IN RE: GENERIC PHARMACEUTICALS PRICING ANTITRUST LITIGATION MDL NO. 2724, 16-MD-2724 United States District Court, E.D. Pennsylvania Signed August 24, 2023 Counsel WHITE AND WILLIAMS LLP, David H. Marion, Special Master, Morgan S. Birch, 1650 Market Street, One Liberty Place, Suite 1800, Philadelphia, PA 19103, Tel: (215) 864-6870, mariond@whiteandwilliams.com, birchm@whiteandwilliams.com. Marion, David H., Special Master SPECIAL MASTER DAVID H. MARION'S SEVENTEENTH REPORT AND RECOMMENDATION REGARDING PLAINTIFF DISTRICT OF COLUMBIA'S MOTION TO QUASH DEFENDANTS' NOTICE TO TAKE ITS 30(b)(6) DEPOSITION I. THE DISPUTE A. The Office of the Attorney General for the District of Columbia's Contentions. *1 The Office of the Attorney General for the District of Columbia (“DCAG”) has moved under Pre-Trial Order 163 to quash Defendants' September 12, 2022, notice to take its 30(b)(6) deposition (the “Notice”) or, in the alternative, for a protective order prohibiting Defendants from taking the deposition as noticed. DCAG contends that all topics, numbered 1 through 7, (the “Topics”) set forth in the Notice are improper because they call for legal theories, undisclosed experts' opinions, and its attorneys' interpretation of third-party documents. DCAG argues that Defendants are effectively seeking an attorney's deposition, which they contend is improper under the circumstances. Specifically, DCAG argues that Topics 1 through 3 improperly seek to learn the District of Columbia's (“DC”) attorneys' legal contentions; prematurely seeks expert discovery; are duplicative of facts already provided to Defendants in written discovery and during other Attorneys General Offices' depositions; and are outside the scope of independent knowledge of DCAG employees. DCAG claims that the last 4 Topics are entirely duplicative of Defendants' written discovery requests; and (in their supplemental briefing) DCAG also contends that Defendants have previously “wasted time” or asked “inappropriate and cumulative” questions during 30(b)(6) depositions taken of other Attorneys Generals' Offices related to several areas of inquiry in the Notice. Given that history, DCAG argues the burden that Defendants' expansive Notice imposes on DCAG cannot be justified. B. Defendants' Response to DCAG's Motion Defendants contend that they are simply seeking testimony from a representative of DC under Rule 30(b)(6), one of the Plaintiff States in this MDL, about relevant, non-privileged facts related to the claims DC is pursuing against the Defendants. Defendants contend that they do not directly seek the deposition of the Attorney General or any particular attorney affiliated with DCAG, but are simply seeking to depose a representative of this Plaintiff pursuant to Pre-Trial Order No. 158 (the “Fact Deposition Protocol”). As to the Topics, Defendants contend that Topics 1 through 4 seek information regarding the basic facts underlying DC's claims for relief, and also address what documents and data DC will rely upon to prove its asserted damages. Defendants argue that these topics are designed to give them equal knowledge about how DC plans to prove its entitlement to the disgorgement and restitution it seeks, so that Defendants can adequately prepare their defenses. They assert that Topics 5 through 7 seek information regarding when DC first “knew or should have known” about the basis for its claims and whether any alleged acts of fraudulent concealment by Defendants are involved. Defendants further argue that none of the Topics require expert testimony, as DCAG contends, and that the mere fact that Defendants had also served written discovery covering similar subjects does not bar them from seeking testimony on these topics, particularly given the absence of relevant information in DC's productions. *2 Defendants declined DCAG's offer to provide written answers to these areas of inquiry through interrogatories because they contend, they should not be limited in the number of interrogatories they issue in lieu of a deposition and they should not further be precluded from taking a deposition based on the answers to those interrogatories. II. DISCUSSION AND CONSIDERATIONS In my Fourteenth Report and Recommendation (the “Fourteenth R&R”) I set forth my understanding of the important differences between Rule 30(b)(1) (“normal” fact depositions) and Rule 30(b)(6) depositions. When that Fourteenth R&R was generally adopted by the Court, and when many other parties submitted to such depositions of prepared representatives without undue difficulty, I believed there would be a cessation of such disputes – and there was for a while. However, there has been a recurrence of challenges to Rule 30(b)(6) depositions, that most recent of which was brought by a Direct Purchaser Plaintiff Cesar Castillo, LLC (“CCI”). Although it appeared that CCI would not agree to its 30(b)(6) deposition without a formal Court Order, Morgan Birch and I prepared an “informal recommendation” which CCI accepted. Since the CCI recommendation was submitted only to the parties to that dispute, I am going to repeat here what was said in that document in the hope it will similarly persuade the DCAG to likewise reconsider and reach agreement. That would serve to avoid the objections, further briefings and delays inherent in the formal R&R procedures. I am not a blind adherent to the principle of consistency or even “stare decisis”. I recognize there can be an exception to every rule or a cogent reason not to apply it in particular circumstances. However, in