issue.[20] At the evidentiary hearing, Mr. Aylstock and Mr. Kiesel both testified that they had no recollection of receiving a hard drive with a copy of the Avandia MDL documents from Crivella Technologies (or a related entity) in 2014.[21] They both also testified that they (and their staff) searched their offices and records, and could find no evidence that they had received a hard drive containing the Avandia MDL documents in 2014 or at any other time.[22] Mr. Aylstock also testified that he did not have any record of a payment to Crivella Technologies for a hard drive containing the documents.[23] Arthur Crivella, on the other hand, testified that “Crivella sent the case materials ... back to Mr. Kiesel and Mr. Aylstock in 2014.”[24] *4 In a declaration that Crivella Technologies submitted with its response to the TPPs' motion to compel, Mr. Crivella contended that the Avandia MDL documents were sent to Mr. Aylstock and Mr. Kiesel in April 2014, but the declaration did not mention any other former PSC members.[25] At the evidentiary hearing, however, Mr. Crivella testified that a hard drive containing the Avandia MDL documents also was sent at the same time to Joseph Zonies.[26] As a result of this testimony, the TPPs called Mr. Zonies as a rebuttal witness at the evidentiary hearing, and he testified, like Mr. Aylstock and Mr. Kiesel, that he had no recollection or record of having received a hard drive containing the Avandia MDL documents from Crivella Technologies (or a related entity).[27] Around this same time (March-April 2014), the PSC agreement was terminated.[28] III. The TPP Cases and the Second Document Repository Agreement (2015-18). As noted, late in 2015, the Third Circuit affirmed the Court's Order denying in substantial part GSK's motion to dismiss the TPPs' complaints. Shortly thereafter, the Court entered Pre-trial Order No. 244 (Doc. No. 4803), consolidating all TPP actions and appointing interim lead counsel and an executive committee for the putative TPP class. A few months later, in May 2016, the TPPs entered into a new agreement with another Crivella-related entity, Knowledge Kiosk Solutions Limited.[29] The 2016 agreement contained similar general terms and conditions as the original PSC-Areté Legal agreement, though the new agreement referred to the materials produced in the MDL as Content, rather than Case Materials.[30] No direct evidence was offered at the evidentiary hearing that, substantively, the Content to which the TPPs had access was (or was not) the same as the Case Materials to which the PSC previously had access. Mr. Crivella acknowledged, however, that if the TPPs were able to print out Bates-stamped materials from the Knowledge Kiosk system for use at depositions, in summary judgment briefing, and on appeal to the Third Circuit, the Content available to the TPPs was “probably” the same as the Case Materials previously available to the PSC.[31] In October 2017, Knowledge Kiosk Solutions notified the TPPs that their account was “seriously past due” as a result of several unpaid invoices.[32] The notice threatened to suspend the TPPs' account and their access to the document repository.[33] A couple months later, the Court granted GSK summary judgment on the TPPs' claims.[34] As a result of the Court's decision, the TPPs informed Knowledge Kiosk Solutions in a January 9, 2018 email that they wanted to discuss “what can be done to essentially mothball the documents and data,” and “put things in hiatus for as long as necessary to resolve the appeal.”[35] Mary Geever responded that “we can discuss” the TPPs' request,[36] but no evidence was offered at the evidentiary hearing as to precisely what happened to the documents at that time. The TPP-Knowledge Kiosk Solutions agreement was terminated around that time.[37] IV. The Revival of the TPP Cases and Discussions Regarding a New Document Repository Agreement (2019-21). In late 2019, the Third Circuit reversed the Court's entry of summary judgment for GSK, thereby reviving the TPPs' cases.[38] The TPPs then contacted Crivella Technologies to inquire about “the Avandia MDL database.”[39] *5 Mary Geever responded that “[w]e do have the system for this litigation and would be happy to discuss reactivating it.”[40] Ms. Geever noted that at “the time the system was deactivated there was an outstanding balance of $18,890.”[41] The TPPs responded that “[w]e would like to restart access to the database in a few months, at which time we will of course pay the outstanding balance.”[42] A few days later, Ms. Geever responded, listing certain items that she wanted to bring to the TPPs' attention “[w]ith respect to the Avandia system,” and noting that she wanted “to have everything in place and ready to go when you are ready to begin working.”[43] There are no further communications in the record following Ms. Geever's March 27, 2020 email until a December 29, 2020 email from Ms. Geever to the TPPs, referring to a TPP-Crivella meeting the prior week and attaching a proposal for services.[44] The December 29, 2020 proposal, which was identified as coming from Arthur Crivella, noted that Crivella Technologies had “a long and extensive involvement in and knowledge of the Avandia litigation.”