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 for Protective Order Related to
Plaintiffs’ Rule 30(b)(6) Notice to Defendants (ECF No. 220). Defendants request a protective
order under Fed. R. Civ. P. 26(c) on Topics 1–15 of Plaintiffs’ Notice of Rule 30(b)(6) Deposition
of Defendants on the grounds these topics are outside the scope of Phase I discovery. As explained
below, Defendants’ motion is granted in part and denied in part.
I. 	Background1
Plaintiffs—representing a proposed class—allege Defendants and their co-conspirators
1 The background of this case is set forth in more detail in the Court’s July 31, 2025 Memorandum
and Order (ECF No. 226).
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entered an unlawful reverse payment settlement and conspired to safeguard their monopoly on
Nuvigil, a wakefulness drug with the generic name armodafinil. Plaintiffs allege Defendants
agreed to stay out of the EpiPen market, allowing Mylan and Pfizer to maintain their EpiPen
monopoly. In exchange, Plaintiffs contend, Mylan and Pfizer agreed to stay out of the Nuvigil
market, allowing Defendants to maintain their Nuvigil monopoly. Plaintiffs refer to this as the
“trade-for-delay” agreement or scheme.
Since June 2024, this case has been 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.2
Pertinent to this motion, Plaintiffs served their Notice of Rule 30(b)(6) Deposition of
Defendants (“Rule 30(b)(6) Notice”) on June 6, 2025 (ECF No. 221-1). It set out 28 topics grouped
into the following four categories:
(a) 	The Alleged Trade for Delay Agreement (Topics 1–11);
(b) 	Implementation of the Trade for Delay Scheme (Topics 12–15);
(c) 	Concealment or Non-Disclosure of the Trade for Delay Scheme
(Topics 16–19); and
(d) Disclosure and Public Awareness of the Alleged Scheme (Topics 20–
28).3
On July 1, 2025, the Court held a pre-motion discovery conference and set a July 18, 2025
deadline for Defendants to file any motion for protective order regarding Plaintiffs' Rule 30(b)(6)
2 See June 14, 2024 Order Regarding Phase I Disc. (ECF No. 88) and July 15, 2024 Phase I Sch.
Order (ECF No. 92) at 2.
3 Rule 30(b)(6) Notice (ECF No. 221-1) at 9–11.
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Notice.4 Defendants timely filed their motion for a protective order forbidding Plaintiffs from
inquiring about Topics 1–15 (the “Challenged Topics”).5 The motion is fully briefed and the Court
is ready to rule.
II. 	Legal Standards
Federal Rule of Civil Procedure 30(b)(6) allows a party to depose a corporate party by
noticing the deposition of the corporation’s representative as to certain designated topics. Pursuant
to that Rule, the notice must “describe with reasonable particularity the matters for examination.”6
The named organization must then designate one or more officers, directors, or managing agents,
or designate other persons who consent to testify on its behalf.7 The person(s) designated must
testify about information known or reasonably available to the corporate party.8
A party served with a Rule 30(b)(6) notice may move for a protective order under Fed. R.
Civ. P. 26(c), including one “forbidding inquiry into certain matters, or limiting the scope of
disclosure or discovery to certain matters.” 9 The party seeking a protective order bears the burden
of showing good cause for the protection sought.10 “Rule 26(c) confers broad discretion on the
4 July 1, 2025 Disc. Conf. Order (ECF No. 212).
5 Defendants are not challenging Topics 16–28. Defts.’ Mem. in Supp. (ECF No. 221) at 2, 4.
6 Fed. R. Civ. P. 30(b)(6).
7 Id.
8 Id.
9 Fed. R. Civ. P. 26(c)(1)(D). See also Orchestrate HR, Inc. v. Blue Cross & Blue Shield of Kan.,
Inc., No. 19-4007-DDC, 2023 WL 2269780, at *2 (D. Kan. Feb. 28, 2023) (“A party noticed under Fed. R.
Civ. P. 30(b)(6) cannot avoid its obligation to produce a witness on a topic designated in the notice of
deposition by objecting to it. Instead, when the responding party claims the notice improperly designates
topics for testimony, requesting a protective order represents a proper method of response.”).
10 Layne Christensen Co. v. Purolite Co., 271 F.R.D. 240, 244 (D. Kan. 2010).
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trial court to decide when a protective order is appropriate and what degree of protection is
required.”11 The court’s broad discretion can be utilized to “specifically define and/or narrow the
disclosure or discovery, including the terms, timing, and method of discovery.”12
Topics or areas of inquiry in a Rule 30(b)(6) notice are constrained by the general scope
and limits of discovery set out in Fed. R. Civ. P. 26(b).13 Under that Rule, the scope of discovery
is generally limited to “any nonprivileged matter that is relevant to any party’s claim or defense
and proportional to the needs of the case.”14
III. 	Defendants’ Objections Topics 1–15 are Outside the Scope of Phase I Discovery
Defendants have the burden to show good cause for the requested protective order
forbidding inquiry into Topics 1–15. Defendants assert good cause exists for a protective order on
Topics 1–15 because they are expansive and improper discovery on the “merits” of Plaintiffs’
antitrust claims and therefore outside the scope of Phase I discovery. Defendants argue the
Challenged Topics improperly seek to probe the existence and scope of the alleged trade-for-delay
agreement, which is “a plain merits issue that is outside of Phase I.” Plaintiffs disagree and argue
Topics 1–15 are essential for Phase I discovery because they go to the heart of Plaintiffs’ tolling
and fraudulent concealment arguments by seeking Rule 30(b)(6) witness testimony on whether
Defendants fraudulently concealed the trade-for-delay agreement.
