LIFESCAN, INC., et al., Plaintiffs, v. JEFFREY C. SMITH., et al., Defendants ROCHE DIAGNOSTICS CORPORATION, et al., Plaintiffs, v. JEFFREY C. SMITH., et al., Defendants Civil Action No. 17-5552 (CCC)(JSA), 19-8761 (CCC)(JSA) United States District Court, D. New Jersey Filed February 01, 2024 Cavanaugh, Dennis, Special Master (Ret.) ORDER & OPINION OF THE SPECIAL MASTER JUDGE DENNIS CAVANAUGH, RET. AS TO THE MEDSOURCE ENTITIES’ MOTION TO COMPEL LIFESCAN TO SUPPLEMENT DISCOVERY *1 Defendants, the Medsource Entities (“the Medsource Entities” and/or “Defendants”)[1], move to compel Plaintiff, LifeScan, Inc. (“LifeScan”) to supplement certain discovery responses. The Medsource Entities contend that LifeScan has merely provided boilerplate objections in response to requests for production of documents and interrogatories. In analyzing this motion, the Special Master has reviewed and considered the following: The Medsource Entities’ letter brief and exhibits in support of its motion to compel dated March 17, 2023; LifeScan's letter brief in opposition dated April 12, 2023; The Medsource Entities’ reply brief; LifeScan's letter to the Special Master related to the motion to compel dated May 30, 2023; The Medsource Entities’ letter to the Special Master concerning the disputes dated May 30, 2023; and The Medsource Entities’ letter to the Special Master updating the court as to the discovery disputes dated June 5, 2023. For the reasons set forth below, it is the finding of the Special Master that the Medsource Entities’ motion is DENIED. I. Procedural History and Factual Background As the Special Master writes primarily for the benefit of the parties, the court will only address the pertinent procedural and factual events which form the basis of this motion. This particular set of discovery disputes has a tangled history. On March 17, 2023, the Medsource Entities filed the underlying motion with the Special Master. Initially, Defendants moved to compel Plaintiff LifeScan, Inc. to supplement (1) its document production; (2) certain interrogatory answers; and (3) its records custodians. The Medsource Entities contended that LifeScan in response to these discovery requests had merely provided boilerplate objections, asserting the absence of relevancy and/or “undue burden” as to the requests for production of documents and interrogatories. Prior to the resolution of this motion, however, the parties and the Special Master addressed these disputes during the course of a status conference. The Court directed the parties to continue efforts to resolve the disputes by way of meet and confers and the motion was temporarily withdrawn. During the ensuing months, the parties updated the court as to the status of their negotiations. Although certain disputes were resolved, others still remain unresolved and the parties are at an impasse. It is the Special Master's understanding based upon the parties’ supplemental submissions that disputes still exist as to one interrogatory (interrogatory 11) and three requests for production (RFPs 19, 20 and 21). As a consequence, Defendants have renewed their motion. The Special Master will turn to the parties’ positions as to these discovery responses. II. The Medsource Entities’ Argument *2 The Medsource Entities were named as defendants when LifeScan filed its second amended complaint on July 5, 2019. On December 20, 2019, Defendants served discovery demands on LifeScan which Plaintiff answered on January 27, 2020. From that point forward, the parties engaged in meet and confers and traded discovery deficiency letters but, according to Defendants, LifeScan's responses remained unchanged. The Medsource Entities maintain that the issues here are premised on a “fundamental disagreement” with LifeScan as to whether Defendants “have a right to defend themselves.” This hinges on the fact that when LifeScan filed its SAC, the Medsource Entities chose to file a Rule 12(b)(6) motion rather than an answer. This motion remained pending until September 30, 2022, when the District Court denied the Medsource Entities’ application. On November 18, 2022, the Medsource Entities filed their answer – a lengthy, detailed pleading containing 30 pages of defenses and, prominently, antitrust defenses. At this point, the Medsource Entities say they “assumed” that LifeScan would supplement its responses to address the asserted defenses, which had changed the scope of the litigation, but LifeScan failed to do so. Effectively, it is the Medsource Entities’ position that LifeScan's “improper market behavior” precludes its claims and, therefore, Defendants have a right to compel discovery related to their affirmative defenses, including an antitrust defense. Citing Kaiser Steel Corp. v. Mullins, 45 U.S. 72 (1982), the Medsource Entities state that they are entitled to assert these defenses but have been hampered due to LifeScan's unwillingness to provide the requested discovery. In response to those discovery requests, the Medsource Entities say, LifeScan