ALLERGAN, INC., ALLERGAN PHARMACEUTICALS IRELAND UNLIMITED COMPANY, ALLERGAN USA, INC., AND ALLERGAN SALES, LLC Plaintiffs, v. REVANCE THERAPEUTICS, INC. Defendant Civil Action No. 3:23-cv-00431 United States District Court, M.D. Tennessee, Nashville Division Filed June 20, 2025 Presnell, Todd, Special Master ORDER OF THE SPECIAL MASTER RESOLVING JOINT STATEMENT ON ALLERGAN'S REQUESTS FOR PRODUCTION 201-213 AND 215–217 *1 This matter comes before the Special Master on the parties' February 19, 2025 Joint Statement to the Special Master (the “Joint Statement”), as supplemented on April 9, 2025 (“April 9, 2025 Supplement) and April 23, 2025 (“April 23, 2025 Supplement).[1] In the Joint Statement, the Plaintiffs (“Allergan”) challenge Revance Therapeutics, Inc.'s (“Revance”) objections to Allergan's Requests for Production (“RFPs”) 201–13 and 215–217. Allergan requests an order overruling Revance's objections to these RFPs and compelling Revance to produce responsive documents. Upon consideration of the parties' briefing and the relevant exhibits the parties submitted, the Special Master grants in part and denies in part Allergan's request for relief, and otherwise orders as follows. I. Issues Raised by the Joint Statement The parties and the Special Master are familiar with the background of this action generally. See, e.g., ECF No. 302 at PageID ## 5252–54. Allergan served several RFPs on Revance seeking evidence supporting its allegations that Revance misappropriated its trade secrets and of Revance's profit arising from this alleged misappropriation, including RFPs 201–213 and 215–217. Revance made various objections to each of these RFPs and has not produced any responsive documents, and Allergan now requests an order compelling the production of documents responsive to the following RFPs: RFP No. 201 202 203 204 205 206 207 208 209 210 211 212 213 215 216 217 Request All documents and communications exchanged between Revance Therapeutics, Inc. and Crown Laboratories, inc. or Reba Merger Sub, Inc. concerning this litigation. All memoranda and presentations that Revance Therapeutics, Inc. has provided to Crown Laboratories, Inc. or Reba Merger Sub, Inc. concerning Daxxify. Botox, or the proposed Botox Biosimilar. All meeting minutes from meetings held between Revance Therapeutics, Inc. and Crow Laboratories, inc. or Reba Merger Sub, Inc. concerning the acquisition of Revance Therapeutics, Inc. by Crown Laboratories, Inc. or Reba Merger Sub, Inc. All communications between Jeffrey Bedard and Mark Foley concerning the acquisition of Revance Therapeutics, Inc. by Crown Laboratories, Inc. or Reba Merger Sub, Inc. All communications between Skadden, Arps, Slate, Meagher & Flom LLP and Kirkland & Ellis LLP or Lowenstein Sandier LLP concerning the acquisition of Revance Therapeutics, Inc. by Crown Laboratories, Inc. or Reba Merger Sub, Inc. All documents and communications exchanged between Revance Therapeutics, Inc. and Crown Laboratories, inc. or Reba Merger Sub, Inc. concerning the botulinum toxin injectables market. All due diligence documents exchanged between Revance Therapeutics, Inc. and Crown Laboratories, Inc. or Reba Merger Sub, Inc. concerning the acquisition of Revance Therapeutics, Inc. by Crown Laboratories, Inc. or Reba Merger Sub, Inc. All financial forecasts concerning Daxxify or the proposed Botox Biosimilar that Revance Therapeutics, Inc. has provided to Crown Laboratories, Inc. or Reba Merger Sub, Inc. All documents and communications exchanged between Revance Therapeutics, Inc. and Crown Laboratories, Inc. or Reba Merger Sub, Inc. concerning Revance's proposed Botox Biosimilar product. All documents and communications exchanged between Revance Therapeutics, Inc. and Viatris, Inc. concerning the acquisition of Revance Therapeutics, Inc. by Crown Laboratories, Inc. or Reba Merger Sub, Inc. All agreements entered into between Revance Therapeutics, Inc. and Crown Laboratories, Inc. or Reba Merger Sub, Inc. The “Company Disclosure Letter” referenced in Revance Therapeutics, Inc., Form 8-K Exhibit 2.1 (Aug. 12, 2024). All documents and communications concerning Crown Laboratories, Inc. failure to offer a tender offer for Revance Therapeutics, Inc. by September 13, 2024. (See, e.g., Revance Therapeutics, Inc., Form 8-K (Aug. 29, 2024.)). All documents and communications between Revance Therapeutics, Inc. and Viatris, Inc. concerning this litigation. All documents and communications between Revance Therapeutics, Inc. and Viatris, Inc. concerning the reasons for the ownership transfer of Pre-IND 141804[2] to Viatris. All documents and communications between Revance Therapeutics, Inc. and Abhijit Barve, Walt Owens, Patrick Vallano, Jeffrey Smith, Joachim Maus, Gopinath Ranganna, Parag Goyal, Natalie Bolea, Julia Suerth, Daniel Ranayhossaini, and Uwe Niesner. II. Discussion *2 Revance makes several objections in its responses to RFPs 201-213 and 215-217 but argues only two objections pertaining to each set of RFPs in the Joint Statement.