Genus Lifesciences Inc. v. Lannett Company, Inc.

Background

Genus sued Lannett Company, Inc. and other defendants concerning alleged false advertising, marketing, and promotion of a cocaine hydrochloride nasal-spray product. Genus served nonparty Michael Singer, a former Lannett salesperson, with a document subpoena. The subpoena sought three categories of materials: Singer’s agreements with Lannett, including employment agreements; promotional literature, advertisements, and training materials concerning cocaine hydrochloride; and communications with Lannett, doctors, pharmacists, surgery centers, or other customers concerning cocaine hydrochloride.

Singer moved to quash the subpoena, meaning to cancel it, or alternatively sought a protective order. He argued that compliance would impose significant expense and burden, and that producing the documents could expose him to claims by Lannett for disclosing privileged or confidential information. Singer also stated that he had provided the documents in his possession to Lannett before leaving his employment. Because Singer was proceeding without a lawyer, he separately requested permission to file documents electronically and requested a telephone appearance.

Parties’ Positions

Genus offered to reimburse certain copying costs and compensate Singer for time spent locating and listing documents. It proposed that Singer review his files, prepare a list for Genus and Lannett, and submit the materials to Lannett’s counsel for review and production of nonprivileged documents. Genus argued that this process would address Singer’s concerns.

Lannett objected to even providing Genus with a document list because the list might disclose privileged or highly confidential information. Lannett also questioned the proposed timing for producing nonprivileged documents. The opinion states that Lannett did not file a response to Singer’s motion. Genus asserted that Lannett had previously failed to produce documents discovered during Genus’s investigation, but the court found that Genus had not shown it requested the same documents from Lannett that it sought from Singer.

Court’s Analysis

Federal Rule of Civil Procedure 45 governs subpoenas to nonparties. Under that rule, a court must quash or modify a subpoena that subjects a person to undue burden and must protect a nonparty from significant compliance expenses. The scope of subpoena discovery is generally the same as the scope of discovery allowed under Rule 26, which permits discovery of relevant, nonprivileged information proportional to the needs of the case. Discovery should also be limited when the information can be obtained from another source that is more convenient, less burdensome, or less expensive.

The court emphasized that parties generally should seek discovery from one another before burdening nonparties. Because Lannett was a party to the case and appeared to possess the requested materials, Genus should first have attempted to obtain those documents from Lannett. The court rejected Genus’s proposed sequence of seeking the information from Singer first and concluded that Genus’s failure to first seek the requested documents from Lannett made the subpoena an undue burden on Singer.

The court therefore granted Singer’s motion to quash the subpoena. Because that ground resolved the motion, the court did not address Singer’s separate arguments concerning significant expense and the risk of disclosing privileged or confidential information. The court denied as moot Singer’s motions for a telephone appearance and permission for electronic case filing.