Burge et al v. Teva Pharmaceutical 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. 26-mc-201-DDC-TJJ
(related to Case No. 22-cv-2501-DDC-TJJ)
MEMORANDUM AND ORDER
This matter is before the Court on the Motion to Quash Subpoena for the Deposition of
Non-Party Attorney Christopher T. Holding (“Motion to Quash”) (ECF No. 1) filed by Defendants
and Mr. Holding (collectively “Defendants”). They request an order quashing the subpoena for the
deposition of Mr. Holding that Plaintiffs served in the related action, Burge, et al. v. Teva
Pharmaceuticals Industries, Ltd. et al., Case No. 22-cv-2501 (D. Kan. filed Dec. 2, 2022). As
explained below, the Motion to Quash is granted.
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I. 	Brief Background of the Phase I Discovery Dispute1
Plaintiffs served a deposition subpoena upon Mr. Holding setting his deposition for
November 13, 2025, in Boston, Massachusetts (the “Subpoena”).2 Mr. Holding is one of the
attorneys currently representing Defendants in this action. On November 10, 2025, Defendants
initiated a miscellaneous action in the District of Massachusetts (25-mc-91527) by filing the
Motion to Quash the Subpoena. On January 6, 2026, the District of Massachusetts granted
Plaintiffs’ motion to transfer the Motion to Quash to the District of Kansas.3 Upon transfer to the
District of Kansas, the case was assigned miscellaneous case number 26-mc-201-DDC-TJJ.
II. 	Legal Standards
The deposition of an attorney for a party is not prohibited by the Federal Rules of Civil
Procedure.4 And while the Federal Rules exempt privileged material from discovery, they “do not
themselves exempt attorneys from being a source of discoverable facts.”5 “Attorneys with
discoverable facts, not protected by attorney-client privilege or work product, are not exempt from
being a source for discovery by virtue of their license to practice law or their employment by a
1 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) in the related Case No. 22-cv-2501. The related case is currently
bifurcated with Phase I 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.
2 Subpoena (ECF No. 3-1). The Subpoena was issued from the District of Kansas.
3 See Mem. & Order (ECF No. 38).
4 See Fed. R. Civ. P. 30(a)(1) (“A party may, by oral questions, depose any person . . . without
leave of court except as provided in Rule 30(a)(2).”) (emphasis added).
5 Fugett v. Sec. Transp. Servs., Inc., No. 14-2291-JAR, 2015 WL 419716, at *2 (D. Kan. Feb. 2,
2015) (quoting United Phosphorous, Ltd. v. Midland Fumigant, Inc., 164 F.R.D. 245, 247 (D. Kan. 1995)).
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party to represent them in litigation.”6
Courts in this District have, however, entered protective orders prohibiting the depositions
of opposing counsel, recognizing the potential for abuse in deposing an opponent’s attorney by
encouraging “delay, disruption of the case, harassment, and unnecessary distractions into collateral
matters.”7 In Shelton v. American Motors Corp.,8 the Eighth Circuit Court of Appeals held that
depositions of opposing counsel should be limited to circumstances where the party seeking to
take the deposition has shown that: “(1) no other means exist to obtain the information except to
depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the
information is crucial to the preparation of the case.”9 In Boughton v. Cotter Corp.,10 the Tenth
Circuit affirmed this heightened requirement for deposing opposing counsel, holding that
ordinarily the trial court has the discretion under Fed. R. Civ. P. 26(c) to issue a protective order
against the deposition of opposing counsel when any one or more of the three criteria set forth in
6 Id.
7 Nelson v. Hardacre, 312 F.R.D. 609, 614 (D. Kan. 2016); DeWitt v. Sw. Bell Tel. Co., No. 12-
2605-SAC, 2014 WL 695744, at *6 (D. Kan. Feb. 24, 2014); Ed Tobergte Assocs. Co. v. Russell Brands,
LLC, 259 F.R.D. 550, 554 (D. Kan. 2009).
8 805 F.2d 1323, 1327 (8th Cir. 1986).
9 Shelton, 805 F.2d at 1327. Some courts in this district have referred to this heightened standard
as the “Simmons criteria” as they were first utilized in this district in Simmons Food, Inc. v. Willis, 191
F.R.D. 625, 630 (D. Kan. 2000). Nelson, 312 F.R.D. at 614.
10 65 F.3d 823, 829–30 (10th Cir. 1995).