[45] It summarized Crivella Technologies' (or its predecessors') prior work and offered a number of services to the TPPs, including “use of our Knowledge Kiosk database review platform and AI technology.”[46] The proposal indicated that, for pricing purposes, certain “key assumptions apply,” including that the “current size of the produced document collection and related work product is 17,836,460 pages,” and that “[r]estoration of the data will be required.”[47] The proposal included data restoration costs of $48,352, based on a rate of $50 per gigabyte,[48] and monthly fees for analytic and document management services of $50,905, based on a rate of $2,854 per million pages for 17,836,460 pages of documents.[49] Back in March 2020, Mary Geever had sent the TPPs a “services and pricing matrix” that included much lower rates, including $2,185 per terabyte per month for the services the TPPs had previously obtained from Crivella Technologies, plus $290 per user per month.[50] The monthly fee in the December 2020 proposal also was substantially higher than the monthly fee the TPPs paid under the 2016 agreement.[51] About a week later, the TPPs responded to the proposal, indicating that they “were astonished” at the proposed fees, and expressing their belief that there was no “path forward to using Crivella as our document platform vendor” in the Avandia litigation.[52] The TPPs then asked for a call with Crivella Technologies “to discuss the transfer of the documents to our proposed vendor, Everlaw.”[53] In response, Crivella Technologies' managing director Michael McNees wrote to the TPPs “to address the concerns that you have raised.”[54] In explaining the proposed pricing, Mr. McNees noted that Crivella Technologies had “developed our own work product that is inextricably integrated with the massive amount of data and attorney work product that exists for the Avandia collection.”[55] Mr. McNees further explained: Another factor in the cost of services is the sheer size of the collection. Not knowing how much of the collection you will want to work with, we provided prices anticipating you would want to utilize the entire collection used in the personal injury actions, which is a very sizable collection. *6 Please understand that it is burdensome to retrieve and ready this collection for your use. Crivella Technologies is unwilling to employ the time, resources, and proprietary information to transfer this data to another party.[56] After the parties had further discussions regarding Crivella Technologies' services, the TPPs proposed that the parties enter into an agreement using the pricing terms in the “services and pricing matrix” Mary Geever had shared with the TPPs in March 2020.[57] Mr. McNees responded two weeks later that Crivella Technologies was “no longer interested in working on this project with [the TPPs] and our Proposal is withdrawn.”[58] He also indicated that Crivella Technologies could work with the TPPs to provide the “portion of the collection” of “the documents and data pertaining to the Avandia matter” that the TPPs required, for the previously quoted $48,352 restoration fee, plus $0.25 “per page for documents you request be provided.”[59] Mr. McNees did not explain the basis for the $0.25-per-page charge, but at the evidentiary hearing, Mr. Crivella testified that it came from the original 2008 PSC agreement, under which Areté Legal charged the PSC $0.25 per page “for automated linguistic analysis of produced documents utilizing Areté Legal's proprietary document analyzers.”[60] PROCEDURAL HISTORY On February 5, 2021, the day after Crivella Technologies informed the TPPs that it was no longer interested in working on the Avandia matter, the TPPs contacted the Special Discovery Master to request assistance in resolving this dispute. Over the next month, the Special Discovery Master discussed the dispute with the TPPs and Crivella Technologies, but was unable to resolve the dispute. In March 2021, the TPPs served a subpoena on Crivella Technologies pursuant to Rule 45, seeking, among other things, the Avandia MDL documents. Crivella objected to the subpoena on a number of grounds and, after responding to the objections, the TPPs filed the motion to compel that is the subject of this Report and Recommendation. On May 18, 2021, the Court referred the motion to the Special Discovery Master. After consulting with the parties, the Special Discovery Master scheduled an in-person evidentiary hearing for June 24, 2021. At that hearing, the parties presented testimony from Bryan Aylstock, Paul Kiesel, Arthur Crivella, and Joseph Zonies. ANALYSIS I. The Law and Standards Applicable to the TPPs' Motion to Compel. A party may serve a subpoena on a non-party to “produce designated documents, electronically stored information, or tangible things in [the non-party's] possession, custody, or control.”[61] If a requesting party demonstrates that documents requested in a subpoena are relevant,[62] “the burden shifts to the objecting party to explain why discovery should not be permitted.”[63] A non-party “need not provide discovery of electronically stored information from sources that the [non-party] identifies as not reasonably accessible because of undue burden or cost.”[64] The non-party bears the burden of demonstrating “that the information is not reasonably accessible because of undue burden or cost.”