19-3549

IN THE

United States Court of Appeals FOR THE THIRD CIRCUIT

IN RE: ACTAVIS HOLDCO U.S., INC.; ACTAVIS PHARMA, INC.; AKORN, INC.; AKORN SALES INC.; AMNEAL PHARMACEUTICALS, INC.; APOTEX CORPORATION; ASCEND LABORATORIES, LLC; AUROBINDO PHARMA USA, INC.; CITRON PHARMA, LLC; DAVA PHARMACEUTICALS, LLC; DR. REDDY’S LABORATORIES, INC.; ENDO INTERNATIONAL, PLC; EPIC PHARMA, LLC; FOUGERA PHARMACEUTICALS INC.; G&W LABORATORIES, INC.; GENERICS BIDCO I, LLC; GLENMARK PHARMACEUTICALS INC., USA; HI-TECH PHARMACAL CO., INC.; IMPAX LABORATORIES, INC.; LANNETT COMPANY, INC.; LUPIN PHARMACEUTICALS, INC.; MAYNE PHARMA INC.; MORTON GROVE PHARMACEUTICALS, INC.; MYLAN INC.; MYLAN N.V.; MYLAN PHARMACEUTICALS INC.; OCEANSIDE PHARMACEUTICALS, INC.; PAR PHARMACEUTICAL COMPANIES, INC.; PAR PHARMACEUTICAL, INC.; PERRIGO NEW YORK, INC.; SANDOZ INC.; SUN PHARMACEUTICALS INDUSTRIES, INC.; TARO PHARMACEUTICALS USA, INC.; TEVA PHARMACEUTICALS USA, INC.; UDL LABORATORIES, INC.; UPSHER-SMITH LABORATORIES, LLC; VALEANT PHARMACEUTICALS INTERNATIONAL; VALEANT PHARMACEUTICALS NORTH AMERICA, LLC; WOCKHARDT USA LLC; ZYDUS PHARMACEUTICALS (USA) INC.,

Petitioners.

ON PETITION FOR A WRIT OF MANDAMUS FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(RELATED TO E.D. PA. CASE NO. 16-MD-2724)

BRIEF OF AMICUS CURIAE LAWYERS FOR CIVIL JUSTICE IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS

Jonathan M. Redgrave Gareth T. Evans Kevin F. Brady REDGRAVE LLP 601 Pennsylvania Avenue N.W. Suite 900, South Building Washington D.C., 20004 (202) 697-3479 KBrady@Redgravellp.com Counsel for Amicus Curiae Lawyers for Civil Justice November 7, 2019

DISCLOSURE STATEMENT

Lawyers for Civil Justice (“LCJ”) is a membership organization

incorporated in the District of Columbia as a non-profit organization with a

501(c)(6) status as recognized by the Internal Revenue Service. LCJ has no

parent corporation. No single member owns 10% or more of LCJ’s

memberships.

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TABLE OF CONTENTS

STATEMENT OF IDENTIFICATION ................................................................................... 4

SUMMARY OF THE ARGUMENT...................................................................................... 5

ARGUMENT .................................................................................................................... 7

I. RESPONDING PARTIES THAT HAVE NOT ENGAGED IN DISCOVERY MISCONDUCT SHOULD NOT BE REQUIRED TO PRODUCE IRRELEVANT DOCUMENTS. ........................................................................................................ 7

A. THE FEDERAL RULES OF CIVIL PROCEDURE LIMIT DISCOVERY

TO MATTERS RELEVANT TO ANY PARTY’S CLAIM OR DEFENSE AND PROPORTIONAL TO THE NEEDS OF THE CASE. ...................................................... 7

B. RESPONDING PARTIES, NOT THE COURT OR THE REQUESTING PARTY, DETERMINE HOW TO FULFILL THEIR PRODUCTION OBLIGATIONS. ................... 13

C. COMPELLED PRODUCTION WITHOUT REVIEW IS INAPPROPRIATE AND DISFAVORED. ..................................................................................................... 17

II. THE DISTRICT COURT’S DISCOVERY ORDER WILL RESULT IN A NUMBER OF

UNANTICIPATED CONSEQUENCES THAT WILL UNFAIRLY PREJUDICE THE PETITIONERS. ...................................................................................................... 19

CONCLUSION ................................................................................................................ 21

CERTIFICATION OF COMPLIANCE.............................................................................. 22

ELECTRONIC DOCUMENT CERTIFICATE ................................................................... 23

CERTIFICATE OF BAR MEMBERSHIP ......................................................................... 24

CERTIFICATE OF SERVICE .......................................................................................... 25

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TABLE OF AUTHORITIES CASES

Da Silva Moore v. Publicis Groupe & MSL Group, 287 F.R.D. 182, 191 (S.D.N.Y. 2012) ........................................................................ 8

