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Trupp v. Roche Diagnostics Corp.

United States District Court, S.D. Indiana, Indianapolis Division

May 24, 2019

ROBIN TRUPP, Ph.D, Plaintiff,


          Doris L. Pryor United States Magistrate Judge

         This matter comes before the Court on the Defendant's Motion for Protective Order and/or to Quash Non-Party Document Production Subpoenas (Dkt. 55). The motion was referred to the Undersigned for ruling and, for the reasons that follow, is hereby GRANTED IN PART and DENIED IN PART.

         I. Background

         The Plaintiff served as the Director of Medical and Scientific Affairs, Cardiac (“MSA”) for the Defendant, Roche Diagnostics Corporation (“Roche”) from 2015 until she was placed on administrative leave on August 31, 2018. [Dkt. 59 at 1.] The MSA department is responsible for responding to various customer questions regarding the off-label use of medication or devices. [Dkt. 56 at 4.] In early 2018, one of the Plaintiff's subordinates aired some concerns that Roche was “not being transparent in educating and communicating with Roche customers about the Gen 5 STAT assay[1].” [Dkt. 59 at 5.] Both the Plaintiff and her subordinate believed that additional education should be provided to Roche's customers, hospitals and other medical providers, to alert them to potential performance differences. [Dkt. 59 at 5; Dkt. 56 at 4.] In March 2018, the Plaintiff brought these concerns about customer education regarding off-label use to her supervisors. [Dkt. 56 at 5.]

         The Plaintiff claimed that the Defendant retaliated against her for raising concerns about customer education related to off-label use of the Gen 5 STAT assay. [Dkt. 1.] Plaintiff then filed this lawsuit on August 22, 2018, alleging that she had been discriminated against in violation of both the False Claims Act and Family Medical Leave Act[2]. [Id.]

         During the discovery process of this action, Plaintiff previously attempted to serve requests for production and subpoenas to five of the Defendant's customers. During a March 8, 2019 telephonic discovery conference, the Court instructed the Plaintiff that she was not permitted to issue the requests and subpoenas until after depositions and the settlement conference had been completed. The parties participated in an unsuccessful settlement conference on April 25, 2019. Thereafter, on April 30, 2019, the Plaintiff notified the Defendant of her intention to serve requests for production and subpoenas to ten of the Defendant's customers. The parties contacted the Undersigned's chambers to schedule a telephonic discovery conference, which was conducted on May 8, 2019. Pursuant to the briefing schedule issued by the Court, the Defendant filed the present Motion for Protective Order and/or Motion to Quash on May 10, 2019. The Plaintiff filed a response on May 14, 2019 and the Defendant filed a reply on May 17, 2019.

         II. Legal Standard

         Discovery is a mechanism to avoid surprise, disclose the nature of the controversy, narrow the contested issues, and provide the parties a means by which to prepare for trial. 8 Wright & Miller, Federal Practice and Procedure § 2001, at 44-45 (2d ed. 1994). To effectuate these purposes, the federal discovery rules are liberally construed. Spier v. Home Ins. Co., 404 F.2d 896 (7th Cir. 1968). See also 8 Wright & Miller, Federal Practice and Procedure § 2001, at 44 (2d ed. 1994).

         Rule 26 of the Federal Rules of Civil Procedure permits the discovery of nonprivileged matter “that is relevant” to a party's claim or defense and “proportional” to the needs of a case, considering the importance of the issues at stake, the importance of the discovery in resolving those issues, the amount in controversy, and the weighing of burdens and benefits. See Rule 26(b)(1). The Court must restrict the frequency and extent of discovery otherwise permitted under the rules if it determines that “(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C). “Discovery must hew closely to matters specifically described in the complaint lest discovery, because of its burden and expense, become the centerpiece of litigation strategy.” McCartor v. Rolls-Royce Corp., No. 1:08-cv-00133-WTL-DML, 2013 WL 5348536, at *7 (S.D. Ind. Sept. 24, 2013).

         When determining whether to enforce a discovery request, the court must weigh the need for the information, the breadth of the request, the time period the discovery covers, the particularity of the documents, and the burden imposed. United States Securities and Exchange Commission v. Haab, No. 1:15-cv-00659-JMS-MJD, 2016 WL 6610851, at *2 (S.D. Ind. Nov. 9, 2016) (citing Charles v. Quality Carriers, Inc., No. 1:08-cv-00428-RLY-JMS, 2010 WL 396356, at *1 (S.D. Ind. Jan. 28, 2010)). The limits and breadth of discovery expressed in Rule 26 are applicable to non-party discovery under Rule 45. E.G. Advisory Committee Note regarding 1991 amendments to Rule 45 (“non-party witness is subject to the same scope of discovery under this rule as that person would be as a party to whom a request is addressed pursuant to Rule 34.”). Noble Roman's Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304, 306 (S.D. Ind. 2016) (citing Jackson v. Brinker, 147 F.R.D. 189, 193-94 (S.D. Ind. 1993) (internal citations omitted).

         Federal Rule 26(b), describing the scope and limits of discovery, was amended effective December 1, 2015, to once again protect against over-discovery and to emphasize judicial management of the discovery process. United States ex rel. Conroy v. Select Med. Corp., 307 F.Supp.3d 896 (S.D. Ind. 2018). Magistrate judges enjoy extremely broad discretion in controlling discovery. Jones v. City of Elkhart, Ind., 737 F.3d 1107, 1115 (7th Cir. 2013). A court may issue a protective order, on motion or its own initiative, to limit discovery if it is outside the scope permitted by Rule 26(b)(1). Fed.R.Civ.P. 26, 2015 Advisory Committee Notes.

         III. Discussion

         In March 2019, the Plaintiff originally sought to send non-party subpoenas to five (5) of the Defendant's customers. The Plaintiff now seeks to issue non-party subpoenas and requests for production to ten (10) of the Defendant's customers. These customers include several of the most widely known hospital systems in the nation, including Mayo Clinic and Cleveland Clinic. The subpoenas seek all patient, Medicare, and Medicaid billing records related to the Gen 5 STAT assay for a seventeen-month period. The Defendant asks this Court to issue a protective order pursuant to 26(c) because the discovery requests exceed the scope of Rule 26, or to quash the Plaintiff's subpoenas pursuant to Rule 45 because they are unduly burdensome. The Plaintiff argues that the discovery requests are limited and proportional to her contention that she engaged in protected activity under the False Claims Act (“FCA”), or that the Defendant does not have standing to move to quash the subpoena and that creating additional attorney work is not a valid reason for preventing discovery.

         A. ...

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