Kaiser Foundation Health Plan, Inc. v. Merck & Company Inc., et al.

Background

Kaiser brought this antitrust action concerning Merck’s cholesterol drugs Zetia and Vytorin. The case was transferred to multidistrict litigation in the Eastern District of Virginia for coordinated pretrial proceedings and was later conditionally remanded to the Northern District of California. Kaiser sought leave to take three depositions: a deposition of Merck under Federal Rule of Civil Procedure 30(b)(6), and individual depositions under Rule 30(b)(1) of former Merck employees Paul McCrorey and Glen Firestone.

Merck argued that Kaiser should not be permitted to pursue additional depositions because discovery had already occurred in the multidistrict litigation. Merck also argued that the individual depositions would duplicate the corporate deposition. Kaiser acknowledged that it had received the multidistrict litigation discovery, including deposition transcripts, but argued that its Vytorin claims were separate from the claims that had been the focus of the earlier proceedings.

Legal Standard and Analysis

Rule 30 generally limits a party to ten depositions and restricts repeated depositions of a person who has already been deposed. Additional or repeated depositions require a stipulation or court permission. The court explained that the multidistrict-litigation statute does not necessarily require the transferee court to complete all discovery before remanding a case. Whether further discovery is appropriate depends on the circumstances and the limits imposed by Rule 26.

The court concluded that Kaiser’s Vytorin claims were substantially different from the Zetia-related claims addressed in the multidistrict litigation. The earlier proceedings therefore did not automatically count against Kaiser or eliminate the need for additional discovery. The court allowed Kaiser to pursue corporate-deposition Topics 1 through 8, which concerned matters such as Vytorin pricing, the effects of generic Zetia, treatment decisions, marketing, and strategies addressing generic competition. Merck had not shown that these topics would be duplicative or cumulative of the earlier discovery.

Topics 9 and 10 concerned Merck’s listings of the ’966 and ’106 patents in the Orange Book for Zetia and Vytorin. The court found it unclear how relevant those topics were to Kaiser’s surviving Walker Process fraud claim. The court therefore denied the request for a Rule 30(b)(6) deposition on those topics without prejudice to Kaiser’s submitting a renewed request, depending on the outcome of another pending discovery dispute involving a similar document request.

The court allowed Kaiser to depose Firestone. Although Merck raised concerns about Firestone’s departure from the company, the age of the events, and the limited period of his involvement, the court found that those concerns did not justify barring all testimony from him. The court also allowed Kaiser to depose McCrorey again because he might have information about Vytorin sales, forecasting, planning, and budgeting, and Merck had not shown that the second deposition would be unreasonably cumulative or duplicative.

The court declined to delay the two individual depositions until after the corporate deposition. It explained that testimony from individuals with firsthand knowledge serves a different purpose from testimony given on behalf of a corporation. The court found that Kaiser’s request for two individual depositions was reasonable and did not create an undue burden on Merck.

Disposition

The court granted in part and denied in part Kaiser’s request for three depositions. It permitted the Rule 30(b)(6) deposition on Topics 1 through 8 and permitted Kaiser to depose McCrorey and Firestone. It denied without prejudice the Rule 30(b)(6) deposition request concerning Topics 9 and 10. The order did not resolve any objections that McCrorey or Firestone might raise individually as non-party witnesses.