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Shelton v. American Motors Corp. are not met.11 Courts applying the Shelton criteria place the
burden of establishing the three criteria on the party seeking to take the deposition of opposing
counsel.12
III. 	Whether Plaintiffs Have Met Their Burden Under the Shelton Criteria to Depose
Defendants’ Counsel
Plaintiffs, as the party seeking the deposition of Mr. Holding, have the burden to show that
all three Shelton criteria are satisfied.13 Plaintiffs state they seek to depose Mr. Holding solely as
a fact witness about “(1) communications with regulators about the Nuvigil and EpiPen
Settlements, (2) communications with Mylan and Pfizer’s counsel about these settlements, and (3)
communications with Teva that implicate Teva’s concealment of the relatedness of the Nuvigil
and EpiPen Settlements.”14 Plaintiffs state they “will not examine Mr. Holding about Teva’s
11 Defendants contend the Court should apply the Shelton factors to the subpoena served upon Mr.
Holding, arguing that the First Circuit has applied a similar test in Bogosian v. Woloohojian Realty Corp.,
323 F.3d 55, 66 (1st Cir. 2003) (appropriate factors for motion to quash subpoena served upon opposing
counsel are “whether (i) the subpoena was issued primarily for purposes of harassment, (ii) there are other
viable means to obtain the same evidence, and (iii) to what extent the information sought is relevant,
nonprivileged, and crucial to the moving party's case.”). In their response, Plaintiffs argue the Court should
not apply the rigid Shelton factors and burden framework to the Subpoena for Mr. Holding’s deposition.
The Court rejects Plaintiffs’ arguments and will apply the Shelton factors and burden framework here.
Plaintiffs have not offered any persuasive arguments that convince the Court a shift to the Bogosian test is
warranted here. In any event, the Court finds the Shelton and Bogosian tests are similar or functionally
equivalent and the Court would reach the same result under either. That is, under the heightened standard
of either test for requests to depose opposing counsel, the deposition should not be allowed because the
information sought from Mr. Holding can be obtained from other sources and in part would not appear to
even be relevant.
12 Ed Tobergte Assocs., 259 F.R.D. at 555.
13 Id. at 555. See also Boughton, 65 F.3d at 830 n. 10 (finding the burden was on plaintiffs to
establish that the Shelton criteria were met to take the deposition of defense counsel).
14 Pls.’ Resp. (ECF No. 29) at 16–17. The “EpiPen Settlement” is the settlement of the litigation
captioned King Pharm., Inc., et al, v. Teva Parenteral Med., Inc., et al., No. 1:09-cv-00652 (D. Del. Aug.
8, 2009). The “Nuvigil Settlement” is the settlement of the litigation captioned Cephalon, Inc. v. Mylan
Pharms., Inc., No. 1:09-cv-00954 (D. Del. Dec. 11, 2009). The “EpiPen MDL” is the District of Kansas
multidistrict litigation captioned In re: EpiPen, No. 17-md-2785, and all actions consolidated within it.
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litigation strategy in the underlying action, ensuring the deposition remains within proper factual
bounds.” 15
In order to determine whether Plaintiffs should be permitted to depose Mr. Holding, the
Court analyzes the information Plaintiffs seek from Mr. Holding under the three Shelton criteria.
For each of the three proposed areas of inquiry, Plaintiffs must show (1) no other means exist to
obtain this information except to depose Mr. Holding; (2) the information sought is relevant and
nonprivileged; and (3) the information is crucial to the preparation of Plaintiffs’ case.
A. 	Communications with Regulators and Mylan and Pfizer’s Counsel About the
Nuvigil and EpiPen Settlements
Plaintiffs argue Mr. Holding is uniquely positioned to provide the information they seek
regarding communications with regulators about the Nuvigil and EpiPen Settlements. They point
out Mr. Holding signed the MMA letters on Teva’s behalf disclosing the EpiPen Settlement and
Nuvigil Settlement to regulators.16 He is the lone signatory on those letters making representations
to regulators that the EpiPen and Nuvigil Settlements were not contingent upon any other
agreements. Plaintiffs also claim that Mr. Holding “appears to have discussed Teva’s MMA letters
with Mylan/Pfizer’s counsel.”17 Plaintiffs contend there is no substitute for Mr. Holding’s
deposition testimony about these important communications and his unique knowledge on this
15 Id.
16 MMA letters are filings made pursuant to the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003 (“MMA”), which requires certain agreements between brand-name drug
manufacturers and generic drug applicants be filed with the Federal Trade Commission (“FTC”) and the
Department of Justice. Pharmaceutical Agreement Filings, Federal Trade Comm'n (Mar. 17, 2026),
https://www.ftc.gov/advice-guidance/competition-guidance/industry-guidance/competition-health-care-
marketplace/pharmaceutical-agreement-filings. Mr. Holding signed MMA letters to the FTC dated May 2,
2012 that enclosed the Binding Term Sheets for the Nuvigil Settlement and EpiPen Settlement. Pls.’ Resp.