[65] If the non-party meets this burden, “the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C).”[66] *7 Rule 45 provides that a requesting party “may move the court for the district where compliance is required for an order compelling production or inspection.”[67] The MDL statute, 28 U.S.C. § 1407, provides that an MDL judge “may exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions in such coordinated or consolidated pretrial proceedings.”[68] As discussed below, the primary disputed issue is whether Crivella Technologies possesses the Avandia MDL documents. If it does not, the TPPs' motion should be denied, because a non-party cannot be compelled to produce documents not within its possession, custody, or control.[69] A leading treatise explains the process and standard for resolving an issue such as this: While a motion to compel may be denied if a party asserts that the requested documents do not exist or that such documents are not in the party's custody or control, when it appears that the documents may exist or are within the possession, custody, or control of the responding party, that party may be required to do more than simply assert the contrary. When the responding party denies the existence of documents, the party seeking production must cite to specific evidence to challenge the assertion that no responsive documents exist. If the requesting party is able to identify such specific evidence, the burden shifts to the responding party to show specifically where they have searched and why these documents are not, in fact, within their custody, possession, or control.[70] II. Crivella Technologies Has Not Met Its Burden of Demonstrating That It Should Not Be Compelled to Produce the Avandia MDL Documents. In its response to the TPPs' motion to compel, Crivella Technologies makes three arguments for why the Court should deny the motion: (1) the Court lacks jurisdiction over the motion; (2) the Avandia MDL documents are protected material in their current form, are not readily accessible, and would subject Crivella Technologies to undue burden to produce; and (3) the TPPs have not demonstrated good cause for obtaining the documents from Crivella Technologies.[71] Crivella Technologies also argues that, if the Court grants the motion, the TPPs should be ordered to pay Crivella Technologies $4,507,560 for production of the documents.[72] For the reasons set forth below, the Special Discovery Master recommends that the Court reject each of these arguments and grant the TPPs' motion. A. The Court Has Jurisdiction Over the TPPs' Motion. *8 As noted, under the MDL statute, this Court “may exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions in such coordinated or consolidated pretrial proceedings.”[73] While the statute refers to an MDL court's authority as to only “pretrial depositions,” most courts to address the issue have held that the statute confers broader authority on an MDL court to oversee other discovery disputes, such as those involving document subpoenas issued to non-parties. Indeed, this statutory provision is part of the larger MDL statute, which broadly provides that separate civil actions should be coordinated or consolidated “for the convenience of parties and witnesses” when doing so “will promote the just and efficient conduct of such actions.”[74] Thus, in an oft-cited decision, the Sixth Circuit held that a “judge presiding over an MDL case ... can compel production by an extra-district nonparty; enforce, modify, or quash a subpoena directed to an extra-district nonparty; and hold an extra-district nonparty deponent in contempt, notwithstanding the nonparty's physical situs in a foreign district where discovery is being conducted.”[75] As Judge Robreno of this District explained, the Sixth Circuit's interpretation of the MDL statute “seems reasonable in light of the purpose of the statute to coordinate and consolidate pretrial proceedings, providing centralized management to ensure just and efficient conduct.”[76] Moreover, to “hold that a court presiding over an MDL case could not enforce a motion to compel would hamper the ability of an MDL court to coordinate and consolidate pretrial proceedings.”[77] Consistent with the foregoing authority, this Court recently held in another MDL that the Court “has jurisdiction to adjudicate discovery disputes concerning document subpoenas directed to non-parties” located outside this District.[78] There is no basis to reach a contrary conclusion in this MDL. Because the MDL statute confers authority on an MDL court to adjudicate a motion to compel a non-party to comply with a subpoena for production of documents that commands compliance outside the MDL district, the Court should reject Crivella Technologies' argument that the Court does not have jurisdiction over the TPPs' motion. B. The Avandia MDL Documents Are Not Protected Material and Their Restoration and Production Would Not Subject Crivella Technologies to Undue Burden or Cost. *9 Crivella Technologies argues that the TPPs' motion should be denied because the material the TPPs seek is “imbedded” with Crivella Technologies' “intellectual property,” and the material is not reasonably accessible without Crivella Technologies incurring “immense cost and burden.”