As the parties note, Phase I discovery has been specifically limited by the parties’
11 Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
12 Orchestrate HR, 2023 WL 2269780, at *1.
13 Arenas v. Unified Sch. Dist. No. 223, No. 15-CV-9359-JWL-TJJ, 2016 WL 6071802, at *4 (D.
Kan. Oct. 17, 2016).
14 Fed. R. Civ. P. 26(b)(1).
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agreement and this Court’s Phase I Scheduling Order to: (1) the timeliness of Plaintiffs’ claims
under the applicable statutes of limitations; (2) any related statute-of-limitations issues, facts, and
circumstances, including Defendants’ statute of limitations defense or defenses (and the elements
thereof); and (3) the issues of tolling, equitable tolling, and fraudulent concealment (and the
elements thereof).15 Defendants’ present motion requires the Court determine whether the 15
Challenged Topics are within the scope of Phase I discovery.
For more than a year, Phase I discovery has been limited to the pivotal issue of the
timeliness of Plaintiffs’ claims. One of those timeliness issues is whether the statute of limitations
was tolled by Defendants’ fraudulent concealment thus preventing Plaintiffs from asserting their
claims in a timely fashion. For Plaintiffs to avail themselves of the tolling powers of the doctrine
of fraudulent concealment they must show the following elements: (1) the use of fraudulent means
by Defendants; (2) successful concealment from Plaintiffs; and (3) that Plaintiffs did not know or
by the exercise of due diligence could not have known that they might have had a cause of action.16
Discovery on each of these elements would fall within the scope of Phase I discovery.
In the context presented here, the parties’ dispute essentially boils down to what discovery
should be allowed on the first element, i.e., Defendants’ alleged use of fraudulent means to conceal
its activities. Defendants argue discovery should only include what actions or inactions they
allegedly took to conceal the terms of the alleged trade-for-delay agreement. In contrast, Plaintiffs
urge a broader scope that includes discovery about the underlying trade-for-delay agreement itself
15 Phase I Sch. Order (ECF No. 92) at 2.
16 Edgar v. Teva Pharm. Indus., Ltd., No. 22-2501-DDC-TJJ, 2024 WL 1282436, at *14 (D. Kan.
Mar. 26, 2024), motion to certify appeal denied sub nom. Burge v. Teva Pharms. Indus., Ltd., 2024 WL
4692050 (D. Kan. Nov. 6, 2024) (citing In re Urethane Antirust Litig., 913 F. Supp. 2d 1145, 1158 (D. Kan.
2012)).
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and not just limited to subsequent concealment activities. Both argue different interpretations of
In re Urethane Antitrust Litigation17 support their respective positions.
However, the Court determines that it need not consider or address In re Urethane Antitrust
Litigation18 to decide this motion for protective order. Instead, in its discretion, taking into account
the facts and issues in this case, the Court must make a judgment call regarding whether each of
the Challenged Topics is relevant and proportional to the needs of the issues in Phase I of this case.
It is, of course, well-recognized that in bifurcated cases, including this one, the line between Phase
I and Phase II discovery is not a bright line. Instead, Phase I discovery will sometimes bleed into
or overlap Phase II discovery. That should not preclude proper Phase I discovery, but it also should
not open the floodgates into Phase II discovery.
IV. 	Challenged Topics Within the Scope of Phase I Discovery
Taking all of the above into account, in its discretion, the Court finds the following
Challenged Topics are proper for Phase I discovery in this case:
Topic 1 (Origin of the alleged trade-for-delay agreement);
Topics 2, 9 and 11 (Identification of individuals involved in trade-for delay
discussions and decisions and negotiation of patent settlements); and
Topics 3, 5, and 6 (Communications and details related to the discussion and
coordination of the trade-for-delay agreement).
The origin or conception of the trade-for-delay agreement, as sought by Topic 1, is
appropriate as Phase I discovery in that such inquiry may reveal acts of secrecy or concealment
involved with the trade-for-delay agreement itself from its inception. How the trade-for-delay
agreement was originally negotiated may have played a role in its concealment and is therefore
17 913 F. Supp. 2d 1145 (D. Kan. 2012).
18 Id.
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relevant to the first element with respect to the issue of tolling of the statute of limitations based
upon the fraudulent concealment doctrine.
