The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
MSP Recovery Claims, Series LLC, et al., )
)
Plaintiffs, )
) Case No. 20 CV 50056
v. )
) Magistrate Judge Lisa A. Jensen
Mallinckrodt ARD, Inc., et al., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendants’ motion to compel Plaintiffs to produce
documents in the possession of numerous third parties who have assigned their rights to litigate
this case to Plaintiffs. The matter has been fully briefed, and the Court heard oral argument on the
motion on March 6, 2020. For the reasons stated below, the Court grants Defendants’ motion
[349].
STATEMENT
The instant action arises out of Plaintiffs MSP Recovery Claims, Series LLC, MAO-MSO
Recovery, II, LLC, Series PMPI, and MSPA Claims 1, LLC’s allegations that Defendants
Mallinckrodt PLC, Mallinckrodt ARD, Inc., Express Scripts Holding Company, Express Scripts,
Inc., Curascript, Inc., and United Biosource Corp. have violated various federal and state antitrust
statutes and consumer-protection laws by artificially inflating the price of the drug Acthar.1 As a
result, Plaintiffs allege that certain third-party payors that provide Medicare benefits to their
beneficiaries were forced to pay inflated prices for Acthar. Various of these third-party payors
have assigned their rights to recover for this alleged over payment to Plaintiffs.
On January 6, 2020, Defendants served their first set of requests for production of
documents on Plaintiffs. In those requests, Defendants defined “control” over the requested
documents to include “[d]ocuments in the possession of an Assignor.” Defendants’ Motion, Ex. B
at 3, Dkt. 290-2. On February 5, 2020, Plaintiffs served their responses. Plaintiffs objected to the
1 On March 23, 2020, Judge John Z. Lee dismissed Plaintiffs’ amended complaint without prejudice and
allowed Plaintiffs leave to file a second amended complaint. Dkt. 320.
requests to the extent they called for information in the possession of its assignors, alleging that
they do not have possession, custody or control over such documents.2
Federal Rule of Civil Procedure 34 requires parties to produce documents “in the
responding party’s possession, custody, or control.” Fed R. Civ. P. 34(a)(1). The concept of control
is construed broadly. See, e.g., Munive v. Town of Cicero, No. 12 C 5481, 2016 U.S. Dist. LEXIS
182159 (N.D. Ill. Oct. 14, 2016); SRAM, LLC v. Hayes Bicycle Group, Inc., No. 12 C 3629, 2013
U.S. Dist. LEXIS 173798 (N.D. Ill. Dec. 10, 2013). “[I]t is well-settled that a party need not have
actual possession of the documents to be deemed in control of them; rather, the test is whether the
party has the legal right to obtain them.” Dexia Credit Local v. Rogan, 231 F.R.D. 538, 542 (N.D.
Ill. 2004) (internal quotation marks and citation omitted) (emphasis in original). The “party seeking
production of documents bears the burden of establishing the opposing party’s control over those
documents.” Camden Iron & Metal Inc. v. Marubeni America Corp., 138 F.R.D. 438, 441 (D.N.J.
1991).
Defendants advance two arguments in support of their position that Plaintiffs have control
of the requested documents in the possession of the assignors. First, they argue that each of the 25
assignors entered into contractual agreements (“Assignment Agreements”) with Plaintiffs wherein
they either: (1) provided Plaintiffs with a right to obtain documents from the assignors that are
necessary to pursue the assigned claims; or (2) transferred ownership of such documents to
Plaintiffs. Defendants specifically identify the language from each Assignment Agreement that
supports their assertion. See Defendants’ Motion at 2-8, Dkt. 290.3 Second, Defendants argue that
even if the language of the Assignment Agreements do not provide Plaintiffs with “control” over
the requested documents, concepts of equity and fairness should be invoked to require the
assignees to turn over the requested documents to Plaintiffs.4 Because this Court agrees that the
2 Defendants originally filed their motion relating to this issue on March 2, 2020 and argued the motion
before this Court on March 6, 2020. Dkts. 290, 308. Defendants later withdrew the motion, citing the lack
of an operative complaint and burdens relating to the pandemic. Dkts. 326, 331. Defendants recently
renewed their request by filing the instant motion on June 17, 2020. Dkt. 349.
3 Following oral argument, the Court was provided with full copies of each of the 25 Assignment
Agreements. Dkt. 358.