Diepenhorst v. City of Battle Creek, No. 1:05-CV-734, 2006 WL 1851243, at *3 (W.D. Mich. June 30, 2006) .............. 15

Dynamo Holdings Ltd. P’ship v. Comm’r Internal Revenue, Nos. 2685-11, 8393-12, 2014 WL 4636526, at *3 (U.S. Tax Ct. Sept. 17, 2014) .....................14, 15

E.E.O.C. v. Univ. of Pennsylvania, 850 F.2d 969, 979 (3d Cir. 1988), aff'd, 493 U.S. 182 (1990) ................................. 11

Ford Motor Co. v. Edgewood Props., Inc., 257 F.R.D. 418, 427 (D.N.J. 2009) ........................................................................... 16

Herbert v. Lando, 441 U.S. 153, 177 (1979) ............................................................... 11

In re: Ford Motor Co., 345 F.3d 1315, 1316-17 (11th Cir. 2003) ........................16, 17

NuVasive, Inc. v. Alphatec Holdings, Inc., No. 18-cv-0347, 2019 WL 4934477, at *2 (S.D. Cal. Oct. 7, 2019 ......................... 17

Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, (D. Md. 2008) .......................................................................... 8

Source One Direct, Inc. v. Digitas, Inc., No. 1:11-cv-01262, 2011 WL 13319641, at *5 (N.D. Ga. June 29, 2011) ............................................... 17

United States v. Becton, Dickinson & Co., 30 F.R.D. 132, 134 (D.N.J. 1962) ........... 18

Winfield v. City of New York, No. 15-cv-05236, 2017 WL 5664852, at *9 (S.D.N.Y. Nov. 27, 2017) ..........................................17, 19

OTHER AUTHORITIES

The Sedona Conference Best Practices Commentary on the Use of Search Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 194-95, 201 (2008) ................................................................ 9

The Sedona Conference Commentary on Protection of Privileged ESI, 17 Sedona Conf. J. 95, 137 (2016) ........................................................................... 19

iii

The Sedona Principles, Third Edition, 19 Sedona Conf. J. at 154 ........................19, 20

The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 121-122 (2018) ...................................................................... 15

RULES 1983 Advisory Comm. Notes to Rule 26 ..................................................................... 13

2000 Comm. Notes to Rule 26 ..................................................................................... 12

2006 Advisory Comm. Note to Rule 34 ...................................................................... 11

2015 Comm. Notes to Rule 26 ...............................................................................12, 13

8 Fed. Prac. and Proc. Civ. § 2008 (3d ed.)(1970) ...................................................... 11

Comm. on Rules of Practice and Procedure, Report of Judicial Conf. to Chief Justice, app. B-10 (Sept. 2014) ........................... 12

Fed. R. Civ. P. 26(b)(1) ................................................................................................ 10

Fed. R. Civ. P. 34(a)..................................................................................................... 10

Fed. R. Civ. P. 34(b)(1) ................................................................................................ 15

Fed. R. Civ. P. 34(b)(2)(B ............................................................................................ 15

FRE 502(d) ................................................................................................................... 20

TREATISES AND ARTICLES

Gregory L. Waterworth, Proportional Discovery’s Anticipated Impact and Unanticipated Obstacle, 47 U. Balt. L. Rev. 139, 152 (2017) ................................. 13

Hon. James C. Francis IV, Judicial Modesty: The Case for Jurist Restraint in the New Electronic Age, L. Tech. News (Feb. 2013) ........................................... 15

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STATEMENT OF IDENTIFICATION

Lawyers for Civil Justice (“LCJ”) is a national coalition of corporations,

law firms and defense trial lawyer organizations that advocates for procedural

rule reforms to: (1) promote balance and fairness in the civil justice system; (2)

reduce costs and burdens associated with litigation; and (3) advance

predictability and efficiency in litigation. LCJ’s members are frequent litigants,

often seeking discovery as well as responding to discovery requests. LCJ

advocates for procedural rules that are fair and efficient for everyone,

regardless of their position in any particular lawsuit.

LCJ has a particular interest in this case because the District Court’s

discovery order is an example of the epidemic of excessive discovery in civil

litigation, particularly in multi-district litigation cases, and it contravenes the

rules and fundamental procedures of civil discovery in the federal courts.