Topics 2, 9, and 11 are also within the scope of Phase I discovery. Although they inquire
into the identity and roles of individuals involved in the early trade-for-delay discussions and
negotiation of the Nuvigil and Epi-Pen-related patent settlements, inquiry into these topics may
reveal the identities of individuals participating in acts of secrecy or concealment as part of the
trade-for-delay agreement and settlements themselves. This may reveal overlap of key players
involved in the alleged concealment activities. In addition, the Topics may reveal whether the
trade-for-delay 	agreement 	and 	settlements 	were 	negotiated 	through 	a 	limited 	number 	of
employees, who conducted the negotiations outside the normal course of business, which would
be relevant to whether Defendants’ alleged concealment of the trade-for-delay agreement was
fraudulent.
Topics 3, 5, and 6 are also within the scope of Phase I discovery. They inquire regarding
the “timing, location, and means of communication” by which the trade-for-delay agreement was
discussed and/or developed internally and communications relating to the potential and/or actual
coordination between the swapped settlements. The requested information is pertinent to when,
where, and how the trade-for-delay agreement was discussed, all of which could suggest intent to
fraudulently conceal it. Defendants’ objections to Topics 1–3, 5–6, 9 and 11 are overruled, and the
request for protective order as to them is denied.
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V. 	Challenged Topics Outside the Scope of Phase I Discovery
Conversely, the Court finds the following Challenged Topics relate exclusively to Phase II
discovery in this case:
Topics 4, 7, 8, and 10 (Economic analyses and modeling); and
Topics 12–15 (Implementation of the trade-for-delay agreement).
The analyses, projections, and financial information sought by Topics 4, 7, 8 and 10
concern the estimated value of the trade-for-delay agreement and likelihood of success on the
underlying patent litigation. This information is not facially relevant to any alleged concealment
of the trade-for-delay agreement or any other timeliness issue. Instead, these topics all go to
Plaintiffs’ 	ultimate 	antitrust 	argument 	that 	the 	EpiPen 	and 	Nuvigil 	settlements 	were 	an
anticompetitive “large and unjustified” reverse payment. None are germane to Defendants’ alleged
conduct to conceal the terms of the alleged anticompetitive settlement.
Topics 12–15 are also not within the scope of Phase I discovery. They broadly inquire
about the implementation of the trade-for-delay agreement without any meaningful limitation
tailoring them to discovery of acts of secrecy or concealment made during the implementation of
the trade-for-delay agreement itself. Defendants’ objections to Topics 4, 7, 8, 10, and 12–15 are
sustained, and the request for protective order as to them is granted.
VI. 	Defendants’ Unduly Burdensome Objections
Defendants also claim that preparing Rule 30(b)(6) witnesses to testify on these topics
would be unduly burdensome. They argue allowing the Challenged Topics to go forward would
not only upend the bifurcated discovery in this case, but would also impose “substantial costs and
inefficiencies” on Defendants, months after the completion of document productions. Plaintiffs
argue that Defendants exaggerate and fail to support the alleged burden imposed upon them by
preparing witnesses on these fifteen topics.
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The Court finds Defendants have not supported their objection that preparing witnesses to
testify on the Challenged Topics, now narrowed to Topics 1–3, 5–6, 9, and 11, would be unduly
burdensome. As Defendants acknowledge, the documents at issue relative to these allowed Rule
30(b)(6) topics have already been produced. Defendants have had time before now to contemplate
and 	choose 	the 	appropriate 	corporate 	representatives 	for 	deposition. 	Defendants’ 	unduly
burdensome objections are therefore overruled.
VII. 	Temporal Scope Limitation on Topics
Defendants also request, if a protective order is not entered as to each Challenged Topic,
the Court order that the start date for the Rule 30(b)(6) deposition testimony is January 1, 2012.
Plaintiffs state in their response they have agreed to limit the temporal scope of their Notice so that
the Rule 30(b)(6) witnesses need not be prepared to testify about events before January 1, 2012,
but then state the Court “should not limit future discovery if new evidence shows that the pay-for-
delay scheme started sooner.”19 In their reply, Defendants request that the Court order the start
date for the Rule 30(b)(6) testimony is January 1, 2012 “without reservation or exception.”20
In short, the parties indicate they have agreed Defendants’ Rule 30(b)(6) witnesses need
not be prepared to testify regarding events before January 1, 2012, but they disagree over Plaintiffs’
requested reservation or exception to that temporal limitation. The Court is not persuaded that an
earlier start date as suggested by Plaintiffs is warranted at this time. Therefore, the Court adopts
and will enforce the January 1, 2012 temporal scope limitation on the depositions of Defendants’
Rule 30(b)(6) witnesses. The Court finds Plaintiffs’ requested reservation or exception premature
and denies that request. The request is based on speculation of perceived future discovery disputes
19 Resp. (ECF No. 228) at 10.
20 Reply (ECF No. 231) at 4.
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not before the Court at this time.
IT IS THEREFORE ORDERED that Defendants’ Motion for Protective Order Related
to Plaintiffs’ Rule 30(b)(6) Notice to Defendants (ECF No. 220) is granted in part and denied
in part. Defendants’ motion is granted as to Topics 4, 7, 8, 10, and 12–15. The motion is denied
as to Topics 1–3, 5–6, 9, and 11.
IT IS SO ORDERED.
Dated October 31, 2025, at Kansas City, Kansas.
Teresa J. James
U. S. Magistrate Judge
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