argues that Defendants can wait for discovery until the pending motion to strike is resolved. This position, say Defendants, contradicts LifeScan's prior argument, that is, LifeScan had urged that discovery should move ahead irrespective of the Medsource Entities’ then pending motion to dismiss. The Medsource Entities assert that under Fed. R. Civ. P. 26(b)(1), the parties may obtain discovery of any non-privileged matter relevant to any party's claim or defense and proportional to the needs of the case. Once a party issuing discovery shows relevancy, the burden shifts to the resisting party to demonstrate the request is overly broad, burdensome, oppressive and irrelevant. Josephs v. Harris Corp., 677 F. 2d. 985, 992 (3rd Cir. 1982). The resisting parties must specify how each discovery request is not relevant, overly broad, burdensome or oppressive. Microsoft Corp. v. Sofiticle.com, No. 2:16-CV-2762, 2017 U.S. Dist. LEXIS 163453, 2017 WL 4387376, at *3 (D.N.J. Oct. 2, 2017). The resisting party shall use common sense and reason, and hyper-technical, quibbling or evasive objections will be viewed unfavorably. Id. Only after a specific objection has been stated does the court weigh proportionality. In doing so, the court must consider (1) the importance of the issues at stake; (2) the amount in controversy; (3) the party's relative access to information; (4) the party's resources; (5) the importance of discovery in resolving issues; and (6) whether the burden or expense of obtaining discovery outweighs its likely benefit. Lincoln Adventures, LLC v. Those Certain Underwriter at Lloyd's London Members of Syndicates, No. 08-cv-235, 2020 U.S. Dist. LEXIS 262669, 2020 WL 13158012, at *3 (D.N.J. Oct. 14, 2020). *3 The Medsource Entities argue that LifeScan has employed boilerplate objections to the discovery requests by disingenuously stating that the requests are not relevant to the claims in the case or constitute an undue burden in responding. This fact alone, say the Medsource Entities, warrants the entry of an order compelling appropriate responses. Nevertheless, all six proportionality factors weigh against LifeScan. That is, (1) the stakes of the action are high as it calls into question “the entire business model of the blood glucose test strip market”; (2) the amount in controversy exceeds $144 million not including exemplary damages and attorney's fees; (3) LifeScan has near complete access to relevant information since it created those documents; (4) LifeScan's resources are substantial as it is one of the largest manufacturers of DTS with a market valuation of $2.1 billion; and (5) the document production sought is crucial to the Medsource Entities providing a factual foundation for their defenses. As to the sixth factor, the burden versus benefit, the Medsource Entities maintain that the discovery requests do not constitute an undue burden and are limited (both in time and scope) to sales and distributions of DTS only. The Medsource Entities do not, for example, seek discovery which touches upon the manufacturing of the test strips, shipping, storing, communicating with suppliers or research and development of the strips. The discovery does not impinge on other aspects of LifeScan's business decisions related to the sale, i.e., there are no requests for documents on the company's reporting obligations, no requests about LifeScan's digital-health partnerships, no requests regarding communications to physicians and other providers, etc. The movant has grouped the discovery requests under similar topic areas. Very briefly stated, those demands (identified as “disputes”) are: (1) RFP 19: All documents concerning the sale of test strips with Express Scripts for mail order business; (2) Interrogatory 11: Description of LifeScan's efforts as to formulary placement of strips with Express Scripts and other PBMs, rebates under these arrangements, the identification of three individuals most knowledgeable about the company's efforts and negotiations to establish formulary placements; and (3) RFP 20 and 21: Documents relating to the basis for disparate pricing of identical test strips, the difference in cost of selling identical test strips through different sales channels, a description of LifeScan's pricing structure and rationale for the difference in pricing between the strips. The Medsource Entities urge they are entitled to discovery on the topics set forth above, either collectively or individually. They insist that the information derived from these requests is essential to many defenses including contributory and comparative negligence, unclean hands due to LifeScan's violation of “Any-Willing-Provider” statutes and for violation of antitrust laws. Defendants devote much of their argument to describing how LifeScan engaged in conduct to deliberately prevent companies, such as Alliance[2], from engaging in the mail order segment of the diabetic test strips (DTS) market and monopolized that market in violation of antitrust statutes, specifically