[79] Crivella Technologies has not demonstrated that either of these is the case. 1. Protected Material. In their motion to compel, the TPPs seek to obtain the Avandia MDL documents—i.e., documents produced by GSK and non-parties to the PSC and provided to Crivella Technologies for use on its system. These are the materials variously called Case Materials (in the 2008 agreement) or Content (in the 2016 agreement). The TPPs do not seek any of Crivella Technologies' work product, referred to in the agreements as Production Pieces. Thus, there is no issue here regarding a party's request to obtain a non-party's trade secrets, confidential research, development, or commercial information, or unretained expert's opinion.[80] Crivella Technologies' argument that granting the TPPs' motion would require the disclosure of Crivella Technologies' intellectual property is based on its contention that the only Avandia MDL material is still possesses are the Production Pieces it created for the PSC, rather than the Case Materials the TPPs seek. At the evidentiary hearing (and in its response to the TPPs' motion), Crivella Technologies did not indicate precisely when it ceased to possess the Case Materials at issue, but it implied that it was done either when the 2008 agreement was terminated in 2014 (and copies of the documents allegedly were sent to Bryan Aylstock, Paul Kiesel, and Joseph Zonies) or after the 2016 agreement was terminated in 2017. The Special Discovery Master finds that the record does not support either contention. First, the record fails to demonstrate that the Avandia MDL documents were sent to the three former PSC members in 2014. The actual content of the only two documents presented at the evidentiary hearing on this topic is too attenuated from the contention that Crivella Technologies sent hard drives containing all of the Avandia MDL documents to the former PSC members to support this conclusion. The former PSC members testified credibly that they had neither any recollection nor any record (after thoroughly searching) of receiving a copy of the Avandia MDL documents from Crivella Technologies in 2014. Nor did Crivella Technologies present any documents supporting this contention, such as emails, cover letters, invoices, payment documentation, tracking records, or delivery confirmations. Finally, Arthur Crivella's testimony regarding his visit to Joseph Zonies' office and their discussion about the Avandia MDL documents purportedly sent to Mr. Zonies is not credible, given the absence of any such information in Mr. Crivella's declaration, the lack of any corroborating documentary evidence, and Mr. Zonies' contrary testimony. Second, even if the evidence did demonstrate that Crivella Technologies sent hard drives containing copies of the Avandia MDL documents to the three former PSC members in 2014, no evidence was presented to support the contention that Crivella Technologies permanently deleted the material at that time.[81] Indeed, the evidence demonstrates the opposite, that Crivella Technologies continued to possess the Avandia MDL documents after 2014 and “reactivated” them in 2016 when Crivella Technologies entered into an agreement with the TPPs. *10 Among other things, it is implausible that Crivella Technologies would enter into an agreement with the TPPs in 2016, just two years after the original PSC agreement was terminated, to provide similar document repository services if Crivella Technologies no longer possessed the Avandia MDL documents. Arthur Crivella conceded as much at the evidentiary hearing.[82] Moreover, the fees Crivella Technologies charged the TPPs in 2017—$3,145 per month[83]—are consistent with pricing in the 2016 agreement for approximately 750 GB to 1 TB of data,[84] roughly similar to other estimates in the record of the size of the Avandia MDL documents.[85] Third, and most significant, the record demonstrates that Crivella Technologies possessed the Avandia MDL documents in 2020 and early 2021 when it was discussing with the TPPs the possibility of entering into a new agreement. While Arthur Crivella testified that Crivella Technologies does not currently possess the Avandia MDL documents,[86] the documentary record demonstrates otherwise: • After the Court granted GSK summary judgment in December 2017, the TPPs inquired of Crivella Technologies “what can be done to essentially mothball the documents and data,” and “put things in hiatus for as long as necessary to resolve the appeal.”[87] Crivella Technologies did not respond that, rather than “mothball the documents and data,” it would destroy them.[88] • After the Third Circuit reversed the summary judgment ruling, the TPPs inquired of Crivella Technologies in March 2020 regarding “the Avandia MDL database,” and Crivella Technologies responded that “[w]e do have the system for this litigation and would be happy to discuss reactivating it.”[89] • The TPPs then informed Crivella Technologies that “[w]e would like to restart access to the database in a few months.”[90] Once again, Crivella Technologies did not respond that it did not possess the Avandia MDL documents; rather, it indicated that it would work with the TPPs “to have everything in place and ready to go when you are ready to begin working.”