Antitrust Law Daily Wrap Up, ANTITRUST—D. Kan.: Court allows addition of in-house attorney as custodian in Teva antitrust action, (Apr 21, 2025)

By Patricia K. Ruiz, J.D.

Teva showed the county’s exclusion of any in-house attorney from its legal office as a custodian causes their resulting production to be deficient.

The federal district court in Kansas City, Kansas granted in part and denied in part a motion by pharmaceutical defendants requesting three additional custodians to be added for Phase I discovery in a lawsuit alleging Sherman Act and Racketeer Influenced and Corrupt Organizations Act (RICO) violations. The court found that Teva only showed one of the three attorneys requested has files that are likely to contain relevant, non-duplicative documents responsive to Phase I and should be added as a custodian (Burge v. Teva Pharmaceutical Industries, Ltd., No. 2:22-cv-02501-DDC-TJJ (D. Kan. Apr. 14, 2025)).

Teva Pharmaceutical Industries Ltd. owns the patents to Nuvigil®, a drug generically known as armodafinil, that promotes wakefulness and is indicated for treating patients who have various sleep disorders. Mylan N.V., (Mylan) a pharmaceutical company that has since been absorbed into an entity known as Viatris Inc., was licensed by Pfizer, Inc. (Pfizer) to manufacture and distribute the EpiPen® brand of epinephrine auto-injectors used by people prone to anaphylactic reactions.

Mylan endeavored to bring generic armodafinil to market and was sued by Teva for patent infringement. Teva had sought to purvey its own generic epinephrine auto-injector and was sued by Pfizer and Mylan over it. The Teva-Mylan lawsuits were settled through a set of agreements whereby (1) Teva paid Mylan to delay its marketing of generic armodafinil, thereby extending Teva's Nuvigil® monopoly; and (2) Teva agreed to refrain from purveying generic epinephrine auto-injectors, thereby extending Mylan's EpiPen® monopoly.

Lawsuit; procedural history. Individuals, entities, and governmental units filed a putative class action lawsuit against Teva and related entities, alleging that the combined EpiPen® and Nuvigil® lawsuit settlements violated the antitrust laws and the RICO statutes. The many of the claims were dismissed, but dismissal was denied for the Sherman Act claims and some state law claims in a district court ruling in March 2024. In November 2024, the court declined to certify for interlocutory appeal to the Tenth Circuit questions regarding tolling of the statute of limitations and the question of whether an exchange of otherwise legal lawsuit settlements can serve as a basis for an antitrust claims.

In February 2025, the court ruled on several motions to compel discovery responses filed by Teva Pharmaceutical Industries, Ltd., in a suit alleging it conspired to safeguard its prescription drug. The court also ruled in a separate order that Teva must produce all documents relating to public statements regarding Teva’s settlements of patent litigation related to the EpiPen, Nuvigil, or any other form of Armodafinil, whether or not actually made, including but not limited to drafts of such statements and/or Communications regarding such statements.

Motion to compel. Teva requested an order compelling Anne Arundel County to designate three additional custodians—all in-house attorneys—for purposes of Phase I document collection and production and to produce responsive documents from those custodians. Teva argued the relief is warranted because: (1) the county’s substantially complete document production does not include documents on numerous Phase I topics, and the documents it has produced demonstrate that many of the Phase I topics fall within the purview of the county’s legal office, yet no in-house attorneys are currently designated as Phase I custodians; (2) the county’s discovery responses demonstrate additional custodians likely have relevant, non-duplicative documents responsive to Phase I; and (3) the county has not and cannot substantiate its argument that any purported undue burden outweighs the likely benefit of the proposed additional discovery. The county opposed the motion.

The court found persuasive Teva’s arguments regarding the likely involvement of the county’s in-house attorneys in activities relevant to the pivotal issues of timeliness. It also found persuasive Teva’s argument that the county’s exclusion of any in-house attorney from its legal office as a custodian causes their current custodian designations and resulting production to be deficient. Teva satisfied its initial burden to show the county’s document production resulting from its existing five custodians is deficient. The court further determined which of the requested attorneys, if added as custodian, has files that are likely to contain relevant, non-duplicative documents responsive to Phase I and should be added as another Phase I custodian. With respect to the other two requested attorneys, the court found Teva did not show them to be key persons likely to have relevant, non-duplicative Phase I timeliness discovery.

The court ordered that the county designate that attorney as a Phase I custodian and search his files and records to determine whether they contain documents responsive to the Phase I timeliness topics.

The Case is No. 2:22-cv-02501-DDC-TJJ.

Judge: James, T.

Attorneys: Alison Elizabeth Chase (Keller Rohrback, LLP) for Dena Burge. Hammons P. Hepner (Sharp Law, LLP) for Jordan Furlan. Ruth Anne French (Sharp Law, LLP) for Patricia Sawczuk. Alexandra Russell (Goodwin Procter LLP) for Teva Pharmaceuticals Industries, Ltd.

Companies: Teva Pharmaceuticals Industries, Ltd.

Cases: Antitrust RICO KansasNews