the Sherman Act and the Robinson-Patman Act (15 U.S.C. § 2 and 15 U.S.C. § 13, respectively). Defendants contend that LifeScan created an illegal business relationship with Express Scripts, a pharmacy benefit manager (PBM) to exclude competitors. The collusion hinged on the sale of “retail” test strips to Express Scripts with extensive rebates paid to that company in return for preferred formulary position. Had this not occurred, “Alliance could have operated a mail order business and not engaged in conduct LifeScan alleges as ‘fraudulent’ in its complaint.” Hence, LifeScan should not be permitted to shield discovery as to its negotiations for preferred-formulary rebates with PBMs and doing so impacts Defendants’ unclean hands defense and violation of “Any-Willing-Provider” statutes. [RFP 19, Interrogatory No. 11.] *4 Defendants say they are also entitled to information regarding different prices in different markets for identical strips, which they allege, violates Food & Drug Administration (FDA) rules. Similarly, the conduct constitutes violation of the antitrust laws (Robinson-Patman Act) discriminating between purchases of products of identical grade and quantity. LifeScan's refusal to provide discovery regarding spread pricing is inappropriate as this goes to the Medsource Entities’ defenses based on discriminate pricing of identical products. [RFP 20.] In summary, the Medsource Entities contend that they are entitled at this point of the litigation, having filed an answer with affirmative defenses, to obtain relevant discovery related to those defenses but LifeScan refuses to do so. III. LifeScan's Opposition Plaintiff describes the Medsource Entities efforts as an “offensive” strategy to convert a RICO action into a “sprawling antitrust case.” LifeScan points out that the antitrust claims are so weak, Defendants have not even pleaded them as counterclaims. Nevertheless, Defendants seek to compel responses to broad requests that have nothing to do with Alliance. Instead of filing counterclaims, Defendants have asserted affirmative defenses premised on LifeScan's alleged misconduct in marketing DTS. None of these overlapping theories as to antitrust violations are viable. For example, the contention that LifeScan engaged in price discrimination in violation of the Robinson-Patman Act, is meritless since courts have rejected the argument that selling different products in different channels runs afoul of the Act, citing Liberty Lincoln-Mercury v. Ford Motor Co., 134 F. 3d. 557, 572 n. 20 (3d Cir. 1998) and other decisions. LifeScan points to the procedural history in this matter in support of its position. Succinctly stated, in December 2019, the Medsource Entities propounded interrogatories and production requests at the heart of this motion. In January 2020, LifeScan served its responses and objections. Despite having received LifeScan's objections more than three years ago, the Medsource Entities have waited until now to seek intervention. The moving parties sat by while co-defendant Zions filed multiple motions seeking document discovery. Additionally, LifeScan and Zions continually negotiated the scope of Plaintiff's searches while LifeScan voluntarily added custodians, incurring significant discovery costs. Only now, after LifeScan has substantially completed production, do the Medsource Entities move to compel. Generally speaking, the Medsource Entities do not contend that the subject discovery is relevant to claims against them. Instead, they argue it will help them establish that LifeScan violated Federal antitrust law and New Jersey's Any-Willing-Provider law. The antitrust violations, however, do not constitute defenses to Plaintiff's claims, nor impunity. Furthermore, even if the Medsource Entities’ antitrust claims were sustainable, “commencing a broad-ranging inquiry into ‘the entire business model’ of the entire ‘test strip market’ six years into this litigation would be unduly burdensome and grossly disproportionate to the needs of the case.” Plaintiff then turns to the specific requests sought by the MedSource Entities: Plaintiff says that Defendants are not entitled to voluminous document discovery concerning LifeScan's pricing strategy. [RFP 20 and 21.] Even in cases where antitrust claims have been pleaded, discovery as to a party's general business operations is considered unduly burdensome and must be limited to precise issues in litigation. In Re ATM Fee Antitrust Litig., No. 04-02676, 2007 U.S. Dist. LEXIS 47943, 2007 WL 1827635, at *2 (N.D.Cal. June 25, 2007) Discovery concerning LifeScan's pricing and costs of selling test strips through different sales channels has no bearing on Defendants’ illegality defense. Plaintiff has already produced documents relating to FDA regulations and the use of NDC codes. Moreover, the law does not prohibit LifeScan's use of those codes so these practices cannot form a contributory negligence defense. The channel marketing practices cannot contribute to such a defense