[91] • When Crivella Technologies made a formal proposal to the TPPs in December 2020, it once again said nothing about not possessing the Avandia MDL documents. To the contrary, it noted certain “key assumptions” for the proposal, including that the “current size of the produced document collection and related work product is 17,836,460 pages,” and that “[r]estoration of the data will be required.”[92] • Crivella Technologies' December 2020 proposal included a $48,352 restoration fee for approximately 967 GB of data, and quoted a monthly fee of $50,905 for 17,836,460 pages of documents[93]—both of which figures (data and pages) are consistent with other information in the record regarding the size of the Avandia MDL documents. • When the TPPs objected to the proposed pricing, Crivella Technologies responded with an explanation that, among other things, referred to “the sheer size of the collection” it possessed and noted its assumption that “you would want to utilize the entire collection used in the personal injury actions, which is a very sizable collection.”[94] These contemporaneous documents are much more persuasive and credible than the unsupported, after-the-fact contention of Crivella Technologies (and Arthur Crivella, in his evidentiary hearing testimony) that Crivella Technologies does not possess the Avandia MDL documents. Put simply, it is inconceivable that for almost a year (from March 2020 to January 2021), Crivella Technologies would discuss with the TPPs the possibility of entering into a new agreement and would repeatedly refer to the Avandia MDL documents if during this time Crivella Technologies did not in fact possess those documents. *11 Mr. Crivella attempted to explain away these repeated representations (largely made by Mary Geever and Michael McNees) by pointing out that Ms. Geever is “not a technical person,”[95] and Mr. McNees “wouldn't know a production piece from case materials. He is strictly a salesperson.”[96] But it is implausible that Crivella Technologies executives, whether technically savvy or not, would make a contract proposal (that ostensibly came from Mr. Crivella[97]) and send numerous written communications suggesting that Crivella Technologies possessed the Avandia MDL documents—all 17,836,460 pages, totaling roughly one terabyte—if that was not actually the case. In the end, Mr. Crivella's bald statement that his company does not have the Avandia MDL documents is insufficient to overcome the consistent, unequivocal documentary record.[98] Indeed, even Mr. Crivella acknowledged that his assumption was that “we still have” whatever data Crivella Technologies possessed in 2016, at the time of the original TPP agreement.[99] As he put it, “whatever [the TPPs] started with, we can probably get it back to that same place,” which is “mostly the same as the $50,000 restoration.”[100] And as noted above, the record strongly suggests that the TPPs had access to all of the Avandia MDL documents in 2016 and 2017. The Special Discovery Master finds that Crivella Technologies possesses the Avandia MDL documents (the Case Materials or Content, in the agreements' language), and its contention that compliance with the TPPs' subpoena in the manner sought by the present motion would require the disclosure of Crivella Technologies' intellectual property or other protected material is not supported by the record. 2. Undue Burden and Cost. Crivella Technologies' argument regarding burden and cost similarly derives from its contention that it no longer possesses the Avandia MDL documents—the Case Materials—that the TPPs seek. Crivella Technologies contends that it only possesses the Production Pieces and it would have to “reverse engineer” this material to recreate the Case Materials, a process it claims would require new personnel and physical infrastructure and cost millions of dollars, and ultimately result in a set of documents riddled with errors.[101] For the reasons given above, the Special Discovery Master finds that the record does not support the premise of this argument—that Crivella Technologies possesses only Production Pieces and not the Case Materials. There is simply no indication in the contemporaneous documentary record that the material to which Crivella Technologies repeatedly referred in 2020 and early 2021 was solely Production Pieces and not the entirety of the Case Materials—i.e., the Avandia MDL documents. *12 Crivella Technologies also failed to prove the specific contention that it would entail an undue burden and cost to “reverse engineer” the material it claims it possesses. Most fundamentally, Crivella Technologies repeatedly represented that it could “reactivate” or “restore” the material to a point where the TPPs could use it,[102] without once indicating that doing so would entail an undue burden and cost—or any cost other than $48,352. Moreover, Crivella Technologies' evidence regarding the purported process required to convert the material it claims it possesses into the Avandia MDL documents was insufficient to demonstrate that it faced an undue burden. For example, when asked whether, after restoring the data for $48,352, Crivella Technologies could “then make a production set of all of the GSK documents,” Mr. Crivella said, “I don't think so,” but his explanation of why this was so was confusing and nonresponsive.