It’s an old time Western movie cliché: after a shoot-out commences in a saloon, the piano-player meekly holds up his hands and pleads, “Don’t shoot me, I’m only the piano player.” He had no role in the fight. The phrase got subverted in Francois Truffaut’s second film, Shoot the Piano Player (that’s Tirez Sur la Pianiste to you quiche-eaters), a film we like even better than Truffaut’s earlier masterpiece (The 400 Blows), and later ones (e.g., Jules & Jim, The Last Metro). The lead character in Shoot the Piano Player is – quelle surprise – a piano player. He comes from a family of crooks and does his best to avoid their company and their capers. He does his best to stay uninvolved. But his best isn’t good enough, and tragedy ensues. It is as if Truffaut was saying that, like it or not, we are all involved.
We’re not saying that the plaintiffs and judge in King v. Solvay S.A, 2014 U.S. Dist. LEXIS 120284 (D. Colorado August 28, 2014), are fans of the French New Wave, but they certainly show no compunction about shooting the piano player. Because of the plaintiffs’ ambitions and the judge’s rulings, a minding-its-own-business-third-party-drug-compendium-publisher gets hit between the eyes with abusive discovery buckshot.
King already had all the makings of abusive litigation. It is a qui tam case brought by Relators in the Southern District of Texas alleging that a pharmaceutical company marketed certain medicines in violation of the Anti-Kickback Statute. Sound familiar? The unfortunate piano player in this tale is Truven, the publisher of a drug compendium called the Drugdex Information System. The court points out that “Government healthcare programs, including Medicaid, rely on Drugdex to support reimbursement of drugs prescribed for otherwise non-reimbursable off-label use.” The Relators alleged that the pharmaceutical defendant “committed fraud on or with Truven to obtain preferable reimbursement status for its three drugs.” Note that “on or with.” Apparently, the Relators believed that Truven was either a coconspirator or a victim, but either way, it needed to put its hands up and have its pockets emptied of documents, dollars, or anything else that the Relators might find useful or amusing.
Truven is not a party in the Texas lawsuit. But that did not stop it from having to produce 20,000 pages of documents, several employees who were subjected to interviews by the Relators’ lawyers, and two employees for depositions because they supposedly possessed knowledge of issues that “the Relators have identified as relevant.” That sounds like a lot for a non-party. It sounds like a pain. It sounds expensive. It certainly sounds like enough, oui?
The Relators did not think so. They weren’t through with Truven yet. They issued four subpoenas for depositions of Truven employees in Denver, Colorado. Truven had had enough, so it filed a motion to quash in federal court in Colorado. Truven argued that the four additional employees lacked relevant information about both the drugs and Drugdex, the compendium published by Truven referred to in the Fifth [!] Amended Complaint. The court ended up quashing the deposition subpoena of only one of the four deponents, letting the other three go forward. To our eyes, that’s a pity.
The Relators took Truven to task for waiting until just three days before the depositions to file its motion to quash. Why that was so, and whether that fact colored the court’s reasoning, we cannot say. The Relators also asserted that the federal judge in Texas had voiced some displeasure with Truven’s non-compliance. Again, we don’t know how that affected the Colorado judge, but it certainly couldn’t have helped. The main substantive point urged by the Relators was that the two prior Truven depositions “were far from comprehensive, and resulted in the need for additional discovery.” Whose fault was that? Didn’t the Relators select those earlier deponents? Were the Relators seeking answers in those earlier depositions, or a ticket to more discovery of a third-party? They may not have obtained the former, but they certainly got the latter.
The court ordered that three of the depositions would go forward. Despite their affidavits uniformly asserting that they “have no knowledge of any communications” between Truven and the pharmaceutical company, those three employees were required to be deposed because they either had “on occasion edited content [in Drugdex] related to off-label uses of drugs,” or had “general supervisory responsibility for Drugdex” since 2008, or had assisted clinicians “in assessing whether studies in articles reviewed by [them] for possible inclusion.” The employee who was cut loose had stated unequivocally that her job responsibilities “have never included work related to off-label uses of drugs.”
Thus, the magic words appear to be “off-label.” Mind you, as we’ve observed before, there is nothing inherently wrong with off-label use. It might even be the appropriate standard of care. What if the statements in the compendium about off-label use were 100% true? None of that is discussed in the court’s opinion. And we still have no hint as to whether the Relators had a smidgen of evidence showing that any fraud was committed “on or with” Truven. No matter. It was enough for the court that “Truven has not sustained its burden of showing that the information sought from these three employees is not relevant.”
Speaking of burden, what about the unfairness of foisting this discovery burden on a third-party? Now this is possibly the one useful practice pointer that emerges from the Kingcase. The court emphasized that Truven’s argument about burden related “only to the burden it has already shouldered in providing discovery, not the burden of going forward with the employees’ depositions.” We can well understand why Truven would feel the need to point out that its personnel devoted more than 100 hours to searching for responsive records and producing 20,000 pages of material. Moreover, Truven employees devoted days to retrieving and reviewing 300 journal articles from off-site storage. But the court saw no arguments from Truven about the costs “in terms of time, energy or money, of going forward with the employees’ depositions. There is no argument that Truven would incur travel expenses, measurable losses in terms of employee productivity, or even the amount of attorneys’ fees which would be incurred to prepare the employees for and to defend their depositions. The record lacks any evidence relating to the anticipated burden on Truven of going forward with the depositions.” Evidence of burden must be prospective, not only retrospective.
Okay, we get that. But we don’t get why the court saw it necessary to shoot the piano player, or subject the piano player to endless torture-by-discovery.