because Defendants’ fraud consisted in exploiting those practices, i.e., no contributory negligence defense permits a party to blame victims for creating a tempting opportunity for illegality. Additionally, RFP 20 is overbroad, seeking documents relating to “any rationale” for LifeScan's channel distribution model. Plaintiff says Defendants are not entitled to compel LifeScan to produce all documents concerning the sale of DTS to Express Scripts for mail order business. [RFP 19.] This request is also not proportional and the burden/expense outweighs its benefit. Defendants seek these to support defenses that LifeScan's claims are barred under state Any-Willing-Provider laws and support violations of antitrust law. However, New Jersey's statute does not apply to LifeScan but only to group or individual hospital service corporation contracts, citing N.J.S.A. § 17:48-6J(a). Nor do Defendants, who are neither pharmacies nor pharmacists, have rights under the statute. As to the antitrust defense, if Alliance pharmacies were denied the ability to obtain reimbursement for mail order DTS, the remedy was to bring claims under antitrust laws – not commit fraud. Plaintiff also contends that the very wording of this request would impose an undue burden upon the company to produce “all documents concerning” communications with Express Scripts, including those from additional custodians, resulting in huge discovery costs. Defendants seek an interrogatory answer as to details regarding LifeScan's efforts to establish preferred formulary placement and to identify three individuals most knowledgeable about such placement. [Interrogatory 11.] Defendants say that this information also relates to its affirmative defenses because it might support the conclusion that LifeScan conspired to exclude companies like Alliance from the mail order DTS market. Plaintiff reiterates that New Jersey's Any-Willing-Provider law is inapplicable. Plaintiff further urges that the Court reject Defendants suggestion that they were legally permitted to engage in a criminal enterprise because PBMs limited the Alliance pharmacies’ ability to obtain reimbursement for mail order DTS. Defendants’ theory regarding formulary negotiations is speculative since LifeScan could not monopolize the mail order business, i.e., it was not a competitor to any mail order pharmacy and had no control over which entities would receive reimbursement. The interrogatory also seeks a description of negotiations with both ESI and other PBMs who are not, even under Defendants’ theory, a party to any illegal agreement. Finally, providing details of LifeScan's efforts to secure formulary status would impose substantial cost and burden and LifeScan has already produced contracts between ESI and LifeScan which form the entire agreement between those entities. In short, LifeScan maintains that the Medsource Entities seek orders compelling responses to requests that are irrelevant to the issues to be decided and disproportional to the needs of the case. IV. Medsource Entities’ Reply In their reply, the Mesource Entities argue that (1) their affirmative defenses are valid; (2) this motion to compel was timely; (3) LifeScan speculates about discovery costs; and (4) LifeScan argues the affirmative defenses are without merit. LifeScan mistakes this motion to compel as a motion to strike and asserts that the MedSource Entities’ affirmative defenses are insufficient. However, this is not a motion to strike and, as such, the analysis of “relevance” differs. That is, Defendants must merely show that the sought-after discovery is relevant to their defenses and proportional to the needs of the case. *6 The Medsource Entities stress that Plaintiff has flipped-flopped on this issue by arguing against delaying discovery when Defendants had filed a motion to dismiss Plaintiffs’ second amended complaint. When that motion was pending, the court pushed ahead with discovery finding no reason to delay doing so in the face of a dispositive motion. Thereafter, the Medsource Entities engaged in “robust discovery” solely based on LifeScan's initial pleading. Defendants’ initial pleading – in the form of their answer and affirmative defenses – should be treated in the same manner. As to timeliness, the Medsource Entities state that discovery is ongoing with recent document productions and pending motions. Addressing decisions cited by LifeScan, Defendants point out that in each of those cases, the party moving to compel did so within days before the close of fact discovery. Additionally, this litigation was halted as a consequence of the pandemic. While LifeScan took the position that the discovery Defendants seek has never been relevant to any claim in the case, the Medsource Entities anticipated that Plaintiff would no longer stand on this objection once an answer had been filed with affirmative defenses. When LifeScan failed to withdraw this objection, Defendants swiftly filed this motion to compel. As to LifeScan's position that