[103] Similarly, when asked by his own counsel whether he could take the Production Pieces and convert them into the original Case Materials, Mr. Crivella said that the process would be difficult, expensive, and flawed, but he failed to actually explain what that process would entail.[104] In short, Crivella Technologies failed to present any credible explanation of how converting the material it claims it possesses into the Avandia MDL documents would be an undue burden. C. The TPPs Need Not Demonstrate Good Cause for Production of the Documents From Crivella Technologies. When a non-party demonstrates that electronically stored information is not reasonably accessible because of undue burden or cost, a court may order the information produced only if the requesting party “shows good cause, considering the limitations of Rule 26(b)(2)(C),”[105] which, as relevant here, precludes discovery that “can be obtained from some other source that is more convenient, less burdensome, or less expensive.”[106] Because, as explained above, Crivella Technologies has not demonstrated that the Avandia MDL documents are inaccessible without its incurring undue burden or cost, the TPPs need not show good cause to obtain the documents. In any event, the TPPs plainly have good cause to obtain the documents, which are critical both for the TPPs' claims and for determining what additional discovery the TPPs need to litigate their claims in the MDL. And no evidence was presented at the evidentiary hearing that the TPPs could obtain the Avandia MDL documents from another source that is more convenient, less burdensome, or less expensive. As noted above, the record fails to support Crivella Technologies' claim that Bryan Aylstock, Paul Kiesel, or Joseph Zonies received (and therefore may currently possess) a copy of the Avandia MDL documents in 2014. Nor was any evidence presented that some other individual or entity besides the former PSC members (such as GSK) would be a more convenient, less burdensome, or less expensive source of all of the Avandia MDL documents. D. Crivella Technologies Did Not Demonstrate That Its Reasonable Costs for Production of the Documents Is $4,507,560. *13 When a court compels a non-party to comply with a subpoena and produce documents, it “must protect” that non-party “from significant expense resulting from compliance.”[107] Crivella Technologies contends that, if the Court grants the TPPs' motion and requires Crivella Technologies to produce the Avandia MDL documents, it should order the TPPs to pay Crivella Technologies $4,507,560 for the documents.[108] The Special Discovery Master finds that Crivella Technologies failed to demonstrate that its reasonable costs for producing the Avandia MDL documents would be more than $4.5 million. Rather, during the discussions with the TPPs in 2020 and 2021 regarding a potential new agreement, Crivella Technologies consistently represented that restoration of the Avandia MDL documents would cost $48,352. Crivella Technologies offered scant evidence in support of its contention that the cost of restoring the Avandia MDL documents would be over $4.5 million. That figure is based on the restoration fee of $48,352, plus the $0.25-per-page charge that first appeared in Crivella Technologies' February 4, 2021 email informing the TPPs that Crivella Technologies was “no longer interested in working on this project.”[109] At no point prior to that communication terminating the discussions regarding a new agreement did Crivella Technologies indicate that its costs for restoring the Avandia MDL documents would be more than $48,352. Mr. Crivella testified at the evidentiary hearing that the $0.25-per-page charge came from the original 2008 PSC agreement's “price for the linguistic analysis.”[110] But he failed to explain why that price from a terminated agreement for an entirely different task was a reasonable charge for restoring the Avandia MDL documents and producing them to the TPPs. Nor did Crivella Technologies explain why it would cost $4.5 million to restore the Avandia MDL documents in 2021, but it levied no similar charge on the TPPs when it restored the documents in 2016. Most fundamentally, Crivella Technologies' claim regarding the cost of restoring the documents is based on the premise that it possesses only the Production Pieces and that it would take a massive effort to convert these into the Case Materials.