Exs. 2 and 3 (ECF Nos. 29-2 and 29-3) (sealed).
17 Pls.’ Resp. (ECF No. 29) at 18.
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critical issue of fact. Plaintiffs also argue Mr. Holding is uniquely positioned to discuss his
conversations with federal regulators and Mylan and Pfizer’s counsel about Teva’s regulatory
filings and Teva has identified no other witnesses with comparable knowledge who spoke with
federal regulators or opposing counsel about Teva’s MMA letters.
Defendants argue that Mr. Holding’s narrow role in filing the mandatory MMA filings with
the FTC and his 2016 correspondence with the FTC does not warrant his deposition, and Plaintiffs
have other viable means of obtaining information about communications with regulators and
Mylan and Pfizer’s counsel about the Nuvigil and EpiPen Settlements. With respect to Teva’s
communications with regulators, Defendants argue Plaintiffs have another fact witness, Teva’s
former general counsel David Stark, who can be deposed regarding FTC-related filings and
communications with the FTC. Defendants point out Mr. Stark was included as a participant on
five 2016 email communications to or from Mr. Holding about the FTC notice letter. They note
Plaintiffs have indicated their intent to depose Mr. Stark, and Defendants have not objected to that
proposed deposition notice. In addition to Mr. Stark, Defendants argue Plaintiffs can obtain
information from deposing Teva’s Rule 30(b)(6) witness. Defendants state Teva has committed to
provide corporate testimony on “Teva’s decision regarding what to disclose (or not disclose) in
public press releases, regulatory filings, or communications with the FTC, DOJ, or Congress
relating to the EpiPen and Nuvigil patent litigation settlements.”18 Defendants argue this shows
Plaintiffs have other sources besides Mr. Holding and he is not the sole person who can testify
regarding Teva’s communications with regulators about the Nuvigil and EpiPen Settlements.
Defendants also argue Plaintiffs provide no basis to conclude that Mr. Holding has any relevant
18 Defs.’ Mem. in Support of Mot. to Quash (ECF No. 2) at 20.
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personal knowledge regarding settlement communications with counsel for Mylan or Pfizer. But
even if he did, Plaintiffs could seek this discovery from third parties Mylan or Pfizer without
deposing Mr. Holding.
Plaintiffs acknowledge they have scheduled the depositions of Teva’s in-house counsel and
a Rule 30(b)(6) witness, who will testify about Teva’s disclosure of the settlements and regulatory
statements, but argue the witnesses will not have first-hand knowledge about what Mr. Holding
told federal regulators and Mylan’s counsel about Teva’s regulatory filings. Plaintiffs state they
have identified conversations with both regulators and Mylan’s counsel that include no Teva
employees. Nor can these witnesses provide competent testimony about communications authored
and signed by Mr. Holding.
The Court considers the parties’ arguments in light of the applicable law. Plaintiffs must
first show whether other means exist to obtain the information sought other than deposing Mr.
Holding. This requires a showing that taking Mr. Holding’s deposition is the “only reasonably
practical means available for obtaining the information.”19 The party seeking the deposition of
opposing counsel should consider other discovery sources that “do not involve the same dangers
as an oral deposition of opposing counsel.”20 “If there are other available sources, the party seeking
the discovery should explore them first.” 21 “If there are other persons available who have the
information, they should be deposed first.” 22
19 Ed Tobergte Assocs., 259 F.R.D. at 555.
20 Mike v. Dymon, Inc., 169 F.R.D. 376, 379 (D. Kan. 1996) (citations omitted).
21 Id.
22 Id.
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Here, the Court finds Plaintiffs have not met their burden to show that deposing Mr.
Holding is the sole means to obtain information regarding communications with regulators about
the Nuvigil and EpiPen Settlements. The fact he is the lone signatory on the MMA letters to
regulators enclosing binding term sheets for the Nuvigil Settlement and EpiPen Settlement does
not establish he is the sole source of information regarding the letters he sent on behalf of Teva.