LCJ is submitting this amicus brief pursuant to its accompanying Motion

for Leave to File an Amicus Brief pursuant to Federal Rule of Appellate

Procedure 29(a)(2), (3). No party to this case and no party’s counsel authored

LCJ’s amicus brief in whole or in part. No party and no party’s counsel

contributed money intended to fund the preparation or submission of this brief.

No person other than LCJ contributed money intended to fund the preparation

or submission of this brief.

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SUMMARY OF THE ARGUMENT

That discovery must be limited to that which is relevant to the claims and

defenses is one of the hallmarks of the federal judicial system. Federal Rule of

Civil Procedure 26(b)(1) sets relevance to the claims and defenses as the outer

limit of the scope of discovery. The District Court’s October 24, 2019 discovery

order requiring Petitioners to produce any documents that hit “search terms”

without any relevance or responsiveness review is directly contrary to Rule

26(b)(1) and well-reasoned case authority. Moreover, it violates the principle that

responding parties—not the court or the Requesting Party—should determine the

methodologies and processes of how they will fulfill their production obligations.

Additionally, the discovery order will result in numerous problems that run

directly counter to the mandate of Rule 1 of the Federal Rules of Civil Procedure

that the Rules should be employed “to secure the just speedy, and inexpensive

determination of every action and proceeding.” These problems include the

enormous costs on Petitioners to simply produce that many documents; the

extraordinary costs of applying the Court’s protective order addressing

confidentiality against the massively expanded universe of irrelevant produced

documents in an impossibly short time frame; the risks of having highly sensitive

trade secrets and competitive information in irrelevant documents revealed to the

many corporate co-defendants, all of whom are competitors in the pharmaceutical

industry; and the inability to conduct any meaningful privilege review under the

process set forth in the District Court’s Order.

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Mandamus relief is appropriate because of the extraordinary impact of the

District Court’s discovery order and the irreparable harm it will cause. Beyond the

problems and impact in the instant case, the precedent that may be set by this order

in a highly visible MDL proceeding is deeply troubling, as it would portend the

effective evisceration of Rule 26’s bright-line prohibition of discovery that is not

relevant to claims and defenses.

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ARGUMENT

I. Responding Parties That Have Not Engaged In Discovery Misconduct Should Not Be Required To Produce Irrelevant Documents.

A. The Federal Rules of Civil Procedure Limit Discovery to Matters

Relevant to Any Party’s Claim or Defense and Proportional to the Needs of the Case.

The District Court’s October 24, 2019 discovery order1 requiring Petitioners

to produce any documents that hit search terms without any relevance or

responsiveness review will result in the production of many thousands, and

perhaps millions, of documents that are irrelevant to the claims and defenses. The

discovery order, no matter how well intentioned, is simply inconsistent with the

Federal Rules of Civil Procedure. Mandamus relief is appropriate because the

order is clearly erroneous and will cause extraordinary harm.

Search terms, no matter how carefully conceived, inevitably yield a large

number of false positives. See, e.g., Victor Stanley, Inc. v. Creative Pipe, Inc., 250

F.R.D. 251, 260, (D. Md. 2008) (“While keyword searches have long been

recognized as appropriate and helpful for ESI search and retrieval, there are well-

known limitations and risks associated with them”); Da Silva Moore v. Publicis

Groupe & MSL Group, 287 F.R.D. 182, 191 (S.D.N.Y. 2012) (“Another problem

with keywords is that they often are over-inclusive, that is, they find responsive

documents but also large numbers of irrelevant documents.”).

1 See A2 (providing that defendants “may not withhold prior to production any

documents based on relevance or responsiveness.”). Citations to “A_” refer to the Appendix attached to the Petition for Writ of Mandamus.

8

“[S]imple keyword searches end up being both over- and under-inclusive in

light of the inherent malleability and ambiguity of spoken and written English (as

well as all other languages).” The Sedona Conference Best Practices Commentary

on the Use of Search Information Retrieval Methods in E-Discovery, 8 Sedona

Conf. J. 189, 194-95, 201 (2008). In an attempt to avoid the issue of under-

inclusiveness, requesting parties—as here—often seek to impose very broad search

terms, which then serve to exacerbate the problem of over-inclusiveness.

Here, the District Court has skipped the ordinary process and has instead

adopted a novel approach that effectively relieves the requesting parties from

complying with the requirement of Rules 26 and 34 that requests for production

must be tailored and directed towards the discovery of relevant information.

Instead, the District Court’s Order requires that Petitioners must produce any of

their documents hitting search terms without any responsiveness review, which will

inevitably result in the compelled production of massive quantities of irrelevant

information. Moreover, if defendants do not accede to plaintiffs’ demands for

overly broad search terms, the District Court—through its appointed special

masters—will determine the search terms and mandate that defendants use them.