[3] Revance argues that RFPs 201–213 (1) seek irrelevant information and (2) are duplicative of RFPs to which Revance agreed to respond, including RFPs 71–72, 78, 81–90, and 173–179. See Joint Statement, at 4–6. Revance also argues (1) that RFPs 215–217 are duplicative of RFP 37, and (2) the common-interest doctrine protects from disclosure communications, sought by RFP 215, between Revance and Viatris “concerning this litigation.” See Joint Statement, at 6. A party is generally entitled to seek discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). But a court may limit discovery if, among other things, “the discovery sought is unreasonably cumulative or duplicative.” Fed. R. Civ. P. 26(b)(2). The party seeking discovery bears the initial burden of showing that the discovery sought is relevant. Staggs v. Panda Express, Inc., 3:24-cv-00010, 2024 WL 4509101, at *2 (M.D. Tenn. Oct. 16, 2024). If “the information sought appears to be relevant,” the burden shifts to the party resisting discovery to show “with specificity” why the requested discovery is irrelevant, not proportional to the needs of the case, or otherwise beyond the scope of Rule 26(b)(1). Id. A. RFPs 201-213 1. Relevance Allergan describes RFPs 201–213 as “seeking documents between Revance and Crown concerning this litigation; the products at issue in this case, including financial forecasts and the market for those products; as well as the acquisition of Revance by Crown” and “all agreements entered into between Revance and Crown, the ‘Company Disclosure Letter’ referenced but not included in public SEC filings about the acquisition, and documents concerning Crown's failure to offer its tender offer by the initial deadline of September 13, 2024.” Joint Statement, at 1 (citing Exhibit C). With respect to each of these RFPs, Allergan contends that “[t]here can be no genuine dispute that this information is relevant to this case, particularly with respect to damages as it tends to show valuation of Revance's business which is comprised solely of the products at issue in this case.” Joint Statement, at 1–2 (emphasis in original). The Special Master agrees that documents and communications between Revance and Crown relating specifically to the products at issue are relevant to the claims and defenses in this litigation. Accordingly, the Special Master finds that RFPs 201, 202, 208, and 209, which are tailored specifically to request documents relating to this litigation and/or the products at issue in this litigation, are relevant. Regarding the other RFPs, the Special Master has already held that documents relating to Revance's valuation are relevant to show damages under both the Defend Trade Secrets Act, 18 U.S.C. § 1836(B) and the Tennessee Uniform Trade Secrets Act, Tenn. Code Ann. § 47-25-1701 et seq. See ECF No. 304 at PageID ## 5291–92. But while Allergan contends broadly that the RFPs seek documents relevant to show damages, Revance correctly points out that the remaining RFPs are far broader in scope than only seeking information relating to the valuation of Revance's business. Joint Statement, at 5. For example, RFP 204 seeks “[a]ll communications between Jeffrey Bedard and Mark Foley concerning the acquisition of Revance Therapeutics, Inc. by Crown Laboratories, Inc. or Reba Merger Sub, Inc.” But Allergan does not explain Mr. Bedard or Mr. Foley's connection to the issues or how “all communications” between them concerning Revance's acquisition are relevant to any claim or defense. Allergan similarly does not articulate how the documents sought in RFPs 203, 205, 206, 207, 210, and 213 are relevant to any claim or defense.[4] *3 The Special Master finds that RFPs 201, 202, 208, and 209 seek relevant documents. However, Allergan has not made that showing with respect to the remaining RFPs at issue, including RFPs 203–207, 210, and 213. 2. Duplicative Discovery Revance argues that, even if RFPs 201-213 seek relevant information, they are “duplicative of other damages related discovery requests in response to which Revance has already agreed to produce documents,” including RFPs 71–72, 78, 81–90, and 173–179. Joint Statement, at 5. The Special Master disagrees that RFPs 201, 202, 208, and 209 are duplicative of previous RFPs. While Allergan contends that each of RFPs 201–213 are relevant to damages, RFPs 201, 202, 208, and 209 are not confined to seeking documents relevant to damages. For example, RFP 201 seeks documents and communications between Revance and Crown relating to the litigation generally. And to the extent that RFPs 201, 202, 208, and 209 seek documents relating to damages, Revance does not contend that they seek documents already produced in this case. The Special Master finds that the documents sought—which consist of documents and communications relating to the products at issue exchanged between Crown and Revance—are not duplicative of documents Revance has already agreed to produce relating to those products and Revance's financial