In re: EpiPen Direct Purchaser Litigation, 0:20-cv-00827

Background

Direct-purchaser class action by Rochester Drug Co-Operative and Dakota Drug against Mylan and three PBMs (Express Scripts, OptumRx, CVS Caremark), alleging Mylan secured EpiPen market dominance via bribes/kickbacks to PBMs and that PBMs breached duties to customers; claims include RICO and Sherman Act predicates.
Major discovery dispute over 22 RFPs seeking: PBMs’ marketing/public statements (invited confidence), company policies/contracting practices, payment/database evidence of rebates and retention, and documents on rebate aggregators/GPOs and safe-harbor compliance.
Parties’ meet-and-confer process was fractious and dysfunctional; Court criticized both sides for poor discovery practices and ordered improved Case Management Conferences and procedural steps (including a plaintiff sworn statement about document accessibility).
Applying Rule 26(b)(1) (relevance and proportionality), the Court granted many requests in part and ordered tailored, proportionate productions and sampling protocols (e.g., representative contract sampling, unredaction of certain spreadsheets, search-term/custodian sampling), while denying wholesale demands.
Court approved a 2007–2018 discovery window (with some standard 2011–2018 limits for particular requests), required specific supplemental productions (and limited sampling methods), and denied fee-shifting under Rule 37(a)(5).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Meet-and-confer process & document accessibility	Plaintiffs say defendants delayed and failed to respond; motions necessary	Defendants say motions premature; plaintiffs didn’t exhaust meet-and-confer or review produced materials	Court criticized both sides, ordered improved CMCs, required plaintiffs to file sworn statement on document accessibility, no fees awarded
RFPs 6–11 & 41 (marketing/public statements & fiduciary duty)	Marketing materials and internal strategy show "invited confidence," supporting fiduciary-duty predicates and RICO/mail-wire fraud proofs	Overbroad, duplicative of prior EpiPen productions, not sufficiently tied to particular customer relationships, some date requests outside timeframe	Granted in part: defendants must supplement central marketing/public relations materials and internal strategy documents within agreed timeframes; RFP41 limited by timeframe (2003 materials need not be produced)
RFPs 27–31 (policies/practices/formulary contract standardization)	Plaintiffs seek centralized policies/practices showing PBMs’ discretionary levers enabling concealment and profit	PBMs say no uniform policy documents exist; negotiations are bespoke and documents would be piecemeal or nonexistent	Granted in part: defendants to produce representative samples—alphabetize contracts and produce every 10th contract up to 10% of total—to provide proportionate insight
RFPs 19–22 & 34 (payment databases, rebates, amounts retained)	Plaintiffs want spreadsheets/databases to trace rebate flows and quantify PBM retention and benefit from price increases	PBMs claim no drug-level itemization exists, production would be disproportionate and burdensome	Mixed: Court ordered unredaction and production of specified spreadsheets; plaintiffs to propose 5 search terms and 5 custodians; defendants run searches and produce every 10th responsive document to enable focused follow-up RFPs
RFPs 13–14 & 38–40 (rebate aggregators/GPOs and safe-harbor defenses)	Tracing payments to aggregators/GPOs informs safe-harbor defenses and the overall money flow picture	Aggregators/GPOs are not plan customers; producing all contracts would be disproportionate	Granted in part: produce CAPS contracts (2011–2018) and a representative sample of aggregator/GPO contracts (alphabetize and produce every 3rd until 10% of aggregators reached)
Discovery timeframe & prior-case productions (2007–2018; initial disclosures)	Plaintiffs seek 2007–2018 to capture pre/post scheme context and prior MDL/ERISA discovery to streamline discovery	OptumRx agreed (without waiving objections); CVS Caremark said premature or already produced	Court ordered 2007–2018 timeframe; compelled CVS Caremark to supplement accordingly; denied compel where defendants attested they already produced prior-case materials

Key Cases Cited

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (U.S. 1978) (discovery scope construed broadly)
Hickman v. Taylor, 329 U.S. 495 (U.S. 1947) (foundational discovery principles)
Hofer v. Mack Trucks, Inc., 981 F.2d 377 (8th Cir. 1992) (burden on requesting party to show relevance)
Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633 (D. Minn. 2000) (court may credit party’s representation that no additional responsive materials exist)
Sherman v. Sheffield Fin., LLC, 338 F.R.D. 247 (D. Minn. 2021) (discovery must focus on actual claims and defenses)
Stark v. Equitable Life Assurance Soc'y, 285 N.W. 466 (Minn. 1939) (fiduciary relationship may arise from disparity of experience and invited confidence)