See A2.

Besides the fact that such a compelled production is per se improper, there

are numerous practical problems that will likely follow. These include the

enormous costs accompanying the mechanics of processing and producing that

many documents; the extraordinary costs involved in attempting to apply a multi-

tiered protective order against the universe of documents (many of which will be

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clearly irrelevant) in an expedited time frame; the risks that highly sensitive trade

secrets and competitive information in irrelevant documents will be revealed to the

many corporate co-defendants; the risks attendant to the inadvertent production of

privileged documents that will be exacerbated due to the increased volumes of

documents subject to review and extremely tight time frames for compliance; and

the extraordinary costs of conducting a privilege review on irrelevant documents.

But the fundamental problem with the District Court’s discovery order is

that it effectively mandates that the Petitioners produce in discovery information

that is not within the scope of discovery. The District Court has no legal authority

to require such a production. Rule 26(b)(1) sets relevance to the claims and

defenses as the outer limit of the scope of discovery, which can be further limited

by considerations of proportionality or “otherwise limited by court order.” See

Fed. R. Civ. P. 26(b)(1).

The rule’s language is plain and clear: “Unless otherwise limited by court

order, the scope of discovery is as follows: 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[.]” See id. Likewise, Rule 34, which is the

basis upon which any requesting party can seek and obtain production of

documents, is specifically bounded to requests “within the scope of Rule 26(b).”

See Fed. R. Civ. P. 34(a).

It was clear error for the District Court to effectively expand the scope of

discovery beyond relevant information simply because this case involves “high

stakes” and allegations of antitrust violations. See A10-11. Nor would it be

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appropriate for the District Court to employ its process simply because the case

involves large volumes of electronically stored information. Electronically stored

information is subject to the same discovery requirements, including the limitations

on the scope of discovery, as other forms of information. There is no law or rule

providing that electronically stored information is subject to a broader scope of

discovery. Indeed, the Federal Rules of Civil Procedure were amended in 2006—

adding “electronically stored information” to the information that can be requested

under Rule 34—“to confirm that discovery of electronically stored information

stands on equal footing with discovery of paper documents.” See 2006 Comm.

Notes to Rule 34.

That discovery must be limited to that which is relevant to the claims and

defenses is one of the hallmarks of our judicial system. The Supreme Court in

Herbert v. Lando stated that “the discovery provisions, like all of the Federal Rules

of Civil Procedure, are subject to the injunction of Rule 1 that they ‘be construed to

secure the just, speedy, and inexpensive determination of every action.’ To this

end, the requirement of Rule 26(b)(1) that the material sought in discovery be

‘relevant’ should be firmly applied.” Herbert v. Lando, 441 U.S. 153, 177 (1979).

See also E.E.O.C. v. Univ. of Pennsylvania, 850 F.2d 969, 979 (3d Cir. 1988),

aff'd, 493 U.S. 182 (1990) (“To be sure, relevancy is the touchstone of any

discovery request.”); 8 Fed. Prac. and Proc. Civ. § 2008 (3d ed.)(1970) (“Perhaps

the single most important word in Rule 26(b)(1) is ‘relevant,’ for it is only relevant

matter that may be the subject of discovery.”).

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Further illustrating that the scope of discovery may not go beyond material

relevant to the claims and defenses, the Amendments to the Federal Rules of Civil

Procedure in 2000 and 2015 addressed the misconception that the scope of

discovery could extend beyond relevance if the requested discovery was

“reasonably calculated to lead to the discovery of admissible evidence.” The

Committees Note to the 2000 amendments observed that such misuse of the

“reasonably calculated” phrase in Rule 26 to define the scope of discovery “might

swallow any other limitation on the scope of discovery.” See 2000 Comm. Notes

to Rule 26.

The 2000 amendments sought to prevent such misuse by adding the word

“Relevant” at the beginning of the sentence. The Committee Notes commented,

“[a]ccordingly, this sentence has been amended to clarify that information must be

relevant to be discoverable[.]” See 2000 Comm. Notes to Rule 26. Nevertheless,

the “reasonably calculated phrase” continued to be misconstrued by some as

expanding the scope of discovery beyond relevance. See 2015 Comm. Notes to

Rule 26 (“The phrase has been used by some, incorrectly, to define the scope of

discovery.”) See also Comm. on Rules of Practice and Procedure, Report of

Judicial Conf. to Chief Justice, app. B-10 (Sept. 2014) (“that phrase was never

intended to have that purpose”).

Consequently, the 2015 rule amendments eliminated the provision entirely.