information more broadly. B. RFPs 215–217 1. Duplicative Discovery The Special Master finds that RFPs 215–217 are not duplicative of RFP 37. RFP 37 requests “[a]ll communications between Revance and Viatris, Inc. (f/k/a Mylan N.V.) concerning Revance's proposed Botox Biosimilar product.” ECF No. 82–3 at PageID # 1081. RFP 37 therefore only seeks communications between Revance and Viatris concerning one product at issue in this action. RFPs 215–217 are broader. RFPs 215–17 seek both “documents and communications,” rather than just “communications,” making RFPs 215–217 broader than RFP 37 because of the types of documents sought alone without regard to subject matter. But RFPs 215–17 are broader than RFP 37 because of their subject matter as well. RFP 215 seeks documents “concerning this litigation,” which would seemingly cover all products at issue in this action. RFP 216 requests documents about “Pre-IND 141804,” which appears to be a developmental version of Revance's Botox biosimilar, and it is unclear whether “Pre-IND 141804” would fall into the definition of the term “Botox Biosimilar” as used in RFP 37 because neither party has provided the Special Master with the Definitions section of Allergan's RFPs. At the very least, Revance has not carried its burden of showing that RFP 216 is duplicative of RFP 37. See Staggs, 2024 WL 4509101, at *2. Finally, RFP 217 seeks documents and communications between Revance and specific Viatris employees with no limit as to subject matter. Revance has therefore not met its burden of showing that RFPs 215–217 are duplicative of RFP 37. 2. Objections Based on the Common-Interest Doctrine Regarding “RFP 215 in particular,” Revance objects to producing communications between its counsel and Viatris's counsel that concern “this litigation,” claiming that the common-interest doctrine protects those communications from discovery. Joint Statement, at 6. The Special Master previously ordered Revance to provide Allergan with a privilege log identifying documents it withheld from production based on an evidentiary privilege or other protection. Revance produced the privilege log, see April 9, 2025 Supplement, but Allergan challenges the log's adequacy under Federal Rule of Civil Procedure 26(b)(5)(A). *4 Rule 26(b)(5)(A)'s language does not expressly use the phrase “privilege log” but requires that a party withholding otherwise discoverable information on grounds that an evidentiary privilege or the work-product doctrine protects its disclosure must “expressly make the claim” and describe the withheld information “in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A)(i)–(ii). For communications, such as email or communications via messaging apps, this standard[5] typically requires the withholding party to identify (1) the claimed privilege or protection and (2) the communication's (a) date, (b) author or sender and all recipients, including their titles or positions, and (c) subject matter, recognizing that an email's subject line may provide an insufficient description. See GEP Admin. Servs., LLC v. Wiseman, No. 3:24-CV-00256, 2024 WL 5454570, at *4 (M.D. Tenn. June 11, 2024); Clark v. Louisville Jefferson Cnty. Metro Gov't, No. 3:17-CV-419-GNS-CHL, 2022 WL 4389549 (W.D. Ky. Sept. 22, 2022); Carhartt, Inc. v. Innovative Textiles, Inc., 333 F.R.D. 118 (E.D. Mich. 2019). Revance's March 31, 2025 privilege log does not meet this standard. Several entries do not identify the authors or recipients by name, title, or position. While Revance asserts that the common-interest doctrine protects from disclosure many, if not all, of the listed communications between it and Viatris, the privilege log does not identify whether Viastris's lawyers were authors or recipients of the listed communications. This lack of specificity renders it difficult for Allergan, or the Special Master, to “assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). The Special Master therefore orders that, on or before July 8, 2025, Revance serve upon Allegan and the Special Master a supplemental privilege log that identifies each putatively protected document by date, author and sender and their titles or positions, recipients and their titles or positions, the document's subject matter, and the privilege or other protection, such as the common-interest doctrine, that purportedly protects the documents from compelled disclosure. By July 11, 2025, Allergan and Revance shall each identify to each other twenty-five (25) entries on Revance's supplemental privilege log for in camera review by the Special Master. By July 18, 2025, Revance shall supply the maximum total of fifty (50) documents in camera to the Special Master, along with any brief and evidence, such as sworn declarations, deposition testimony, common-interest agreements, and the like, supporting its claims of privilege or other protection. By July 28, 2025, Allergan may file a response brief with any evidence supporting its opposition. The Special Master further