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In re Aggrenox Antitrust Litigation

United States District Court, D. Connecticut

February 12, 2018

IN RE AGGRENOX ANTITRUST LITIGATION THIS DOCUMENT RELATES TO: Humana, No. 314-cv-00572 SRU, and Louisiana Health, No. 315-cv-00964 SRU

          RULING ON MOTION TO CERTIFY ORDER FOR INTERLOCUTORY APPEAL

          Stefan R. Underhill United States District Judge.

         On November 29, 2017, in this multidistrict litigation, I entered a ruling and order compelling defendant Boehringer Ingelheim Pharmaceuticals (“Boehringer”) to produce to plaintiffs Humana, Inc. and Louisiana Health Service Indemnity Co. (collectively, “Humana”) portions of a set of 52 documents (the “FTC documents”) that Boehringer had previously produced to the Federal Trade Commission (“FTC”) in response to an order of the United States District Court for the District of Columbia. See In re Aggrenox Antitrust Litig., 2017 WL 5885664 (D. Conn. Nov. 29, 2017) (“Aggrenox”). Boehringer now requests that I certify that order for interlocutory appeal to the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1292(b). For the following reasons, I deny Boehringer's motion.

         I. Standard of Review

         The courts of appeals are given jurisdiction over appeals from all “final decisions of the district courts, ” 28 U.S.C. § 1291 (emphasis added), and so “a party must ordinarily raise all claims of error in a single appeal following final judgment on the merits.” Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 429-30 (1985). Nevertheless, 28 U.S.C. § 1292(b) creates a “rare exception to the final judgment rule.” Koehler v. Bank of Bermuda, 101 F.3d 863, 865 (2d Cir. 1996). That statute allows a district judge to certify the interlocutory appeal of an order when the judge is “of the opinion” that:

(1) the “order involves a controlling question of law, ”
(2) the question presents “substantial ground for difference of opinion, ” and
(3) “an immediate appeal may materially advance the ultimate termination of the litigation.”

28 U.S.C. § 1292(b). Whether to certify an order for interlocutory appeal “is entirely a matter of discretion for the District Court.” In re City of New York, 607 F.3d 923, 933 (2d Cir. 2010).

         The Second Circuit has cautioned that section 1292(b) should “not . . . be literally construed, ” and that “only ‘exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'” Klinghoffer v. S. N.C. Achille Lauro ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 921 F.2d 21, 24-25 (2d Cir. 1990) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978), abrogated by Fed. R. Civ. P. 23(f)); accord White v. Nix, 43 F.3d 374, 376 (8th Cir. 1994) (“[Section] 1292(b) ‘should and will be used only in exceptional cases where a decision on appeal may avoid protracted and expensive litigation' . . . .”) (quoting S. Rep. No. 2434, 85th Cong., 2d Sess. (1958), reprinted in 1958 U.S.C.C.A.N. 5255, 5260). The party that seeks certification under section 1292(b) “bears the heavy burden of demonstrating that the case is an exceptional one in which immediate appeal is warranted.” White, 43 F.3d at 376.

         II. Background

         The events leading to this discovery dispute are set forth at length in Aggrenox, 2017 WL 5885664, at *1-*4. In the course of the government's investigation of the reverse-payment settlement at issue in this case, Boehringer was ordered by the D.C. federal courts to produce a set of 52 documents to the FTC. See generally FTC v. Boehringer Ingelheim Pharm., 286 F.R.D. 101 (D.D.C. 2012) (“Boehringer I”), aff'd in part, vacated in part, and remanded, 778 F.3d 142 (D.C. Cir. 2015) (“Boehringer II”), on remand, 180 F.Supp.3d 1 (D.D.C. 2016) (“Boehringer III”). Humana asked Boehringer to produce the FTC documents in this case, as well; when Boehringer refused, Humana moved to compel. After consulting the parties' briefs, hearing oral argument, and examining the documents in camera, I issued a ruling on November 29, 2017 that directed Boehringer to produce the 29 FTC documents relevant to this case.[1]

