Edgar et al v. Teva Pharmaceuticals Industries, Ltd. et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DENA BURGE, LEIGH HOCKETT,
JORDAN FURLAN, CRISTINE RIDEY,
PATRICIA SAWCZUK, and ANNE ARUNDEL
COUNTY, individually and on
behalf of all others similarly situated,
Plaintiffs,
v.
TEVA PHARMACEUTICALS
INDUSTRIES, LTD.,
TEVA PHARMACEUTICALS USA, INC.,
TEVA PARENTERAL MEDICINES, INC.,
TEVA NEUROSCIENCE, INC.,
TEVA SALES & MARKETING, INC., and
CEPHALON, INC.,
Defendants.
Case No. 22-cv-2501-DDC-TJJ
MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Compel Consumer Plaintiffs’
Deposition Testimony (ECF No. 273). Defendants request an order compelling Plaintiffs Burge,
Hockett, Furlan, Ridey, and Sawczuk (the “Consumer Plaintiffs”)1 to answer deposition questions
inquiring into “how” and “from whom” they learned facts they relied upon to bring their claims,
in anticipation of privilege objections to those questions. Plaintiffs filed their Brief Regarding
Anticipated Deposition Objections (ECF No. 274). As explained below, Defendants’ motion is
granted.
1 Plaintiff Anne Arundel County joins in the Consumer Plaintiffs’ Brief. It also raised the same
issue in its Motion for a Protective Order Related to Teva’s Rule 30(b)(6) Notice (ECF No. 271).
Case 2:22-cv-02501-DDC-TJJ Document 284 Filed 01/08/26 Page 1 of 8

2
I. 	Brief Background of the Phase I Discovery Dispute2
Defendants intend to depose each of the Consumer Plaintiffs and ask the following
questions: (1) “What specific facts did you learn concerning your potential claims in this Action?”
(2) “When did you first learn those facts?” (3) “How did you learn those facts?” and (4) “From
whom did you learn those facts?” The Consumer Plaintiffs do not dispute Defendants may ask
what facts the Consumer Plaintiffs learned or when they learned them, but intend to assert privilege
objections to these “how” and “from whom” questions if the facts came from their counsel.
On December 16, 2025, the Court held a discovery conference at the request of Defendants
regarding the anticipated privilege objections during the Consumer Plaintiffs’ depositions.3 After
reviewing the parties’ submissions and hearing arguments from counsel, the Court concluded it
could not provide meaningful guidance on the parties’ dispute based on the parties’ brief
submissions and ordered the parties to confer and provide their proposal for briefing the dispute.
Defendants filed their motion and Plaintiffs filed their brief regarding anticipated
deposition objections simultaneously on December 23, 2025. Defendants request the Court instruct
the Consumer Plaintiffs to answer deposition questions regarding the source of their factual
knowledge over any privilege objections. The Consumer Plaintiffs request the Court prohibit
Defendants from probing attorney-client communications, including identifying counsel as the
source of information.
2 The background of this case is set forth in more detail in the Court’s other Phase I discovery
rulings (ECF Nos. 152, 153, 181, 202, 226). This case is currently bifurcated in Phase I to discovery focused
on the pivotal issues of the timeliness of Plaintiffs’ claims under the applicable statutes of limitations and
the related issues of tolling and fraudulent concealment. See July 15, 2024 Phase I Sch. Order (ECF No.
92) at 2. The deadline for completion of Phase I depositions is January 16, 2026. Third Am. Phase I Sch.
Order (ECF No. 216).
3 Dec. 16, 2025 Discovery Conf. Order (ECF No. 270).
Case 2:22-cv-02501-DDC-TJJ Document 284 Filed 01/08/26 Page 2 of 8

3
II. 	Summary of the Parties’ Arguments
Defendants argue the Court should reject Plaintiffs’ privilege argument because questions
inquiring “how” and “from whom” they learned facts they relied upon to bring their claims do not
implicate attorney-client privilege or call for privileged communications. Defendants argue they
are not seeking communications of facts from the Consumer Plaintiffs to their lawyers for the
purpose of obtaining legal advice, but rather only seeking the source of the facts that the Consumer
Plaintiffs relied on to bring their claims, i.e., who provided the Consumer Plaintiffs with those
facts and how each Consumer Plaintiff obtained those facts. Defendants contend answers to these
questions are critical to determining when and how the facts underlying Plaintiffs’ claims were
discoverable through due diligence and Plaintiffs’ actual, constructive, or inquiry notice of their
claims. Defendants contend these are not privileged inquiries, arguing statements by an attorney
to his client reporting information obtained from public sources or elsewhere are not covered by
the attorney-client privilege.
Plaintiffs argue Defendants ask this Court to authorize an extraordinary intrusion into the
attorney-client privilege. Through deposition questions framed as “how” or “from whom”
Plaintiffs learned facts relevant to their claims, Plaintiffs argue Defendants seek to compel
Plaintiffs to disclose attorney-client communications—by forcing them to identify counsel as the
source of information or to reveal what counsel conveyed. Plaintiffs contend that result would
invert one of the most settled principles of American law. They argue the law draws a clear line—
parties may discover facts and timing but they may not compel disclosure of attorney-client
communications. According to Plaintiffs, identifying counsel as the source of information
discloses far more than a historical fact. It would reveal that legal advice was sought, the subject
matter of that advice, and the substance of what counsel conveyed.
Case 2:22-cv-02501-DDC-TJJ Document 284 Filed 01/08/26 Page 3 of 8