While Mr. Holding signed the letters transmitting the Binding Term Sheets to the FTC, his
signature does not appear as one of the signers of the executed Binding Term Sheets. The
individuals who actually signed the Binding Term Sheets would also be sources of statements and
information Mr. Holding relayed to the FTC on behalf of Teva in the letters at issue.23 In addition,
email communications indicate Teva’s former general counsel, Mr. Stark, was involved with Mr.
Holding regarding the FTC-related filings.24 The Court is not persuaded by Plaintiffs’ arguments,
which suggest Mr. Holding was having communications with the FTC of which Teva’s general
counsel was unaware. The Court finds this argument unconvincing and rejects it.
Plaintiffs repeatedly reference the Court’s rulings after its in camera review in the related
Case (No 22-cv-2501) that ordered Defendants to produce certain unredacted privileged
documents to support their opposition to the motion to quash Mr. Holding’s deposition. But the
document production ordered there is far different from Plaintiffs’ request to depose Mr. Holding
here.25 Although Mr. Holding was a participant in some of the 2016 emails ordered to be disclosed
23 See signature pages of Binding Term Sheets for Nuvigil Settlement (ECF No. 29-2) and EpiPen
Settlement (ECF No. 29-3) (sealed). For example, one of the signatures on the Binding Term Sheets is
Teva’s general counsel, Mr. Stark.
24 See April 29, 2012 Stark email. Pls. Resp. Ex. 4 (ECF No. 29-4) (sealed).
25 The three Shelton criteria were not applicable to the document productions pursuant to the
subpoenas served on opposing counsel at issue in those rulings. See ECF No. 312 at 8 and ECF No. 202 at
8 in related Case No. 22-cv-2501.
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after in camera review, those emails do not establish Mr. Holding was the sole source of
information on those communications.
Plaintiffs thus have other sources of information regarding these issues; they can depose
Teva’s general counsel and 30(b)(6) corporate representative regarding Teva’s communications
with the FTC and regulators about the Nuvigil and EpiPen Settlements, and Plaintiffs can obtain
information about Mr. Holding’s communications with Mylan and Pfizer’s counsel directly from
those third parties.
B. 	Communications 	with 	Teva 	that 	Implicate 	Teva’s 	Concealment 	of 	the
Relatedness of the Nuvigil and EpiPen Settlements
Plaintiffs also seek to depose Mr. Holding regarding his communications with Teva that
implicate Teva’s concealment of the relatedness of the Nuvigil and EpiPen Settlements. Plaintiffs
state Mr. Holding was “involved in several conversations on the day that the parties settled the
Nuvigil and EpiPen Settlements,” and attach an exhibit with five entries from Defendants’
privilege log that list emails with April 26, 2012 sent dates to or from Mr. Holding. Three entries
are described as emails between Teva’s in-house counsel and outside counsel (Mr. Holding)
“requesting legal advice regarding the EpiPen patent litigation settlement agreement with Pfizer
and Mylan.”26
Defendants deny that Mr. Holding had any involvement in negotiating the underlying
patent settlements. They argue the evidence shows that the EpiPen and Nuvigil settlements were
negotiated by business executives and in-house counsel at Teva, Mylan, and Pfizer, not trial
counsel for the parties or other outside counsel. Defendants dispute Plaintiffs’ characterization of
Mr. Holding’s involvement in the settlements and explain the appearance of Mr. Holding’s name
26 Pls.’ Resp. Ex. 1 (ECF No. 29-1).
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in the five April 26, 2012 entries on their privilege log is consistent with his acknowledged and
limited role in submitting the settlements to the FTC for Teva. Defendants further claim that the
Goodwin Proctor law firm did not serve as trial counsel for Teva in either patent litigation. It did
enlist a different Goodwin attorney, Christopher Denn, who is not a litigator, to assist with reducing
the agreements to writing. Plaintiffs’ counsel previously deposed Mr. Denn in the EpiPen MDL.
Defendants argue this shows Plaintiffs have other viable means of obtaining the same information
they purport to seek from Mr. Holding.
Here, the Court finds little evidence supports Plaintiffs’ conjecture that Mr. Holding was
involved in negotiating the EpiPen Settlement or the Nuvigil Settlement in January through April
2012. The focus of Plaintiffs argument is the appearance of Mr. Holding’s name in five privilege
log entries dated April 26, 2012, but those entries are consistent with Defendants’ explanation that
Mr. Holding’s role was limited to post-negotiation regulatory compliance work in submitting the
settlements to the FTC.27 The evidence also supports Defendants’ assertion that the EpiPen and
Nuvigil settlements were negotiated by business executives and in-house counsel at Teva, Mylan,
and Pfizer, and they would be primary sources for information about communications that
allegedly implicate Teva’s concealment of the relatedness of the Nuvigil and EpiPen Settlements.