producing the requested discovery is costly, Defendants state that this is only one of six proportionality factors. LifeScan has failed to provide any concrete cost calculation and indeed the parties have not even come to an agreement as to search terms. Consequently, LifeScan's contention that the production would be costly is guess work. On the other hand, say Defendants, all of the other proportionality factors still weigh in their favor and LifeScan has failed to address them directly in opposition. Finally, the Medsource Entities take on LifeScan's arguments about the sufficiency of each of the affirmative defenses, even though they maintain the validity of those defenses is without relevance to a motion to compel under Fed. R. Civ. P. 26(b)(1). The Medsource Entities assert the following: As to the validity of a claim under New Jersey's Any-Willing-Provider statute, pharmacies are included under that statute, citing N.J.S.A. § 17:48-6J(a)(2), i.e., “no pharmacy or pharmacist shall be denied the right to participate as a preferred provider...” Therefore, the plain language protects pharmacies from arbitrary exclusion from networks. Additionally, the legislative history demonstrates that the statute applies to pharmacies. As to interrogatory No. 11, Defendants assert that their well pled allegations explain how LifeScan conspired with Express Scripts to monopolize the DTS market. Therefore, negotiations as to preferred formulary placement go the heart of this antitrust defense. As to differential DTS pricing, Defendants do not seek discovery related to general business operations but solely to different pricing for identical test strips. LifeScan's actions violate the Robinson-Patman Act (pointing to a 2022 policy statement by the FTC), hence this is a viable defense. Finally, in light of LifeScan's claims that it acted properly as to NDCs (not prohibited on medical devices), the facts show LifeScan added additional digits, so there is an issue whether the company acted improperly by adding these numbers. LifeScan misconstrues Defendants’ request as to discovery relating to test strip pricing, i.e., Defendants only seek documents related to spread pricing – not every communication with PBMs as to pricing generally. LifeScan produced documents from only six custodians and should be compelled to produce documents from three non-custodians identified as knowledgeable. V. Analysis and Findings As set forth previously, by way of this motion, the Medsource Entities seek to compel LifeScan to supplement three requests for production and one interrogatory. LifeScan urges that the discovery demands are not directed at legitimate defenses to its allegations, but seek broad information relevant only to unsupportable “offensive” claims, principally allegations that LifeScan violated anti-trust laws. Given this, the Special Master will address the specifics of the demands. As to the RFPs, neither party has provided the Court with a copy of the production demands or with LifeScan's initial responses. However, in the Medsource Entities’ letter brief in support of their motion, Defendants have extensively quoted the RFPs in dispute while providing as an exhibit LifeScan's October 19, 2021 letter addressing “certain purported deficiencies in LifeScan's responses to your clients’ Requests For Production and First Set of Interrogatories.”[3] Based upon this, the disputed requests for production and LifeScan's responses to each (as contained in its letter of October 19, 2021) read as follows: RFP 19: All Documents concerning the sale of Test Strips, directly or indirectly, to Express Scripts for mail order business. LifeScan stands on its objections to this request, which seek documents that are entirely irrelevant to LifeScan's claims in this case. To the extent that Express Scripts is relevant to this matter, it is only as a PBM to which Alliance Pharmacies submitted fraudulent reimbursement claims, not as an alleged purchaser of LifeScan's test strips. RFP 20: Documents and communications relating to any rationale for disparate pricing of identical Test Strips between mail order, retail and any other channel for selling Test Strips, including but not limited to any and all discussions with any competitors (e.g., Roche) on these topics. LifeScan stands on its objections to this request, which seeks documents that are wholly irrelevant to LifeScan's claims in this matter. See Dkt. 500 at 9-10. LifeScan's “rationale[s]” for utilizing different distribution channels are beside the point: It is illegal for defendants to defraud LifeScan by pretending to have dispensed products other than what was actually dispensed. RFP 21: Documents related to the difference in cost to LifeScan of selling identical Test Strips through different sales channels, including but not limited to mail order and retail sales channels. LifeScan stands on its objections to this request, which is overbroad and primarily seeks documents that are irrelevant to LifeScan's claims in this matter. See