United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE
case involves allegations that the Defendants settled patent
litigation over the ADHD drug Intniv on anticompetitive
terms. The Indirect Purchaser Plaintiffs (“IPPs”)
are parents and caretakers who purchased Intuniv or generic
Intuniv for a child's or ward's medical
needs. The IPPs claim that the Defendants engaged
in sham patent litigation over Intuniv, and then settled that
litigation on terms that delayed competition for both brand
Intuniv, manufactured by Shire, and generic Intuniv,
manufactured by Actavis.
the Court are the IPPs' motion for a protective order and
to quash discovery of their children's and wards'
(“Minors”) medical records and Defendants Shire
and Actavis' joint motion to compel discovery of the
Minors' medical records. [ECF Nos. 114, 116]. The IPPs
also request fees and costs. [ECF No. 114-1 at 17-18]. For
the reasons explained below the motions are DENIED in
part and GRANTED in part.
Defendants have been attempting to obtain discovery since
November 2017 as to the factors that influenced the IPPs'
selection of Intuniv, including potential alternative
treatments and price. The IPPs have resisted discovery into
the Minors' medical, pharmaceutical, and health insurance
records (collectively “medical records”) on
grounds of irrelevance, undue burden, and privilege. The IPPs
produced heavily redacted pharmacy records to demonstrate
that they purchased branded or generic Intuniv but declined
to make additional productions, provide complete responses to
interrogatories, or authorize non-parties to produce medical
IPPs request that the Court quash a third-party subpoena
served on Dr. Steven J. Auster, a medical service provider in
this district, issue a protective order prohibiting the
Defendants from further prosecution of non-party subpoenas
issued to the Minors' healthcare providers, and order the
Defendants to pay their fees and costs. Conversely, the
Defendants request an order requiring the IPPs to: (i)
produce executed authorizations pursuant to Actavis'
Demand for Authorizations (“DFA”) to allow the
Defendants to obtain the IPPs' medical records,
see [ECF No. 118-5]; (ii) provide full responses to
Shire's Interrogatories Nos. 1-3, 9, and 10, see
[ECF No. 118-3]; (iii) produce documents responsive to
Shire's Requests for Production (“RFP”) Nos.
1-4, see [ECF No. 118-4]; and (iv) produce complete
and unredacted versions of the prescription records that the
IPPs have produced to date. [ECF No. 116 at 2-3]. DFA No.
and Shire's RFP No. 2 could lead to the production of
communications between the Minors and their therapists, while
the other requests are more narrowly tailored and will not
result in the production of such communications. See
[ECF Nos. 118-2, 118-3, 118-4, 118-5].
legal issues are whether the Minors' medical records are
relevant to the claims in this case, whether the
Defendants' requests impose a burden that is
disproportionate to the needs of the case, and whether the
requested materials are privileged.
“Parties may obtain 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). Discovery “is
designed to help define and clarify the issues.” In
re New England Compounding Pharmacy, Inc. Prods. Liab.
Litig., MDL 13-2419-FDS, 2013 WL 6058483, at *3 (D.
Mass. Nov. 13, 2013) (quoting Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978)).
IPPs claim standing to sue and damages because they paid
higher co-pays for Intuniv than they would have paid absent
the Defendants' conduct, which the IPPs argue
unreasonably restrained trade in a “relevant product
market” comprised of “Intuniv and its generic
equivalents.” [ECF No. 39 ¶¶ 112, 117-32,
157]. The Defendants argue that the Minors' medical
records may show that alternative treatments to brand or
generic Intuniv were available, and that the availability of
alternative treatments will inform the contours of the
relevant product market and may provide evidence that the
IPPs did not pay a higher price as a result of the challenged
conduct. [ECF No. 117 at 2-3, 15].
the scope of a product market begins with examining the
universe of products that are considered ‘reasonably
interchangeable by consumers for the same
purposes.'” Flovac, Inc. v. Airvac, Inc.,
817 F.3d 849, 854 (1st Cir. 2016) (quoting United States
v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 395
(1956)). The Minors' medical records are therefore
relevant to extent they contain information on alternative
treatments. See Eastman Kodak Co. v. Image Tech. Servs.,
Inc., 504 U.S. 451, 481 (1992) (“The proper market
definition in this case can be determined only after a
factual inquiry into the ‘commercial realities'
faced by consumers.” (quoting United States v.
Grinnell Corp., 384 U.S. 563, 572 (1966))); In re
Loestrin 24 Fe Antitrust Litig., No. 1:13-md-2472-S-PAS,
2017 WL 1491911, at *6 (D.R.I. Mar. 15, 2017)
(“[D]ocuments related to the parties' competing
versions of the relevant product market are
relevant.”). Additionally, because the IPPs claim they
were damaged through their insurance co-pays, the IPPs'
insurance records and the Minors' pharmaceutical records
are relevant to the issue of damages. See [ECF No.
39 ¶¶ 117-32].
Burden and Privilege
IPPs' undue burden and privilege objections are based
primarily on the argument that the Defendants' requests
may lead to the production of privileged
psychotherapist-patient communications that could be used to
annoy or embarrass the IPPs and the Minors. A party is
entitled to nonprivileged, relevant information if its
requests are “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 the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1). A
Court may, “for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or
undue burden or expense.” Fed.R.Civ.P. 26(c)(1).
laws of the five states on which the IPPs' claims are
based, along with federal common law, recognize a
psychotherapist-patient privilege. The Supreme Court has
stated that the psychotherapist-patient privilege
“covers confidential communications made to licensed
psychiatrists and psychologists.” Jaffee v.
Redmond, 518 U.S. 1, 15 (1996). The privilege is
“rooted in the imperative need for confidence and
trust” and is intended to promote “frank and
complete disclosure of facts, emotions, memories, and
fears.” Id. at 10. It covers communications
that are made (1) confidentially, (2) between a
psychotherapist or another covered person and the patient,
and (3) in the course of diagnosis or treatment.
Silvestri v. Smith, No. 14-13137-FDS, 2016 WL
778358, at *2 (D. Mass. Feb. 26, 2016) (citing In re
Grand Jury Proceedings (Violette), 183 F.3d 71, 73 (1st
Cir. 1999)). The privilege protects “‘only the
substance of communications' between the patient and his
treatment provider” and “does not apply to
‘facts regarding the occurrence of psychotherapy, such
as the name of the psychotherapist or dates and costs of
treatment, ” or “other non-communicative
information such as the nature of any diagnosis or treatment
for a mental health condition.” Silvestri,
2016 WL 778358, at *2 (quoting Howe v. Town of N.
Andover, 784 F.Supp.2d 24, 34 (D. Mass. 2011); citing
In re Adoption of Saul, 804 N.E.2d 359, 363-65
(Mass. App. Ct. 2004)). The IPPs claim that the Minors'
medical records are also privileged under the laws of
Florida, Massachusetts, Missouri, ...