Plaintiffs have thus failed to establish that no other means exist to obtain this information except
to depose Mr. Holding.
IV. 	Conclusion
Plaintiffs argue Mr. Holding’s deposition could be limited to narrow factual issues that
would not invade attorney-client privilege or inquire into “his litigation strategy.” The Court finds
27 See Pls. Resp. Ex. 4 (ECF No. 29-4) (email exchange providing Mr. Holding’s name in response
to a query for the Goodwin attorney Teva would use “for the FTC filing.”).
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such limitations are not practical or feasible. And the proposed limitation is not sufficient to
address the Court’s general concerns regarding the deposition of an attorney actively representing
Defendants in the related case. As this Court has long recognized, taking the deposition of
opposing counsel poses a number of unique problems:
To permit unbridled depositions of a party’s attorney opens the door to delay,
disruption of the case, harassment, and perhaps disqualification of the attorney.
Taking the deposition of opposing counsel not only disrupts the adversarial system
and lowers the standards of the profession, but it also adds to the already
burdensome time and costs of the litigation. It could lead to additional pretrial
delays to resolve work-product and attorney-client objections, and delays to resolve
collateral issues raised by the attorney's testimony. Finally, the practice of deposing
opposing counsel detracts from the quality of client representation. Counsel should
be free to devote his or her time and efforts to preparing the client's case without
fear of being interrogated by his or her opponent. Moreover, the chilling effect that
such practice will have on the truthful communications from the client to the
attorney is obvious. 28
In light of these potential problems associated with allowing depositions of opposing
counsel, the Court is not convinced Plaintiffs’ proposed limitations are realistic or practical.
Moreover, allowing the deposition of Mr. Holding, even if it could be limited to questions seeking
relevant and non-privileged information, would likely disrupt the effective operation of the
adversarial system and thus should only be pursued if he is the sole source of the information
sought (even if he had some involvement in relevant, non-privileged communications). Plaintiffs
have not convinced the Court that their proposed limitation of Mr. Holding’s deposition would
address the unique problems likely created by his role as counsel in the case.
28 Kelling v. Bridgestone/Firestone, Inc., 153 F.R.D. 170, 171 (D. Kan. 1994) (citations omitted).
This quoted language from Kelling is consistent with the caselaw cited by Defendants. See George P.
Johnson Co. Hong Kong Ltd. v. L.E.K. Consulting LLC, No. 1:20-CV-11269-NMG, 2022 WL 22902703,
at *5 (D. Mass. Nov. 21, 2022) (“[D]eposing a party’s lawyer is a perilous proposition, even when the
lawyer has participated in some ordinary (i.e. non-privileged) business communications. Such a deposition
is, at best, a last resort.”).
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In conclusion, Plaintiffs have failed to persuade the Court that the information they seek
from opposing counsel, Mr. Holding, cannot be obtained from other sources or to some extent that
the information Mr. Holding could provide would even be relevant to the Phase I issues in the
case. Because Plaintiffs have failed to establish the first Shelton factor that no other means exist to
obtain the specific information they seek except to depose Mr. Holding, the Court need not address
in depth the other two factors regarding whether the information is relevant, nonprivileged, and/or
crucial to Plaintiffs’ preparation of the case.29
IT IS THEREFORE ORDERED that the Motion to Quash Subpoena for the Deposition
of Non-Party Attorney Christopher T. Holding (ECF No. 1) is granted.
IT IS SO ORDERED.
Dated March 17, 2026, at Kansas City, Kansas.
29 See Harris v. Euronet Worldwide, Inc., No. 06-2537-JTM-DWB, 2007 WL 1557415, at *3 (D.
Kan. May 29, 2007) (granting protective order prohibiting deposition of plaintiff’s counsel upon finding
the defendants failed to establish the first Shelton factor without addressing other two factors). Even if the
Court considered the second Shelton factor, it finds Plaintiffs have not shown Mr. Holding would have
relevant information about Teva’s negotiations and communications prior to the Nuvigil and EpiPen
Settlements.
Teresa J. James
U. S. Magistrate Judge
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