Also requested Merix docs:
1. SUPPLEMENTAL MEMORANDUM
Peregrine seeks highly relevant materials in its subpoena to Merix
Pharmaceuticals ("Merix") that were previously produced by CSM to Merix in
Merix Pharmaceuticals Corporation v. Clinical Supplies Management, Inc., No. 11-
CV-03318 (N.D. Ill.) (the "Merix Litigation") involving similar issues. CSM did
not seek a protective order in either case or even serve objections to the subpoena.
Merix's counsel in that litigation is prepared to turn over the materials CSM
produced to him, but he contends he cannot do so in light of the Protective Order in
that case which prohibits him from producing documents marked as "Confidential."
CSM has thus far withheld consent to his production. The Court should accordingly
Order CSM to communicate written consent to the production or, alternatively,
grant Peregrine's Motion to Compel CSM's Production of the subpoenaed materials
that were produced in the Merix Litigation.
A. Peregrine Is Entitled To The Material Produced By CSM In The
Merix Litigation
The Ninth Circuit strongly favors access to discovery materials to meet the
needs of parties in collateral litigation. Foltz v. State Farm Mutual Automobile
Insurance Co., 331 F.3d 1122, 1131 (9th Cir. 2003); Dukes v. Wal-Mart Stores, Inc.,
2014 U.S. Dist. LEXIS 109436 *6 (N.D. Cal.). "Allowing the fruits of one litigation
to facilitate preparation in other cases advances the interests of judicial economy by
avoiding the wasteful duplication of discovery." Foltz, 331 F.3d at 1131.
In connection with this principle, collateral litigants may be entitled to modify
a protective order in the first case to permit access to covered material. Id. Such
modification can be denied only where it would "tangibly prejudice substantial
rights of the party opposing modification." Id. at 1132. Where reasonable
restrictions on collateral disclosure will continue to protect an affected party's
privacy interests, a collateral litigant's request to modify a protective order so that it
is not precluded from obtaining relevant material should generally be granted. Id.
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There are three steps involved in modifying a protective order to permit
protected materials to be discoverable in collateral litigation. First, the collateral
litigant must demonstrate the protected discovery is relevant to the collateral
proceedings, and is generally discoverable therein. Id. Second, the court must
decide whether modifying the protective order will eliminate the potential for
duplicative discovery. Id. at 1133. Third, the court overseeing the collateral
litigation determines the ultimate discoverability of the material covered by the
protective order. Id. at 1133.
Whatever materials Merix produces to Peregrine from that litigation also can
maintain that protection and also be designated "Confidential" or "Attorneys' Eyes
Only" under the Protective Order in this case. There is no reason for production to
be thwarted.
To promote judicial efficiency and reduce costs in this case, this Court should
grant Peregrine's Motion and either order CSM to consent to Merix's release of the
subpoenaed material, or order CSM to produce the materials that it produced to
Merix itself. Peregrine should not have to bring this motion in the Illinois case,
particularly since CSM never objected to the subpoena and it would have no basis to
resist release of the information.
1. The Materials Produced By CSM In The Merix Litigation Are Relevant To And Discoverable In This Litigation
Whether material is relevant depends on the degree of overlap in the parties,
facts, and issues. Foltz, 331 F.3d at 1132. CSM is a defendant in both this case and
the Merix Litigation. Further, the issues and facts in the Merix Litigation appear to
overlap substantially with those in this case, including: (1) CSM's vial labeling and
distribution protocol; (2) training of CSM personnel common to both trials; (3) CSM
standard operating procedures, and whether the SOPs were followed and monitored;
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(4) the cause for the placebo drug contamination; (5) the role of quality assurance
personnel; and (6) whether any mishandling of trial product was intentional.1
Under Federal Rule of Civil Procedure 26(b), parties may obtain discovery of
any nonprivileged matter relevant to its claim. "Relevant information need not be
admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence." FRCP 26(b). The material produced by CSM in
the Merix Litigation is directly relevant to the claims in this case, and will likely
lead to the discovery of additional admissible evidence. Any confidentiality
concerns CSM may raise can be bolstered by the Protective Order in the present
case.
2. CSM Will Not Be Prejudiced By Production Of The
Subpoenaed Materials
Peregrine has agreed that any material produced pursuant to its subpoena to
Merix will retain the confidentiality designations previously given in the Merix
Litigation. They can be supplemented with similar designations in this case. CSM
will not suffer any prejudice due to lost confidentiality or other protection. Costs
will also be avoided if the Court grants the present Motion and the parties are not
required to litigate the issue in the Northern District of Illinois.
Further, even if CSM could demonstrate prejudice, the court has broad
discretion to fashion appropriate relief. Grove Fresh Distribs. v. Everfresh Juice
Co., 24 F.3d 893, 896 (7th Cir. 1994).
2. CONCLUSION
The Court should grant Peregrine's Motion and compel CSM to consent to
Merix's release of the subpoenaed material produced by CSM in the Merix
1 As an example, at trial CSM produced a 20 minute video for the jury to
consider, demonstrating how it labels vials in a clinical trial. (Docket No. 447; Hoge Declaration.) That information is clearly highly relevant in the present case from the standpoint of CSM's practices and whether it deviated from those practices.
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Litigation, or, alternatively, order CSM to produce the materials directly to
Peregrine.
DATED: February 10, 2015 KIRBY NOONAN LANCE & HOGE LLP
By: /s/ Charles T. Hoge
Charles T. Hoge
Genevieve M. Ruch
Attorneys for Plaintiff Peregrine
Pharmaceuticals, Inc.