See 2015 Comm. Notes to Rule 26 (“The reasonably calculated” phrase has

continued to create problems, however, and is removed by these amendments.”);

see also Gregory L. Waterworth, Proportional Discovery’s Anticipated Impact and

12

Unanticipated Obstacle, 47 U. Balt. L. Rev. 139, 152 (2017) (“The new Rule

26(b)(1) removed any past provisions that could arguably expand or redefine the

scope of discovery leaving only two considerations: relevance to claims and

defenses and proportionality”).

While the scope of discovery cannot be expanded beyond relevant

information, it may be—and should be—limited where the costs and burdens of

producing relevant and responsive information outweigh the need for the

information in the case. The inclusion of proportionality in Rule 26(b)(1) as an

express limit on the scope of discovery in the 2015 rule amendments further

illustrates the impropriety of the District Court’s discovery order mandating the

production of irrelevant information and ignoring proportionality entirely.

The proportionality provisions were first adopted in the 1983 rule

amendments, but appeared in Rule 26(b)(2)(C)(iii). The 1983 Advisory

Committee Notes state that the new provisions were added “to deal with the

problem of overdiscovery. The objective is to guard against redundant or

disproportionate discovery by giving the court authority to reduce the amount of

discovery that may be directed to matters that are otherwise proper subjects of

inquiry.” See 1983 Advisory Comm. Notes to Rule 26. The 2015 Committee

Notes state that because the “clear focus” of the 1983 provisions “may have been

softened” over time, the present amendment “restores the proportionality factors to

their original place in defining the scope of discovery” by placing them in Rule

26(b)(1). See 2015 Comm. Notes to Rule 26.

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The District Court’s discovery order accomplishes the exact opposite of

what the proportionality limits on the scope of discovery in the 1983 and 2015 rule

amendments intended. Rather than reducing the scope of discovery, the order

expands the scope of discovery well beyond its clear boundary of relevance to the

claims and defenses. Moreover, as there can be no legitimate need for discovery of

irrelevant material, producing massive volumes of irrelevant information cannot

possibly be “proportional to the needs of the case.”

The impact of this precedent, if allowed to stand, cannot be understated.

Requesting parties across the Third Circuit and across the country will quickly

dispense with the need for tailored Rule 34 requests and an orderly meet and

confer process, and will instead opt for seeking a broad search term process

without any legal justification that deprives responding parties of their right to

review documents and that results in significant risks and burdens attendant to the

production of irrelevant documents.

B. Responding Parties, Not the Court or the Requesting Party, Determine How To Fulfill Their Production Obligations.

The Federal Rules of Civil Procedure provide that each party should fulfill

its discovery obligations without direction from the court or opposing counsel. See

Rule 26(a) (mandatory initial disclosures); Rule 34(b)(2) (parties directed to

respond to requests for documents or ESI). The court in Dynamo Holdings Ltd.

P’ship v. Comm’r explained that “although it is a proper role of the Court to

supervise the discovery process and intervene when it is abused by the parties, the

Court is not normally in the business of dictating to parties the process that they

14

should use when responding to discovery.” Dynamo Holdings Ltd. P’ship v.

Comm’r Internal Revenue, Nos. 2685-11, 8393-12, 2014 WL 4636526, at *3 (U.S.

Tax Ct. Sept. 17, 2014). See also Diepenhorst v. City of Battle Creek, No. 1:05-

CV-734, 2006 WL 1851243, at *3 (W.D. Mich. June 30, 2006) (the “discovery

process is designed to be extrajudicial, and relies upon the responding party to

search his records to produce the requested data.”). See also Hon. James C.

Francis IV, Judicial Modesty: The Case for Jurist Restraint in the New Electronic

Age, L. Tech. News (Feb. 2013) (No Federal Rule “has given judges the authority

. . . to dictate to the parties how or where to search for documents.”).

Rule 34 sets forth the procedures for requesting and producing documents

and electronically stored information. It does not differentiate between

information stored on paper or on an electronic medium. The requesting party

must “describe with reasonable particularity each item or category of items”

requested. See Fed. R. Civ. P. 34(b)(1). The producing party must then produce

the requested information or object to the request. See Fed. R. Civ. P. 34(b)(2)(B).

