The opinion
UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS
In re LANTUS DIRECT PURCHASER CIVIL ACTION
ANTITRUST LITIGATION NO. 16-12652-LTS
SCHEDULING ORDER AND ORDER ON MOTIONS TO
COMPEL AND FOR LEAVE TO TAKE NONPARTY DEPOSITIONS
This matter is before the court on (1) the plaintiffs’ “Emergency Motion to Compel
Sanofi to Produce Updated Transactional Data” (Docket No. 353), (2) the “Defendants’ Motion
for Expedited Leave to Take Three Nonparty Depositions After March 4, 2022” (Docket No.
359), and (3) the parties’ “Joint Submission Regarding Case Schedule” (Docket No. 369). After
consideration of the parties’ written submissions and their oral arguments, it is hereby
ORDERED as follows:
Motions to Compel and for Leave to Take Depositions
1. For the reasons stated in open court, the plaintiffs’ motion to compel the
production of updated transactional data is DENIED. As agreed by the parties and endorsed by
the court in its July 14, 2021 Scheduling Order, Sanofi was obligated to produce transaction
data reflecting sales of Lantus and Lantus SoloSTAR between February 1, 2014 and December
31, 2020, but had no obligation to produce data for 2021. Under such circumstances, Sanofi
had no duty to supplement its production to include post-2020 information. See, e.g., Hnot v.
Willis Group Holdings Ltd., No. 01 Civ. 6558 (GEL), 2006 WL 2381869, at *5 (S.D.N.Y. Aug. 17,
2006) (ruling that defendants had no obligation to supplement responses to discovery requests
by producing post-2001 information where only request to which defendants had a duty to
respond sought information through December 31, 2001). Nevertheless, the plaintiffs may
seek additional information as follows:
a. The plaintiffs may propound an interrogatory upon Sanofi requesting the
identity of any direct purchasers who purchased Lantus or Lantus SoloSTAR
for the first time in 2021.
b. Sanofi shall respond to the plaintiffs’ interrogatory by March 29, 2022.
2. Sanofi’s motion for leave to take nonparty depositions is ALLOWED. As agreed,
Sanofi’s request to take Lilly’s deposition has been withdrawn. Sanofi shall complete the
depositions of Merck and Mylan by April 15, 2022.
Scheduling Order
3. The parties shall comply with the following deadlines set forth in their
“[Proposed] Amended Scheduling Order” (Docket No. 369-1):
a. The plaintiffs shall file any motion for class certification and serve supporting
class certification expert reports by the later of (i) four weeks after the court
rules on the parties’ pending summary judgment motions (regarding SEE and
ownership or control exception); or (ii) four weeks after the completion of
the Merck and Mylan depositions.
b. The new deadlines for all class certification events described in the
September 24, 2021 Scheduling Order (Docket No. 282), which follow the
deadline for plaintiffs to move for class certification and serve supporting
class certification expert reports, shall be amended to follow the new
deadline described in paragraph 3(a) herein, while maintaining the same
intervals between those events as in the September 24, 2021 Scheduling
Order.
c. The deadline for the party with the burden of proof to serve merits expert
reports shall be the later of (i) one week after the new deadline for plaintiffs
to move for class certification and serve supporting expert reports; or (ii) four
weeks after the Schwarzhaupt, Geppert and Sieber depositions.
d. The new deadlines for all other events set forth in the September 24, 2021
Scheduling Order shall be amended to follow the new deadline for opening
merits expert reports described in paragraph 3(c) herein, while maintaining
the same intervals between those events as in the September 24, 2021
Scheduling Order.
/ s / Judith Gail Dein
Judith Gail Dein
Dated: March 16, 2022 United States Magistrate Judge