[111] But as discussed above, the Special Discovery Master finds that Crivella Technologies has failed to prove this premise—that it possesses only the Production Pieces. In short, the contentions in Crivella Technologies' response and the testimony of Arthur Crivella at the evidentiary hearing are contradicted by the contemporaneous documentary record, which supports the conclusion that Crivella Technologies can restore the Avandia MDL documents to a usable format for $48,352—rather than at a cost of $4.5 million. The TPPs did not present any evidence that the $48,352 figure was unreasonable; thus, should the Court grant the TPPs' motion, the Special Discovery Master recommends that the Court order the TPPs to pay Crivella Technologies $48,352 for production of the documents. RECOMMENDATION The Special Discovery Master recommends that the Court grant the TPPs' motion to compel and require Crivella Technologies to produce to the TPPs the 17,836,460 pages of documents previously contained in Crivella Technologies' document repository and any data associated with those documents, and that the TPPs pay Crivella Technologies $48,352 for the production of those documents. Respectfully submitted, Footnotes [1] Crivella Exh. 1 at 1. All references to exhibits in this Report and Recommendation are to the exhibits the parties submitted in connection with the June 24, 2021 evidentiary hearing before the Special Discovery Master. There is no dispute that the various entities mentioned in the relevant exhibits (Areté Legal, Knowledge Kiosk Solutions Limited, Crivella West Technologies, Crivella Technologies Limited) are all related and effectively interchangeable for purposes of the present dispute. For ease of discussion, this Report and Recommendation often refers to Crivella Technologies, the respondent for the TPPs' motion, when the entity referenced in an exhibit may have been one of the other related entities. [2] Id. at 4. [3] Id. [4] Id. at 1, 4. [5] Hearing Tr. 80:3-18. [6] Id. at 185:2-10. [7] Crivella Exh. 1 at Exh. A, p. 2. [8] Id. Any portions of exhibit quotations containing all caps have been modified to initial capitalization for ease of reading throughout this Report and Recommendation. [9] Id. [10] Hearing Tr. 150:9-15. [11] Crivella Exh. 1 at Exh. A, p. 3. [12] Id. at Exh. A, p. 8. [13] TPP Exh. 50. [14] Crivella Exh. 3 at 4. The quotation comes from an email sent by a Crivella West employee to other Crivella West employees, with the subject line, “Crivella West-Avandia Litigation Collaborative Center Access Notification.” Mr. Kiesel does not appear to have been copied on the email, though he may have been blind copied. [15] Id. [16] Id. at 2-3. [17] Crivella Exh. 4. [18] Feb. 19, 2014 Order (Doc. No. 3865). [19] In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 804 F.3d 633 (3d Cir. 2015). [20] The one exception is an email that Crivella Technologies presented at the evidentiary hearing that had not previously been identified and exchanged according to the Special Discovery Master's pre-hearing instructions. In this email, the same Crivella West employee who sent the April 11, 2014 email (Crivella Exh. 4) told another Crivella West employee, “I need 2 (3-terabyte) external hard drives today for the Avandia project.” Hearing Tr. 208:20-24. While Arthur Crivella testified that his company “would never buy this unless it's for the reason of moving material from us to somebody else,” id. at 209:9-11, there is no indication in this email that hard drives containing the Avandia MDL documents were sent to Mr. Aylstock or Mr. Kiesel. [21] Hearing Tr. 31:23-24; 38:22-39:1 (Aylstock); 61:16-21 (Kiesel). [22] Id. at 30:11-31:24; 33:15-34:8; 37:5-18; 52:16-53:10 (Aylstock); 61:12-65:1 (Kiesel). [23] Id. at 34:12-18. [24] Id. at 93:8-13. [25] Motion Resp., Decl. ¶ 14 (Doc. No. 5345-1). [26] Hearing Tr. 119:22-120:8; 121:5-8; 124:16-126:17; 127:16-128:7; 131:7-132:3. [27] Id. at 257:9-259:16; 262:22-263:1; 263:17-24. [28] Id. at 176:20-23. [29] Crivella Exh. 2. [30] Id. at Exh. B, p. 1; see also Hearing Tr. 141:22-144:20; 146:9-11. [31] Hearing Tr. 112:16-114:14; 115:5-13. [32] Crivella Exh. 5. [33] Id. [34] Dec. 7, 2017 Order (Doc. No. 5153). [35] TPP Exh. 38 at 1. [36] Id. [37] Hearing Tr. 212:8-10. [38] In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 945 F.3d 749 (3d Cir. 2019), cert. denied, 141 S. Ct. 265 (2020). [39] TPP Exh. 8 at 6. [40] Id. [41] Id. [42] Id. at 5-6. [43] Id. at 4-5. [44] TPP Exh. 7 at 3. [45] TPP Exh. 6 at 1. [46] Id. [47] Id. at 2. [48] Id. This works out to 967.04 GB, though, when asked about this at the evidentiary hearing, Mr. Crivella testified that the price was not based on the actual size (in gigabytes) of the data, but was estimated based on the number of pages (17,836,460) and the average file size of a page of data. See Hearing Tr. 153:4-154:17. [49] TPP Exh. 6 at 2. [50] TPP Exh. 5; TPP Exh. 8 at 5. [51] TPP Exh. 48 (listing monthly charges in 2017 of $3,145). [52] TPP Exh. 7 at 2-3. [53] Id. at 3. [54] Id. at 1. [55] Id. at 1-2. [56] Id. at 2. [57] TPP Exh. 8 at 2. [58] Id. at 1. [59] Id. [60] Crivella Exh. 1 at Exh. B; Hearing Tr. 225:1-22. [61] FED. R. CIV. P. 45(a)(1)(A)(iii). [62] There can be no doubt that the Avandia MDL documents are relevant to the TPPs' claims—or, at a minimum, that some of these documents are relevant to the TPPs' claims and that the TPPs require access to them to determine what additional documents they need to support their claims. [63] 9 MOORE'S FEDERAL PRACTICE - CIVIL § 45.03[1] (2021); see also In re Domestic Drywall Antitrust Litig., 300 F.R.D. 234, 239 (E.D. Pa. 2014). [64] FED. R. CIV. P. 45(e)(1)(D). [65] Id. [66] Id. As relevant here, Rule 26(b)(2)(C) precludes discovery that “can be obtained from some other source that is more convenient, less burdensome, or less expensive.” [67] FED. R. CIV. P. 45(d)(2)(B)(i). [68] 28 U.S.C. § 1407(b). [69] See FED. R. CIV. P. 45(a)(1)(A)(iii); Russo v. Aerojet Rocketdyne, Inc., No. 18-3024, 2020 U.S. Dist. LEXIS 140208, at *38 (E.D. Pa. Aug. 5, 2020) (“the court cannot order production of documents that are not in the responding party's possession or control” (citation omitted)). [70] 7 MOORE'S FEDERAL PRACTICE - CIVIL § 34.14[2][a] (2021) (footnotes omitted); see also Mason Tenders Dist. Council of Greater N.Y. v. Phase Constr. Servs., Inc., 318 F.R.D. 28, 42 (S.D.N.Y. 2016) (same); cf. HCC Life Ins. Co. v. Conroy, No. 15-cv-2897, 2016 U.S. Dist. LEXIS 144289, at *10 (S.D. Cal. Oct. 18, 2016) (denying motion to compel production of additional documents where requesting party did not contradict producing party's evidence that it had produced all documents in its possession, custody, or control); Francis v. United States, No. 09-Civ.