The rule does not specify the methodology or process by which the

responding party shall produce the requested information. “There are many

options available to a responding party in evaluating and selecting how best to

meet its preservation and discovery obligations, and it should be permitted to elect

how best to allocate its resources and incur the costs required to comply with its

obligations.” The Sedona Principles, Third Edition: Best Practices,

Recommendations & Principles for Addressing Electronic Document Production,

19 Sedona Conf. J. 1, 121-122 (2018). See also Ford Motor Co. v. Edgewood

15

Props., Inc., 257 F.R.D. 418, 427 (D.N.J. 2009) (“The Sedona Principles wisely

state that it is, in fact, the producing party who is [in] the best position to determine

the method by which they will collect documents. . . . [A]bsent an agreement or

timely objection, the choice is clearly within the producing party’s sound

discretion.”).

The District Court’s discovery order, by contrast, turns the ordinary process

of civil discovery in federal courts on its head. Rather than the requesting party

asking for particular categories of relevant information and permitting the

responding party to search for and produce it, the District Court’s order instead

requires Petitioners to produce everything that hits on court-mandated (if the

parties cannot reach agreement) search terms and permits the Respondents to sift

through that production in order to pick out whatever they like.

This process finds no support in the Federal Rules. Courts routinely reject

attempts by requesting parties to insert themselves into the process of searching for

relevant documents, whether by attempting to dictate particular custodians or

search terms, or seeking unfettered access to the responding party’s documents or

data so they can pick out whatever they like. In In re: Ford Motor Co., for

example, the court overturned a district court’s order that permitted plaintiffs

unrestricted access to defendants’ database to run searches of their own choosing

for responsive information. See In re: Ford Motor Co., 345 F.3d 1315, 1316-17

(11th Cir. 2003). The court found it is the responding party—not the requesting

party—that decides how to search for relevant data and the form of production. It

stated that Rule 34 “allows the responding party to search his records to produce

16

the required, relevant data. [It] does not give the requesting party the right to

conduct the actual search.” Id. at 1316.

Similarly, in NuVasive, Inc. v. Alphatec Holdings, Inc., the court recently

held that “nothing in Rule 34 requires a requesting party to identify custodians or

search terms,” and that a proposed ESI protocol was “contrary to the ordinary

progress of civil discovery in the federal courts” because it permitted the

requesting party to dictate terms of the search. NuVasive, Inc. v. Alphatec

Holdings, Inc., No. 18-cv-0347, 2019 WL 4934477, at *2 (S.D. Cal. Oct. 7, 2019).

Instead, “Plaintiff must request information, regardless of how or where it is

maintained by Defendants, which Defendants must address as required by Rule 34.

That is discovery: a party requests information and the burden is on the producing

party to locate and produce it or object legitimately to production.” Id.

In Winfield v. City of New York, the court held that “[a]s courts have noted,

the producing party is in the best position to evaluate the procedures,

methodologies, and technologies appropriate for preserving and producing their

own electronically stored information. Traditionally, courts have not micro-

managed parties' internal review processes for a number of reasons.” Winfield v.

City of New York, No. 15-cv-05236, 2017 WL 5664852, at *9 (S.D.N.Y. Nov. 27,

2017) (internal citations omitted). See also Source One Direct, Inc. v. Digitas,

Inc., Civil Action File No. 1:11-cv-01262, 2011 WL 13319641, at *5 (N.D. Ga.

June 29, 2011) (“Rule 34, as interpreted by its advisory committee notes and the

case law, permits the responding party to search the information in the hard drives

and produce the information that it believes is responsive to the requesting parties’

17

discovery requests unless there is some showing of misconduct or incomplete

responses by Defendant.”).

Furthermore, in United States v. Becton, Dickinson & Co., the court

explained that “[i]n its simplest aspect, Rule 34 says to a party that if you seek a

particular document in the possession of your adversary, and can show the Court

that there is good cause why you should be permitted to examine it, the Court may

grant you the right to do so. The Rule does not contemplate that a party may obtain

a permit to explore the documents in the possession of his adversary in the hope

that he may find something which may adversely affect the adversary's case, or

that may prove helpful to the case of the movant.” United States v. Becton,

Dickinson & Co., 30 F.R.D. 132, 134 (D.N.J. 1962).

Accordingly, the process set forth in the District Court’s discovery order,

which deprives Petitioners of their right to review their documents and limit their

production to relevant and responsive information, is in direct contravention to the

process for civil discovery set forth in the Federal Rules of Civil Procedure and, in

particular, Rule 34. Again, the novel precedent set by the District Court’s

discovery order in this MDL should not be allowed to stand.

C. Compelled Production Without Review Is Inappropriate and Disfavored.

By forbidding the Petitioners from reviewing the documents hit by court-

mandated search terms for relevance and responsiveness to requests for production,

the District Court’s discovery order is in many respects analogous to a compelled

“quick peek,” a procedure in which the responding party produces information

18

without review and can then claw back privileged or other material. Although

parties may voluntarily agree to such “quick peek” arrangements, they are

improper when compelled by a court against the responding party’s wishes.