Dkt. 500 at 9-10. To the extent that relevant documents are responsive to this request, the request is entirely duplicative of the Hughes Entities’ other damages-related requests (and the damages-related requests [of] other Defendants), including RFPs numbers 33 and 34. As to the final disputed discovery demand, interrogatory number 11, the interrogatory and answer read as follows:[4] *8 INTERROGATORY NUMBER 11: Describe in detail LifeScan's efforts to establish exclusive or preferred formulary placement for LifeScan Test Strips and Express Scripts and other PBMs and the rebates paid under such arrangements, and identify the three individuals of LifeScan most knowledgeable about LifeScan's efforts and negotiations to establish such formulary placements. RESPONSE TO INTERROGATORY NUMBER 11: LifeScan incorporates by reference...the Preliminary Statement, General Objections, Objections to Definitions, and Objections to Instructions set forth above. LifeScan further objects to this interrogatory as vague and ambiguous. Specifically, LifeScan objects to the interrogatory as vague and ambiguous, including as to, among other things, the terms “other PBMs” and “such formulary placements” and the phrase “LifeScan's efforts to establish exclusive or preferred formulary placement for LifeScan Test Strips.” LifeScan further objects to this interrogatory as it is compound and contains subparts. LifeScan further objects to this interrogatory to the extent it seeks information that is neither relevant nor likely to lead to the discovery of admissible evidence respecting the claims or defenses in this litigation. Subject to and without waiving the foregoing General and Specific Objections, reserving all rights and objections, and without waiver of any applicable privilege or protection, each of which is expressly reserved, and based on the information currently known and available to LifeScan, LifeScan provides the following response: On January 15, 2020, subject to objections, LifeScan produced PBM Agreements and LifeScan therefore directs Medsource to that production. Undoubtedly, this motion is governed by Fed. R. Civ. P. 26 and the cases interpreting that rule, a premise to which the parties fundamentally agree. Specifically, Rule 26(b)(1) addresses the scope of discovery and its limits. It provides: Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, 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 discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. The information within this scope of discovery need not be admissible in evidence to be discoverable. As a general notion, Rule 26 is to be construed liberally in favor of disclosure since relevance is a broader inquiry at the discovery stage than at the trial stage. Tele-Radio Sys. Ltd. v. DeForest Elecs., Inc., 92 F.R.D. 371, 375 (D.N.J. 1981). Put another way, it is “well recognized that the federal rules allowed broad and liberal discovery.” Pacini v. Macy's, 193 F. 3d 766, 777-78 (3d Cir. 1999). However, while relevant information may not be admissible at trial in order to grant disclosure, the burden remains on the party seeking discovery to “show that the information sought is relevant for the subject matter of the action and may lead to admissible evidence.” Carver v. City of Trenton, 132 F.R.D. 154, 159 (D.N.J. 2000). When establishing the parameters of discovery relevance, it is the claims and defenses of the parties, in the complaint and other pleadings, which set the guardrails for discoverable information. Nat'l Union Fire Ins. Co. of Pittsburg, PA v. Becton, Dickenson & Co., No. 14-4318, 2019 U.S. Dist. LEXIS 68536, 2019 WL 1771996, at *3 (D.N.J. Apr. 23, 2019). *9 Therefore, the burden falls upon the moving party to show that the information sought is relevant to that party's claims and defenses at the heart of the lawsuit. It clearly appears to the Special Master that the parties have reached an impasse as to these discovery disputes primarily by virtue of the fact that LifeScan takes the position – and has consistently taken the position – that the Medsource Entities’ affirmative defenses are not legally viable. LifeScan charges that the defenses are not actually defenses at all but represent a strategic decision to go on the offensive by charging LifeScan and the PBM Defendants with antitrust violations. LifeScan argues that this broad discovery which the Medsource Entities now seek (belatedly) is only useful in support of affirmative defenses to which the Medsource Entities are unentitled. Therefore, Defendants are moving to compel responses to overly broad requests and requests which have nothing to do with Alliance or the fraud LifeScan charges Alliance conducted with the knowledge and acquiescence of the defendants, including the Medsource Entities. Simply put, LifeScan maintains the discovery demands are irrelevant and burdensome. As the parties recognize and indeed comment upon in their submissions, the resolution of this motion is complicated by the fact that the