the circumstances of this dispute, to grant DC's present Motion would require us to ignore, in whole or in part, the following: 1. The clear language and purpose of Rule 30(b)(6) of the Federal Rules of Civil Procedure, which is to take the deposition of a corporation or entity. There is a marked difference between providing testimony in an individual capacity pursuant to Rule 30(b)(1), versus providing testimony on behalf of a corporation. See e.g. Buckley v. Clifford Chance LLP, No. 2:06-cv-1003-LDD, 2008 U.S. Dist. LEXIS 137271, at *4 (E.D. Pa. June 23, 2008) (granting plaintiffs motion to compel defendants to present a witness to testify in 30(b)(6) deposition, concluding in part, that duplicative testimony provided in a 30(b)(1) deposition was not sufficient reason to deny plaintiffs their right to obtain 30(b)(6) deposition testimony). 2. The Fact Deposition Protocol, requiring each party to sit for a 30(b)(6) deposition, even if that same party (even that same witness) previously sat for a 30(b)(1) deposition. Testimony provided by a party under Rule 30(b)(6) carries entirely different meaning, weight and consequences in a litigation, particularly one of this magnitude, then testimony provided by a party in a 30(b)(1) capacity. Nor can we overlook the fact that a plaintiff in a federal antitrust case enjoys the prospect, if its case is successful, of receiving treble damages and reimbursement of its attorneys' fees. Such a plaintiff should expect to be subject to the burdens of providing reasonable discovery as authorized by the Federal Rules of Civil Procedure, including Rule 30(b)(6) depositions. *3 3. My Fourteenth R&R dated January 4, 2023 resolving a 30(b)(6) dispute between certain Plaintiffs and Defendant Lupin, which was upheld by Judge Rufe [ECF No. 2384]. 4. My June 15, 2023 Informal Recommendation rejecting DCAG's Motion to Quash Defendants' Notice to take its 30(b)(6) deposition, for the same reasons discussed herein. 5. My recommendation to resolve the Plaintiff State of Hawaii's Objections to Defendants' Rule 30(b)(6) notice and topics, which objections I found to be difficult to understand, unacceptably ambiguous, and confusing. However, that dispute was recently “resolved” by Hawaii's decision (regrettable and unnecessary in my view) to withdraw entirely from the MDL and abandon its case. 6. My review of persuasive and relevant decisions of other courts, such as Sanofi-Aventis v. Sandoz, Inc. (272 F.R.D. 391, 393-94) (D.N.J., 2011). Other considerations include: 7. The mere fact that DCAG is an attorney's general office does not preclude it from having to present a witness pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. As stated above, the Fact Deposition Protocol requires each State (including DC) prepare for and sit for a Rule 30(b)(6) deposition. See ECF No. 1688 at 15—16. 8. DC, as the party seeking a protective order, must show that there is “good cause” by “demonstrating a particular need for protection.” Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1121 (3d Cir. 1986). “ ‘[B]road allegations of harm, unsubstantiated by specific examples or articulated reasoning,’ do not support a showing of ‘good cause.’ ” Holm v. Pollack, 2001 WL 1257728, at *2 (E.D. Pa. Oct. 19, 2001) (quoting Cipollone, 785 F.2d at 1121). DC has not established facts sufficient to obtain a protective order to preclude it from presenting a witness to testify on any of the Topics in Defendants' Notice. 9. The mere fact that Defendants may have served written discovery covering similar subjects or that the information sought may be available elsewhere does not bar Defendants from seeking 30(b)(6) testimony on these topics. 10. While I am a strong advocate for the application of Rule 1 of the Federal Rules of Civil Procedure, I find DCAG's unspecified argument relating to burden to be unpersuasive. III. THE SPECIAL MASTER'S FORMAL RECOMMENDATION 1. Under the circumstance of this MDL, and DC's voluntarily assumed role in it, written questions and answers are not a sufficient replacement for Rule 30(b)(6) deposition testimony. Written questions and answers do not allow a party to follow-up with real-time supplemental inquiries. Moreover, the time between responses, objections, and meet and confers, would cause to further delay this already drawn-out dispute. 2. Upon my reading of Topics 1 though 7, the topics described provide reasonable particularity and the deposition is reasonably calculated to lead to the discovery of admissible evidence. While it is not difficult to imagine that some of the information sought or the questions that may be posed as it relates to the Topics may call for legal conclusions or expert opinion, that possibility is not sufficient to preclude the deposition from taking place altogether. To the extent a question during the deposition potentially invades any privilege, DC's counsel is entitled to object to that question. Hopefully, the parties will inform the Special Discovery Master (and other masters if necessary) of the schedule for the deposition(s), to resolve any disputes that may arise during the deposition. *4 3. Therefore, I recommend that the Court order DC to identify, within fifteen (15) days of an Order stemming from this Seventeenth Report and Recommendation, one or more 30(b)(6) representatives who will be prepared to testify on Topics 1 through 7 in Defendants' Notice, and to provide three proposed dates for the deposition(s) to take place, which dates should be within thirty (30) days of this Court's Order.