4 Defendants cite to numerous courts that have ruled that a party asserting assigned claims has an obligation
to obtain documents from assignors in discovery, regardless of the language in the assignment agreement.
See Defendants’ Motion at 11-12, Dkt. 290. This list includes one Northern District of Illinois case which
held that “it would be both logically inconsistent and unfair to allow the right to sue to be transferred to
assignees of a debt free of the obligations that go with litigating a claim, as that would shift [] onto
defendants the cost of third-party discovery, where the third-parties are the very institutions asserting that
they were defrauded.” National Council on Compensation Insurance, Inc. v. American International
Group, Inc., No. 07 C 2898, 2007 U.S. Dist. LEXIS 91518, at *15 (N.D. Ill. Dec. 11, 2007) (internal
quotation marks and citation omitted). The Seventh Circuit does not appear to have addressed this issue.
As set forth above, because the Court finds that the Assignment Agreements contractually obligate the
assignors to turn over the requested documents to Plaintiffs it need not decide whether equitable
considerations also warrant granting Defendants’ motion.
Assignment Agreements give Plaintiffs the legal right to obtain the requested documents, it need
not decide the equitable argument.
“Courts have routinely held that a party controls records within the meaning of the rules of
discovery if it has a contractual right to access those records.” Pine Top Receivables of Ill., LLC v.
Banco de Seguros Del Estaado, No. 12 C 6357, 2013 U.S. Dist. LEXIS 100297, at *7 (N.D. Ill.
July 18, 2013) (collecting cases); see also Williams v. Angie’s List, Inc., No. 1:16-cv-00878-WTL-
MJD, 2017 U.S. Dist. LEXIS 54270, at *7 (S.D. Ind. Apr. 10, 2017) (“[T]he Seventh Circuit has
embraced the prevailing definition of ‘control’ as ‘a legal right to obtain,’ a standard which is
“certainly broad enough to encompass a contractual right to obtain documents.”) (quoting Thermal
Design Inc. v. Am. Soc’y of Heating, Refrigerating & Air-Conditioning Engineers, Inc., 755 F.3d
832, 838-39 (7th Cir. 2014)) (collecting cases). Based on a review of each of the 25 Assignment
Agreements at issue here, the Court agrees that Plaintiffs have a contractual right to access records
necessary to pursue the assigned claims or, in some instances, legal ownership of such documents.
Plaintiffs agree that six of the Assignment Agreements confer upon Plaintiffs the legal right
to obtain documents from Plaintiffs’ assignors.5 With regard to the remaining Assignment
Agreements, Plaintiffs argue that Defendants’ position that those agreements confer upon
Plaintiffs the legal right over the documents is “tenuous at best.” Plaintiffs’ Response at 8, Dkt.
304. Plaintiffs point to only one Assignment Agreement in support of their position. They allege
that the Assignment Agreement between Plaintiff and Hygea Health Holdings merely references
the obligation by the assignor to supply documents that substantiate the assignor’s representations,
warranties and covenants as opposed to enshrining an explicit legal right by Plaintiffs to obtain
categories of documents sought by Defendants. The Court disagrees with Plaintiffs’ restrictive
reading of the Assignment Agreement. Article 1 of the agreement entitled “Irrevocable and
Absolute Assignment of Claims” states:
Client hereby irrevocably assigns, transfers, conveys, sets over and delivers
to MSP Recovery, or its assigns, any and all of Client’s right, title, ownership and
interests in and to all rights and entitlements, and all information and data used to
5 Those agreements relate to assignments from Health First Health Plans, Fallon Community Health Plan,
Family Physicians Group, Medical Consultants Mgmt., SE Primary Care and SummaCare. Defendant’s
Motion at 8-9, Dkt. 290. The operative language in those assignments is:
Client hereby irrevocably assigns, transfers, conveys, sets over and delivers to
MSP Recovery, and any of its successors and assigns, any and all of Client’s right, title,
ownership and interest in and to all documents relating to the Assigned Claims (the
“Assigned Documents”). The Documents include, but are not limited to, those documents
listed on Schedule A to the attached.
See, e.g., Fallon Community Health Plan Assignment Agreement at 5, Dkt. 358-21; see also Dkts. 358-24,
358-25, 358-26, 358-27, 358-28.
pursue and/or recover monies for Client that Client has, may have had, or has
asserted against any party including, but not limited to, primary payors and/or third
parties that may be liable to Client arising from or relating to the Assigned Claims.