issues to be resolved here are inextricably tied to another pending motion -- LifeScan's motion to strike the Medsource Entities’ (“the Hughes parties’ ”) affirmative defenses. In that motion, LifeScan seeks to dismiss the very same affirmative defenses at which the Medsource Entities’ discovery demands are aimed – the alleged illegality of Plaintiff's business practices, anti-trust violations, violations of FDA rules, “unclean hands,” and “in pari delicto.” Additionally, in that motion, LifeScan asserts that the challenged affirmative defenses would prejudice Plaintiff to the extent that additional discovery would be permitted. Therefore, as a practical matter, LifeScan's responses to the discovery demands at issue in this motion can only bear upon and will only bear upon the Medsource Entities’ defenses if and only if one or more of those defenses survive LifeScan's motion, i.e., if they are not struck. This is no small thing. The discovery which the Medsource Entities seek is likely to be substantial and, as LifeScan argues, has the potential to move this litigation in another direction. In fact, the Medsource Entities assert as much. In fact, the Medsource Entities concede this, i.e., Defendants say, in support of their argument for production, that the stakes in this action are high since their defenses call into question “the entire business model of the blood glucose test strip market” and by asserting these affirmative defenses, Defendants have changed the scope of this litigation. Therefore, in the Special Master's view, permitting discovery of this nature at this time while LifeScan's motion to strike the defenses is pending, has significant and perhaps unalterable consequences. As previously noted, the Medsource Entities stress that the information to be derived from the discovery requests is crucial to a number of defenses including violation of antitrust laws (for example, the Robinson-Patman Act, 15 U.S.C. § 13) and what Defendants contend is LifeScan's violation of “Any-Willing-Provider” statutes. LifeScan, say Defendants, concocted an inappropriate business deal with pharmacy benefit managers (principally Express Scripts) to exclude competitors which operated against Alliance's interests. Hence, in the Special Master's opinion permitting Defendants to explore this discovery now with LifeScan's motion to strike pending is imprudent and impractical. *10 And indeed, the Medsource Entities’ discovery demands are admittedly broad and seek to encompass Defendants’ assertion that LifeScan's entire business model is an illegal construct. That is, Defendants seek “documents and communications relating to any rationale for disparate pricing”; “retail and other channel for selling” strips; “documents related to cost differences in selling identical strips through different channels”; and a detailed description of “LifeScan's efforts to establish...preferred formulary placement” with PBMs. LifeScan's motion seeking to strike the Medsource Entities’ affirmative defenses was originally filed with the District Court. Since that time, and during the period of time in which the parties attempted to resolve these disputes and when this motion was temporarily withdrawn, LifeScan's dispositive motion has been transferred to the Special Master to be resolved. Therefore, it is the finding of the Special Master that a resolution of the Medsource Entities’ discovery motion should be deferred pending the Court's decision as to LifeScan's motion to strike the affirmative defenses.[5] Therefore, for the reasons set forth above, the Medsource Entities’ motion to compel LifeScan to supplement discovery is DENIED. VI. Conclusion Therefore, for the reasons set forth above, the Medsource Entities’ motion to compel LifeScan to supplement discovery is DENIED. Footnotes [1] The Medsource Entities collectively refers to defendants HS Medsource Hold Co., LLC, Kesman Hughes & Company, LLC, and Hughes & Company and Hughes & Company Investment Partners, LLC (improperly pled as two different entities). [2] Alliance (“Alliance Medical Holdings”) is the now-defunct corporation at the center of this litigation which LifeScan claims engaged in a scheme to defraud Plaintiff with respect to the sales and distribution of DTS. The Medsource Entities were investors in Alliance. LifeScan charges Defendants were knowledgeable about and complicit in the scheme. [3] See Defendants’ letter brief in support of motion, pp. 2-3, and Exhibit 1. [4] See Defendants’ Exhibit 15, pp. 23-24. [5] The Special Master would also like to note, as LifeScan emphasizes, that Plaintiff's responses to the disputed demands were served more than three years ago. Over the ensuing years, discovery disputes have arisen among the parties and other litigants, principally Zions, have filed motions when faced with discovery impasses. Given this, Defendants cannot cogently assert that there exists an urgent need for supplemental responses to discovery demands which were originally provided in January 2020.