4
III. 	Legal Standards
The attorney-client privilege “protects confidential communications by a client to an
attorney made in order to obtain legal assistance from the attorney in his capacity as a legal
advisor.”4 The privilege also protects advice given by the lawyer in the course of representing the
client.5 The privilege covers communications from client to attorney and from attorney to client,
“at least those attorney to client communications which would have a tendency to reveal the
confidences of the client.”6 The Tenth Circuit has made clear that not all communications from an
attorney are privileged; rather the inquiry is directed toward the content of the communication,
considering whether that content included legal advice or tended to reveal confidences of the client,
or included instead merely facts from other sources.7 Information is not privileged simply because
it comes from an attorney.8 When an attorney is merely acting as a conduit for non-confidential
information, the client may not invoke the attorney-client privilege.9
The party asserting the privilege bears the burden of establishing its applicability.10
4 New Jersey v. Sprint Corp., 258 F.R.D. 421, 425 (D. Kan. 2009) (citation omitted).
5 Id. (citing Upjohn Co. v. United States, 449 U.S. 383, 390 (1981)).
6 In re Grand Jury Proceedings, 616 F.3d 1172, 1182 (10th Cir. 2010).
7 Sprint Commc'ns Co. L.P. v. Comcast Cable Commc'ns LLC, No. 11-2684-JWL, 2014 WL
5581274, at *3 (D. Kan. Oct. 31, 2014) (citing Grand Jury Proceedings, 616 F.3d at 1182–83).
8 In re Grand Jury Subpoena to Kan. City Bd. of Pub. Utilities, 246 F.R.D. 673, 679 (D. Kan. 2007).
9 See Grand Jury Proceedings, 616 F.3d at 1182–84 (holding the client could not invoke the
attorney-client privilege to questions requesting only “conduit” non-confidential information—where a
“third party’s statement was passed along by the attorney to the client” if answering did not require the
attorney directly or indirectly to reveal the substance of any legal confidence).
10 Motley v. Marathon Oil Co., 71 F.3d 1547, 1550 (10th Cir. 1995).
Case 2:22-cv-02501-DDC-TJJ Document 284 Filed 01/08/26 Page 4 of 8

5
Moreover, a party must make a “clear showing” that the privilege applies. 11 The existence of the
privilege is determined on a case-by-case basis.12
Under Fed. R. Civ. P. 30(c)(2), a deponent may be instructed not to answer “only when
necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion
under Rule 30(d)(3).” 	The District of Kansas Deposition Guidelines likewise allow counsel to
direct or request that a deponent not answer a question in limited circumstances:
(1) counsel has objected to the question on the ground that the answer is protected
by privilege, work product immunity, or a limitation on evidence directed by the
Court; or (2) the direction not to answer is necessary to allow a party or deponent
to present a Fed. R. Civ. P. 30(d) motion to the Court.13
However, the Guidelines further provide when privilege or work product immunity is asserted,
“the witness is nevertheless required to answer questions relevant to the existence, extent, or
waiver of the privilege/immunity, such as the date of a communication, who made it, to whom it
has been disclosed, and its general subject matter.” 14
IV. 	Whether the Deposition Questions Implicate or Call For Privileged Communications
The Court finds that Consumer Plaintiffs have not met their burden. They have not made a
clear showing that the attorney-client privilege applies to the specific and narrow deposition
questions at issue in this motion. The Consumer Plaintiffs have already agreed to answer
deposition questions inquiring into what facts they learned concerning their potential claims and
when they learned them. However, if these facts came from their counsel, the Consumer Plaintiffs
11 In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., No. 17-MD-
2785-DDC-TJJ, 2021 WL 2875514, at *2 (D. Kan. July 8, 2021).
12 Id.
13 D. Kan. Deposition Guideline § 5(b), https://www.ksd.uscourts.gov/deposition-guidelines.
14 Id.
Case 2:22-cv-02501-DDC-TJJ Document 284 Filed 01/08/26 Page 5 of 8