-4004, 2011 U.S. Dist. LEXIS 59762, at *26-*27 (S.D.N.Y. May 31, 2011) (same), objections overruled, 2011 U.S. Dist. LEXIS 95618(S.D.N.Y. Aug. 23, 2011). [71] Motion Resp. 3-7 (Doc. No. 5345). [72] Id. at 7-8. [73] 28 U.S.C. § 1407(b). [74] Id. § 1407(a). [75] United States ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 444 F.3d 462, 468-69 (6th Cir. 2006) (citing § 1407(b)); see also In re Asbestos Prods. Liab. Litig., 256 F.R.D. 151, 154 (E.D. Pa. 2009) (“Several courts have reconciled the language of both the statute and the federal rule to find that the statute's reference to ‘depositions’ encompasses document production subpoenas as well.”); In re Auto. Refinishing Paint Antitrust Litig., 229 F.R.D. 482, 485 n.5 (E.D. Pa. 2005) (“Although § 1407(b) refers to ‘pretrial depositions,’ the statute has been construed to encompass subpoenas duces tecum as well.”). [76] Asbestos Prods., 256 F.R.D. at 154 (internal quotation omitted). [77] Id.; see also In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Practices & Antitrust Litig., No. 17-md-2785, 2018 U.S. Dist. LEXIS 204563, at *14-*16 (D. Kan. Dec. 4, 2018) (noting that many courts have concluded “that § 1407(b) empowers an MDL judge to enforce a subpoena duces tecum acting as a judge of another district”); In re Blue Cross Blue Shield Antitrust Litig., No. 2:13-cv-20000, 2017 U.S. Dist. LEXIS 229386, at *26 (N.D. Ala. Dec. 4, 2017) (same). [78] In re Generic Pharm. Pricing Antitrust Litig., No. 16-MD-2724, Order at 4 (Dec. 8, 2020) (Doc. No. 1620); see also In re Generic Pharm. Pricing Antitrust Litig., No. 16-MD-2724, Pre-trial Order No. 148 (Dec. 8, 2020) (Doc. No. 1621) (providing for centralized enforcement of pretrial subpoenas). [79] Motion Resp. 5. [80] See FED. R. CIV. P. 45(d)(3)(B). [81] Cf. Motion Resp., Decl. ¶ 15 (contending that, after the hard drives were sent to Mr. Aylstock and Mr. Kiesel, the Case Materials were deleted from Crivella Technologies' active servers and remained only on back-up tapes, which were recycled within three months). [82] Hearing Tr. 112:16-114:14; 115:5-13. [83] TPP Exh. 48. [84] Crivella Exh. 2 at 1-2, Exh. A, p. 1. [85] See, e.g., TPP Exh. 50 at 3-10; TPP Exh. 6 at 2; Hearing Tr. 153:4-154:17. [86] Hearing Tr. 218:17-21. [87] TPP Exh. 38 at 1. [88] Id. [89] TPP Exh. 8 at 6. [90] Id. at 5-6. [91] Id. at 4-5. [92] TPP Exh. 6 at 2. [93] Id. [94] TPP Exh. 7 at 2. [95] Hearing Tr. 238:2-4. [96] Id. at 247:1-3. [97] TPP Exh. 6 at 2; TPP Exh. 7 at 3. [98] See, e.g., Anderson v. Bessemer City, 470 U.S. 564, 575 (1985) (noting that a witness's testimony may be discredited where documents or objective evidence contradict the witness's testimony); United States v. Mann, 701 F.3d 274, 298 (8th Cir. 2012) (same); Sajid v. Ijaz, No. 18-1899, 2019 U.S. Dist. LEXIS 135920, at *4 n.2 (E.D. Pa. Aug. 12, 2019) (noting that a witness's testimony is more credible when none of it is “contradicted by the documentary evidence”), aff'd, 828 F. App'x 831 (3d Cir. 2020); United States v. Northern States Invs., Inc., 670 F. Supp. 2d 778, 784 n.15 (N.D. Ill. 2009) (finding a witness's testimony “not credible, in light of contradictions between his testimony and the documentary evidence”); cf. Williams v. Lemmon, 557 F.3d 534, 540 (7th Cir. 2009) (“On review under Rule 52, a court of appeals respects a credibility finding unless the judge has taken a view inconsistent with the laws of physics or with uncontradicted documentary evidence.”). [99] Hearing Tr. 239:16-20. [100] Id. at 239:21-240:15; see also id. at 150:3-152:6 (similar testimony). [101] Id. at 222:4-224:22. [102] See TPP Exh. 8 at 6 (Crivella Technologies' expression of willingness to discuss “reactivating ... the system for this litigation”); id. at 4-6 (Crivella Technologies' indication that it would work “to have everything in place and ready to go when you are ready to begin working”); TPP Exh. 6 at 2 (Crivella Technologies' reference to “[r]estoration of the data,” and the “current size of the produced document collection and related work product [of] 17,836,460 pages”); TPP Exh. 7 at 2 (Crivella Technologies' observation that it assumed the TPPs “would want to utilize the entire collection used in the personal injury actions”). [103] Hearing Tr. 165:8-168:4. [104] Id. at 222:4-224:22. [105] FED. R. CIV. P. 45(e)(1)(D). [106] FED. R. CIV. P. 26(b)(2)(C)(i). [107] FED. R. CIV. P. 45(d)(2)(B)(ii). [108] Motion Resp. 7-8. [109] TPP Exh. 8 at 1. [110] Hearing Tr. 225:1-22; see Crivella Exh. 1 at Exh. B. [111] Hearing Tr. 222:4-224:22.