         The main issue addressed in my ruling was whether the documents “were fact work product” or “opinion work product, ”[2] and-if the latter-whether Humana had “show[n] that it ha[d] substantial need for the materials . . . and c[ould] not, without undue hardship, obtain their substantial equivalent by other means.” See Aggrenox, 2017 WL 5885664, at *5-*6. I concluded that the documents were fact work product. First, I noted that Boehringer might be “collaterally estopped from relitigating whether the FTC documents are fact work product or opinion work product.”[3] Id. at *7. The D.C. federal courts had held that the documents were fact work product, and I concluded that the requirements for collateral estoppel were met. See Id. at *7-*10. Second, “even if collateral estoppel did not apply, ” I indicated that “I would independently hold that the FTC documents are fact work product.” Id. at *10. The documents-“PowerPoint presentations, charts, graphs, and tables analyzing possible factual scenarios affecting the [Aggrenox] settlement, ” id. at *6 (quoting Boehringer III, 180 F.Supp.3d at 25)-“‘contain[ed] only factual information . . . produced by non-lawyers' and ‘d[id] not reflect [counsel]'s assessments of the viability of success of Boehringer's litigation or settlement strategy.'” Id. at *11 (quoting Boehringer II, 778 F.3d at 152; Boehringer III, 180 F.Supp. at 27). “[B]ecause the FTC documents d[id] not ‘propose[ ] possible legal theories or strategies' or ‘ma[ke] predictions about the likely outcome of litigation, '” I held that they were “not entitled to the ‘[s]pecial treatment for opinion work product'” under Second Circuit precedent. Id. (quoting United States v. Adlman, 134 F.3d 1194, 1196-97 (2d Cir. 1998)).

         Having determined that the FTC documents were fact work product, I proceeded to consider whether Humana had made “an adequate showing of substantial need for the document[s] and an inability to obtain [their] contents elsewhere without undue hardship.” Id. at *12 (quoting Adlman, 134 F.3d at 1203). With respect to “substantial need”-the precise meaning of which, I noted, was “not clear from the plain language of the rule, ” id. (quoting Boehringer II, 778 F.3d at 154)-I relied upon district court decisions from this circuit that held “[a] substantial need exists ‘where the information sought is “essential” to the party's defense, is “crucial” to the determination of whether the defendant could be held liable for the acts alleged, or carries great probative value on contested issues.'” Id. (quoting Gucci Am. v. Guess?, Inc., 271 F.R.D. 58, 74-75 (S.D.N.Y. 2010); Nat'l Cong. for P.R. Rights v. City of New York, 194 F.R.D. 105, 110 (S.D.N.Y. 2000)). After examining the documents in camera, I concluded that the FTC documents had “unique value” and potentially “carrie[d] great probative value on contested issues” because they “provide[d] unique information about Boehringer's reasons for settling in the manner that it did.” Id. at *14 (quoting Boehringer II, 778 F.3d at 155, 158; Gucci Am., 271 F.R.D. at 75). Therefore, I held that “Humana ha[d] sufficiently shown ‘substantial need' for the documents under Rule 26(b)(3).” Id. at *14 (quoting Gucci Am., 271 F.R.D. at 75).

         With respect to “undue hardship, ” I observed that “[w]hat hardship is ‘undue' depends on both the alternative means available and the need for continuing protection from discovery.” Id. at *15 (quoting FTC v. Grolier, Inc., 462 U.S. 19, 31 n.2 (1983)). “Undue hardship d[id] not mean that [Humana] must prove that obtaining the information elsewhere [was] absolutely impossible, ” Lagace v. New Eng. Cent. R.R., 2007 WL 2889465, at *2 (D. Conn. Sept. 28, 2007); instead, Humana was only required to “show . . . that ‘it [was] likely to be significantly more difficult, time-consuming or expensive to obtain the information from another source than from the factual work product of the objecting party.'” Id. (quoting Strauss v. Credit Lyonnais, 242 F.R.D. 199, 237 (E.D.N.Y. 2007)). I held that Humana had satisfied the test for “undue hardship” because it could not “feasibly . . . obtain[]” the FTC documents' “financial data . . . through oral questions, ” id. at *16, and because even Humana's own calculations from Boehringer's sales and pricing data would not be “equivalent” to the FTC documents' “‘contemporaneous' indications of how Boehringer ‘underst[ood] . . . the financial impact of the alleged anticompetitive agreement.'” Id. (quoting Boehringer II, 778 F.3d at 158).

         Thus, I concluded that “Humana ha[d] shown ‘substantial need' and ‘undue hardship' sufficient to overcome Boehringer's fact work product privilege in the FTC documents.” Id. I granted Humana's motion to compel and ordered Boehringer to produce the 29 FTC documents that related to the Aggrenox reverse-payment settlement. Boehringer produced the documents to Humana on December 14-15, 2017. See Mem. Supp. Mot. to Certify Order for Interlocutory Appeal, Doc. No. 744-1, at 6 (hereinafter “Mem. Supp.”).

         On December 26, 2017, Boehringer filed a motion to certify my ruling on the motion to compel for interlocutory appeal under 28 U.S.C. § 1292(b). Mot. to Certify Order for Interlocutory Appeal, Doc. No. 744. Humana opposed Boehringer's motion on January 16, 2018. Mem. Opp'n Mot. to Certify Order for Interlocutory Appeal, Doc. No. 751 (hereinafter “Mem. Opp'n”). I elected to rule on the papers without a hearing.

         III. ...


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