The court in Winfield v. City of New York, for example, rejected the

argument that Federal Rule of Evidence 502 (which provides for claw backs of

privileged materials)—or any other source of authority—empowers a district court

to order a “quick peek” procedure against the producing party’s wishes. See

Winfield v. City of New York, No. 15-cv-05236, 2018 WL 2148435, at *4-8

(S.D.N.Y. May 10, 2018). See also The Sedona Conference Commentary on

Protection of Privileged ESI, 17 Sedona Conf. J. 95, 137 (2016) (“although a court

may enter a Rule 502(d) order allowing the parties to engage in a ‘quick peek’

process, the court cannot order a ‘quick peek’ process over the objection of the

producing party”).

The Petitioners have not consented to such a process here. Moreover, such

“quick peeks” are disfavored for a number of reasons. As the Sedona Principles

observe, their “risks and limitations make ‘quick peek’ agreements and productions

ill-advised for most cases.” The Sedona Principles, Third Edition, 19 Sedona

Conf. J. at 154. For example, to the extent that privileged or irrelevant but

otherwise damaging or commercially sensitive materials are produced—for

example to competitors, as here—“the knowledge obtained cannot be erased from

their minds.” See id. In other words, the proverbial bell cannot be unrung. Id.

Consequently, when “quick peek” productions “include confidential information

19

that is not relevant and not otherwise subject to production,” the “disclosure of the

information could cause commercial or personal harm to the responding party.” Id

at 155.

Additionally, claw back procedures, even under Federal Rule of Evidence

502(d), do “not protect trade secrets and other commercially or personally sensitive

information.” See FRE 502(d). Once they are disclosed publicly, any protections

or trade secrets status may be waived. And “if the production encompasses

personal privacy information subject to domestic or foreign statutory regulatory

protection, the disclosure of information to an opposing party may result in liability

or penalties, whether or not a protective order is entered.” Id.

Consequently, it was improper for the District Court to compel Petitioners to

produce search term hits information without any review, even if it provides

processes for claw back of privileged material or confidentiality designations under

a protective order.

II. The District Court’s Discovery Order Will Result In A Number of

Unanticipated Consequences That Will Unfairly Prejudice The Petitioners.

Various aspects of the District Court’s discovery order will also result in

consequences that the District Court likely did not anticipate that will unfairly

prejudice the petitioners. First, the costs of the work involved in processing for

production such large volumes of irrelevant documents alone are likely to be

extraordinary. Second, the discovery order in effect compels Petitioners to

20

produce irrelevant trade secrets and other competitively-sensitive information to

numerous competitors in the pharmaceutical industry, risking their disclosure and

irreparable harm to the producing parties even with ostensible protective order

protections.

Third, although Petitioners may conditionally designate produced materials

with various degrees of confidentiality protection, the discovery order requires that

they finalize those designations within 120 days. See A.3. Doing so, however,

will require Petitioners to carefully review enormous volumes of irrelevant

material in a relatively short period of time, unfairly imposing tremendous costs

and burdens to protect trade secrets and other sensitive information in large

volumes of material that they should never have been required to produce in the

first place.

Fourth, although the District Court has permitted a privilege (but not a

relevance) review, it has required that such review be completed by December 20,

2019 and privilege logs to be produced by January 15, 2020. See A2. Given the

extremely high volumes of information involved, it will almost certainly not be

possible for the Petitioners to conduct a thorough and careful privilege review.

Instead, they will likely need to employ measures—such as using search terms to

try to identify likely privileged documents—that will inevitably miss many

privileged documents.

Accordingly, in addition to depriving Petitioners of their right to review their

documents and limit their production to relevant and responsive information, the

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District Court’s discovery order will result in a number of likely unanticipated

consequences that are unfair to Petitioners and deprive them of “the just, speedy

and inexpensive determination of every action and proceeding” guaranteed by Rule

1 of the Federal Rules of Civil Procedure.

CONCLUSION

For the foregoing reasons, this Court should grant the Petition for Writ of

Mandamus.

Dated: November 7, 2019 Respectfully submitted,

/s/ Kevin F. Brady Kevin F. Brady (PA Bar # 38073) (DE Bar # 2248) Jonathan M. Redgrave Gareth T. Evans REDGRAVE LLP 601 Pennsylvania Avenue N.W. Suite 900, South Building Washington D.C., 20004 KBrady@Redgravellp.com (202)697-3479 Counsel for Amicus Curiae Lawyers for Civil Justice

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CERTIFICATION OF COMPLIANCE

1. This brief complies with the type-volume limitations of Federal Rules

of Appellate Procedure 29(a)(5) and 32(a)(7)(B) because this brief contains 4,048

words, excluding the parts of the brief exempted by Federal Rule of Appellate

Procedure 32(f) and Third Circuit L.A.R. 29.1(b). Microsoft Word 2016 was used

to calculate the word count.