Hygea Health Holdings Assignment Agreement at 3, Dkt. 358-7.
This language is not limited to information concerning representations and warranties made
in the Assignment Agreement but applies to all information and data used to pursue and/or recover
monies for the client. The second provision cited by Plaintiffs does appear in Section 1.2 entitled
“Client’s Representations, Warranties and Covenants” and states:
Client agrees to execute and deliver, or to cause to be executed and
delivered, all such instruments and documents, and to take all such action as MSP
Recovery may reasonably request in order to effectuate the intent and purposes of,
and to carry out the terms of, this Assignment of Claims.
Hygea Health Holdings Assignment Agreement at 4, Dkt. 358-7.
This language is also quite broad and is not limited to information relating to the client’s
representations and warranties but extends to all documents Plaintiffs may request in order to carry
out the terms of the assignment. Thus, pursuant to this Assignment Agreement Plaintiffs have the
legal right to obtain those documents necessary to litigate its claims against Defendants and those
documents necessarily include documents sought in discovery.
As for the remaining Assignment Agreements, Plaintiffs make no response to the specific
language Defendants contend gives Plaintiffs control over the requested documents. Specifically,
they do not argue how or why the cited language does not give control over those documents to
Plaintiffs. Moreover, the Court has reviewed the language contained in the six Assignment
Agreements that Plaintiffs concede confer control over the requested documents and compared
that language to the remaining Assignment Agreements. The remaining Assignment Agreements
have similar or more expansive language regarding control or title over the documents necessary
to pursue the assigned claims, and Plaintiffs offer no argument or explanation to the Court as to
why they believe those six Assignment Agreements confer control while the remaining agreements
do not.6 As such, Defendants have carried their burden of proof on this issue.
6 For example, many of the Assignment Agreements contain one or both of the following clauses, and even
when the language differs slightly, the difference is not material:
Client hereby irrevocably assigns transfers, conveys, sets over and delivers to MSP
Recovery, or its assigns, in perpetuity, any and all of Client’s right, title, ownership and
interest in and to all rights and entitlements, and all information and data used to pursue
and/or recover monies for Client that Client has, may have had, or has asserted against any
Finally, Plaintiffs urge this Court to follow the ruling of Magistrate Judge Alexander F.
MacKinnon in MAO-MSO Recovery IH, LLC v. Mercury Gen., Corp., No. 17-cv-02525-AB
(AFMx), 2019 U.S. Dist. LEXIS 113095 (C.D. Cal. May 10, 2019). Plaintiffs contend that Judge
MacKinnon refused to make a finding that the requested documents were in the possession,
custody or control of some 80 assignors and instead ordered the parties to further meet and confer
regarding ways to obtain documents from the assignors. However in MAO-MSO Recovery, the
parties did not raise the question of whether the terms of any assignment agreement granted the
plaintiffs the legal right to obtain documents from the assignor, the court was not provided with
the assignment agreements and the defendant did not allege that the plaintiffs had legal control
over the requested documents in the possession of the assignors. /d. at *8. That is not the case here.
The Court has been provided with the relevant agreements, Defendants have argued that those
agreements provide legal control over the requested documents and Plaintiffs have not set forth
specific arguments as to why the cited language is not sufficient to give them legal control of the
documents.
Because the Assignment Agreements confer upon Plaintiffs the contractual right to obtain
documents from assignors necessary to pursue the assigned claims, Plaintiffs have “control” of
such documents and must produce documents responsive to Defendants First Request for
Production of Documents that are in the possession of the assignors.’
Date: July 2, 2020 By: ( ‘s
isa A. Jensen
United States Magistrate Judge
party including, but not limited to, primary payors and/or third parties that may be liable to
Client arising from or relating to the Assigned Claims.
OK OK
Client agrees to execute and deliver, or to cause to be executed and delivered, all
such instruments and documents, and to take all such actions as MSP Recovery may
reasonably request in order to effectuate the intent and purposes of, and to carry out the
terms of, this Assignment of Claims.
See, e.g., Alianza Profesional de Cuidada Medico Assignment Agreement at 3-4, 5, Dkt. 358-20; see also
Dkt. 358.
’ Both sides agree that they seek a ruling only on the issue of whether Plaintiffs have “possession, custody,
or control” of the requested documents in the possession of the assignors. They have not asked the Court
to rule on any other objection raised by Plaintiffs, and thus, the Court will not address those objections.