In re ACTOS Antitrust Litigation

Background

This antitrust class action involves Direct Purchaser and End-Payor Plaintiffs suing Takeda Pharmaceutical Co. Ltd., Takeda America Holdings, Inc., Takeda Pharmaceuticals U.S.A., Inc., and Takeda Development Center Americas, Inc. The parties largely agreed on a protocol governing depositions, but three disputes remained: the number of depositions, the location of depositions involving Japanese witnesses, and the length of depositions requiring interpreters.

Number of Depositions

Under Federal Rule of Civil Procedure 30, a party generally must obtain court permission to take more than 10 depositions unless the parties agree to a different number. The plaintiffs sought permission to take 25 depositions of the defendants’ current and former employees and outside counsel, plus 20 hours of testimony from the defendants through designated corporate representatives under Rule 30(b)(6). The defendants argued for a limit of 12 depositions and had initially proposed 15.

The court allowed the plaintiffs to take up to 15 depositions, including one Rule 30(b)(6) deposition, without seeking additional permission. The court treated the Rule 30(b)(6) deposition as one deposition even if more than one person testified. It declined to decide whether more than 15 depositions would be appropriate before the plaintiffs used the 15 allowed. After that, the plaintiffs may ask for permission to take additional depositions.

Location of Japanese Witness Depositions

The plaintiffs requested that certain witnesses residing in Japan be available for deposition in the United States or another location where the Federal Rules of Civil Procedure apply. They argued that Japanese restrictions would prevent a full or meaningful remote deposition. The defendants argued that remote depositions could proceed in Japan and stated that Takeda would waive the restrictions and agree that the Federal Rules would apply.

The court ruled that the plaintiffs had overcome the usual presumption that a defendant’s deposition occurs where the defendant resides. It ordered depositions outside Japan for Japanese witnesses who are current employees of the defendants and former employees represented by the defendants’ counsel. The court relied on the restrictions described in the U.S.-Japan bilateral Consular Convention, the suspension of in-person depositions in Japan, the limited availability of video depositions, and considerations of cost, convenience, and efficiency.

The parties were directed to meet and confer about a suitable location that would reduce travel costs and be convenient for the witnesses. The court also stated that defendants could seek permission for a particular witness to testify remotely in Japan if they showed individualized hardship and obtained the necessary Japanese government approvals in time. The defendants must produce for deposition outside Japan the identified witnesses who are their officers, directors, or managing agents, as well as witnesses who voluntarily agree to testify for the defendants. The defendants may not call at trial previously identified Japanese witnesses whom they do not produce for those depositions.

Interpreter-Assisted Depositions

Federal Rule of Civil Procedure 30 generally limits a deposition to seven hours in one day unless the parties agree otherwise or the court orders otherwise. The parties agreed that extra time was needed when an interpreter was used but disagreed about the amount. The plaintiffs proposed 14 hours, while the defendants proposed 11 hours.

The court set a 12-hour maximum for depositions requiring an interpreter.

Disposition and Effect

The court ordered that: (1) the plaintiffs may take up to 15 depositions of the defendants’ current and former employees and outside counsel, including one Rule 30(b)(6) deposition, subject to a possible increase after the 15 are completed; (2) the specified depositions of Japanese witnesses must occur at a suitable location outside Japan; and (3) interpreter-assisted depositions may not exceed 12 hours. The order concerns discovery procedure and does not resolve the parties’ underlying antitrust claims.