2. This brief complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of

Appellate Procedure 32(a)(6) because this brief has been prepared in a

proportionally spaced typeface using Microsoft Word 2016 in Times New Roman

14-point font.

Dated: November 7, 2019 Respectfully submitted,

/s/ Kevin F. Brady Kevin F. Brady Counsel for Amicus Curiae Lawyers for Civil Justice

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ELECTRONIC DOCUMENT CERTIFICATE

I hereby certify that:

1. Pursuant to Third Circuit Local Appellate Rule 31.1(c), I hereby

certify that the text of the electronic brief is identical to the text in the paper copies.

2. Pursuant to Third Circuit Local Appellate Rule 31.1(c), I hereby

certify that a virus detection program was run on the electronic version of this brief

using Sonos virus protection software, and that no virus was detected.

Dated: November 7, 2019 Respectfully submitted,

/s/ Kevin F. Brady Kevin F. Brady Counsel for Amicus Curiae Lawyers for Civil Justice

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CERTIFICATE OF BAR MEMBERSHIP

I hereby certify that I, as counsel filing this brief on behalf of Amicus

Curiae Lawyers for Civil Justice, am a member of the bar of the United States

Court of Appeals for the Third Circuit. My colleagues named in the caption are

members in good standing of the bars of their states, and will be filing

applications for admission to this Court.

Dated: November 7, 2019 Respectfully submitted,

/s/ Kevin F. Brady Kevin F. Brady Counsel for Amicus Curiae

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CERTIFICATE OF SERVICE

I hereby certify that I caused true and correct copy of the foregoing was

served via Electronic Mail and First-Class Mail Service pursuant to the Court’s

orders appointing liaison counsel upon: Dianne M. Nast NASTLAW LLC 1100 Market Street, Suite 2801 Philadelphia, PA 19107 (215) 923-9300 dnast@nastlaw.com Liaison and Lead Counsel for the Direct Purchaser Plaintiffs Roberta D. Liebenberg FINE, KAPLAN AND BLACK, R.P.C. One South Broad Street, 23rd Floor Philadelphia, PA 19107 (215) 567-6565 rliebenberg@finekaplan.com Liaison and Lead Counsel for the End-Payer Plaintiffs W. Joseph Nielsen Assistant Attorney General 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 Tel: (860)808-5040 Fax: (860)808-5033 Joseph.Nielsen@ct.gov Liaison Counsel for Plaintiff States

Jan P. Levine PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 Tel: (215) 981-4000 Fax: (215) 981-4750 levinej@pepperlaw.com Sheron Korpus KASOWITZ BENSON TORRES LLP 1633 Broadway New York, New York 10019 Tel: (212) 506-1700 Fax: (212) 506-1800 skorpus@kasowitz.com Saul P. Morgenstern ARNOLD & PORTER KAYE SCHOLER LLP 250 W. 55th Street New York, NY 10019 Tel: (212) 836-8000 Fax: (212) 836-8689 saul.morgenstern@apks.com Laura S. Shores ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Avenue Washington, DC 20001 Tel: (202) 942-5000 Fax: (202) 942-5999 laura.shores@apks.com

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Richard Alan Arnold KENNY NACHWALTER, PA 1441 Brickell Avenue, Suite 1100 Miami, FL 33131 Tel: (305) 373-1000 Fax: (305) 372-1861 rarnold@knpa.com Counsel for Kroger Plaintiffs

Chul Pak WILSON SONSINI GOODRICH & Professional Corporation 1301 Avenue of the Americas, 40th Fl. New York, NY 10019 Tel: (212) 999-5800 Fax: (212) 999-5899 cpak@wsgr.com Defendants’ Liaison Counsel

One “original” and six hard copies of the foregoing Amicus Curiae Brief of

Lawyers for Civil Justice were sent to the Clerk’s Office via Federal Express Next

Business Day Delivery to: Clerk of Court

United States Court of Appeals, Third Circuit Independence Mall West

601 Market Street Philadelphia, Pennsylvania 19106

(215) 597-2995 on this 7th day of November, 2019. Respectfully submitted,

/s/ Kevin F. Brady Kevin F. Brady Counsel for Amicus Curiae