orders Revance to produce all documents responsive to RFPs 216–217 and all nonprivileged documents responsive to RFPs 215, to the extent it has not already produced them, because of the finding that RFPs 215–217 are not duplicative of RFP 37 and Revance's failure to argue that a privilege or protection shields any documents sought by RFPs 216–217. See Joint Statement, at 6. III. Conclusion In accordance with the foregoing, the Special Master hereby ORDERS that: 1. The relief Allergan requests in the parties' February 19, 2025 Joint Statement is GRANTED in part and DENIED in part as follows: a. Revance's objections to Allergan's Requests for Production 201, 202, 208, and 209 are OVERRULED. Revance is ORDERED to fully respond to these Requests for Production by July 11, 2025. *5 b. Revance's objections to Allergan's Requests for Production 203–207, 210, and 13 are SUSTAINED and Allergan's request to compel further responses to Requests for Production 211 and 213 is MOOT. c. Regarding Requests for Production 215-217, Revance shall produce responsive, non-privileged documents on or before July 11, 2025. On or before July 8, 2025, Revance shall serve a supplemental privilege log upon Allergan and the Special Master that identifies each putatively protected document by date, author and sender and their titles or positions, recipients and their titles or positions, the document's subject matter, and the privilege or other protection, such as the common-interest doctrine, that purportedly protects the documents from compelled disclosure. By July 11, 2025, Allergan and Revance shall each identify to each other twenty-five (25) entries on Revance's supplemental privilege log for in camera review by the Special Master. By July 18, 2025, Revance shall supply the maximum total of fifty (50) documents in camera to the Special Master, along with any brief and evidence, such as sworn declarations, deposition testimony, common-interest agreement, and the like, supporting its claims of privilege or other protection. By July 28, 2025, Allergan may file a response brief with any evidence supporting its opposition. 2. The Special Master has filed separately and contemporaneously with this Order all the briefing and exhibits it reviewed in conjunction with this Order. The Special Master filed the April 9, 2025 Supplement under seal because it was designated as “highly confidential.” Within fourteen (14) days of the entry of this Order, any party who desires for any material filed under seal in conjunction with this Order to remain under seal SHALL file a motion to seal with the Court pursuant to Local Rule 5.03. 3. Pursuant to paragraph three of the Court's Order Modifying Case Management Order and Granting Request for the Appointment of a Special Master, the parties have twenty-one (21) days from the date of entry of this Order to file objections or a motion to adopt or modify any of the Special Master's rulings in this Order. IT IS SO ORDERED. Footnotes [1] The parties' Joint Statement with exhibits attached thereto, the April 9, 2025 Supplement, and the April 23, 2025 Supplement are being filed on the docket as separate docket entries contemporaneously with this Order. [2] It is not entirely clear from the parties' briefing exactly what “Pre-IND 141804” is. It is not defined in Exhibit C to the Joint Statement, and the Special Master is unable to locate any reference to it in the Complaint. The most detail either party provides about it is in Allergan's portion of the Joint Statement, where Allergan says it is a “pre-investigational new drug (“pre-IND”) which is specific to [Revance's] proposed Botox Biosimilar.” Joint Statement, at 3. Allergan therefore appears to assert that “Pre-IND 141804” is a developmental version of the biosimilar version of Botox that Revance is allegedly developing. Revance does not dispute Allergan's characterization of “Pre-IND 141804.” [3] The Special Master does not address the validity of any of Revance's objections that it did not argue in the Joint Statement An argument that a litigant does not raise, either in a district court or on appeal, is waived. Humphrey v. U.S. Atty. Gen. 's Off., 279 F. App'x 328, 331 (6th Cir. 2008). [4] On April 23, 2025, Revance notified the Special Master that it had produced 22 documents responsive to RFPs 211 and 212 and stating that this production renders Allergan's dispute concerning these RFPs moot. See April 23, 2025 Supplement. Allergan did not respond to that assertion. The Special master therefore rules that Revance has satisfied its response to RFPs 211 and 212 and denies Allergan's request for the production of additional documents allegedly responsive to these RFPs. [5] This standard applies to traditional, or document-by-document, privilege logs. Each of these items may not be applicable when parties elect to supply a categorical privilege log, metadata log, or metadata plus log. See generally The Sedona Conference, Commentary on Privilege Logs, 25 Sedona Conf. J. 221 (2024).