6
then intend to object on the basis of attorney-client privilege to follow-up questions on how they
learned those facts and from whom they learned those facts. From the Court’s viewpoint, as a
practical matter, the Consumer Plaintiffs’ mere assertion of a privilege objection to these
deposition questions would essentially signal the answer that the referenced fact came from
counsel.
Nor have the Consumer Plaintiffs explained how answering questions that certain facts
were 	learned 	from 	their 	counsel 	would 	disclose 	the 	substance 	of 	any 	attorney-client
communications or any legal advice from their attorneys regarding those facts. The Consumer
Plaintiffs have already served interrogatory responses stating: (i) “there were enough facts publicly
available to bring a claim in June 2021 when this Court released its summary judgment order and
unsealed related exhibits in [the EpiPen MDL]” and (ii) each Consumer Plaintiff “learned about
these facts from [their] attorneys in this case after October 10, 2022.”15 Plaintiffs’ argument that
Defendants are requesting an extraordinary intrusion into the attorney-client privilege pales
considerably when viewed in light of the fact that Plaintiffs have already voluntarily disclosed they
learned the facts to support their claims from their attorneys, albeit after October 10, 2022.
It follows that Defendants should be permitted to ask the Consumer Plaintiffs deposition
questions following up on their interrogatory responses. Simple questions of “how” or “from
whom” they learned facts concerning their potential claims do not require the direct or indirect
disclosure of the substance of attorney-client communications or legal advice provided by the
Consumer Plaintiffs’ attorneys. Plaintiffs’ argument that the Supreme Court’s Upjohn decision
forbids these deposition questions is not particularly helpful here because that opinion involved
15 Pl. Furlan’s Second Am. Resp. to Interrog. 4 (ECF No. 273-1) at 13.
Case 2:22-cv-02501-DDC-TJJ Document 284 Filed 01/08/26 Page 6 of 8

7
facts 	conveyed 	via 	client-to-attorney 	communications 	rather 	than 	attorney-to-client
communications.16 For attorney-to-client communications, the privilege inquiry looks toward “the
content of the communication, considering whether that content included legal advice or tended to
reveal confidences of the client, or included instead merely facts from other sources.17 The
Consumer Plaintiffs have not shown how answering questions inquiring “how” or “from whom”
they learned facts concerning their potential claims would reveal, either directly or indirectly, any
legal advice or client confidences. Moreover, as this Court’s deposition guidelines explain, even
when privilege or work product immunity is asserted, “the witness is nevertheless required to
answer questions relevant to the existence, extent, or waiver of the privilege/immunity, such as the
date of a communication, who made it, to whom it has been disclosed, and its general subject
matter.”18
To the extent the Consumer Plaintiffs assert attorney-client privilege objections to
deposition questions inquiring into “how” and “from whom” they learned facts they relied upon
to bring their claims, the Consumers Plaintiffs have not met their burden to show the attorney-
client privilege applies to these questions and their objections are overruled. As the Court is
overruling the Consumer Plaintiffs’ privilege objections to the “how” and “from whom” deposition
questions, it need not address Defendants’ second argument regarding waiver of privilege.
IT IS THEREFORE ORDERED that Defendants’ Motion to Compel Consumer
16 See Upjohn, 449 U.S. at 396 (“The client cannot be compelled to answer the question, ‘What did
you say or write to the attorney?’ but may not refuse to disclose any relevant fact within his knowledge
merely because he incorporated a statement of such fact into his communication to his attorney.”).
17 Sprint Commc'ns, 2014 WL 5581274, at *3 (citing Grand Jury Proceedings, 616 F.3d at 1182–
83).
18 D. Kan. Deposition Guideline § 5(b), https://www.ksd.uscourts.gov/deposition-guidelines.
Case 2:22-cv-02501-DDC-TJJ Document 284 Filed 01/08/26 Page 7 of 8

8
Plaintiffs’ Deposition Testimony (ECF No. 273) is granted. The Court overrules the Consumer
Plaintiffs’ objections asserting attorney-client privilege to deposition questions inquiring into
“how” and “from whom” they learned facts they relied upon to bring their claims.
IT IS SO ORDERED.
Dated January 8, 2026, at Kansas City, Kansas.
Teresa J. James
U. S. Magistrate Judge
Case 2:22-cv-02501-DDC-TJJ Document 284 Filed 01/08/26 Page 8 of 8