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In re Actavis Holdco U.S., Inc.

United States Court of Appeals for the Third Circuit

December 6, 2019, Decided

No. 19-3549



The foregoing petition for a writ of mandamus is denied because, among other reasons, (1) the ordered disclosure does not "amount[] to a judicial usurpation of power," Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380, 124 S. Ct. 2576, 159 L. Ed. 2d 459 (2004) (internal quotation marks omitted); (2) Petitioners have not established a "clear and indisputable" right to relief, id. at 381 (quoting Kerr v. U.S. Dist. Ct. for N. Dist. Of Cal., 426 U.S. 394, 403, 96 S. Ct. 2119, 48 L. Ed. 2d 725 (1976)); see also In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378-79 (3d Cir. 2005); (3) there is no showing that the order was the result of a "clear abuse of discretion," Cheney, 542 U.S. at 380, given that (i) the District Court has wide latitude in controlling discovery, (ii)?the Federal Rules of Civil Procedure permit a district court to compel the production of documents within broad parameters, see, e.g., Fed. R. Civ. P. 16(b), 26(b)(1), (iii) the discovery is being produced from custodians identified as possessing potentially relevant information, and search terms aimed at identifying relevant information [*8]  that will be applied are likely to narrow the information produced, (iv) district courts have, in some circumstances, ordered the production of documents without a manual relevance review, see, e.g., Consumer Fin. Prot. Bureau v. Navient Corp., No. 3:17-CV-101, 2018 U.S. Dist. LEXIS 215146, 2018 WL 6729794, at *2 (M.D. Pa. Dec. 21, 2018); UPMC v. Highmark Inc., No.?2:12-CV-00692-JFC, 2013 U.S. Dist. LEXIS 196362, 2013 WL 12141530, at *2 (W.D. Pa. Jan. 22, 2013); Williams v. Taser Int'l, Inc., No. CIVA 106CV-0051-RWS, 2007 U.S. Dist. LEXIS 40280, 2007 WL 1630875, at *6 (N.D. Ga. June 4, 2007), and these orders are neither tantamount to "search warrants" nor clear outliers, as the dissent suggests, (v) a similar approach is contemplated in Federal Rule of Evidence?502(d), by which a court may order production without a privilege review, (vi)?the District Court provided reasons for its approach in its orders, (vii) the District Court provided avenues: (a) to allow the Petitioners to review for privilege before production and (b) to protect the produced information by way of an "outside counsel eyes only designation" for a period of 120 days, during which Petitioners may claw back trade secrets, unrelated business information, and unrelated personal or embarrassing information; (viii) even if the District Court's order constituted an abuse of discretion (which we do not decide), such an error would not support mandamus relief, [*9]  see Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir 1995) (noting that "[m]andamus is not available for [an] abuse of discretion" without a showing that "the district court committed a clear error of law"); Cipollone v. Liggett Grp., Inc., 822 F.2d 335, 339 (3d Cir. 1987) (similar); and (4)?mandamus is not otherwise necessary "to prevent grave injustice," Bogosian v. Gulf Oil Corp., 738 F.2d 587, 591 (3d Cir. 1984), as there is no showing that the ordered disclosure, when paired with the protections and limitations that the District Court imposed, will cause great injury.

Because we have denied the mandamus petition, we deny as moot the motions to stay discovery pending resolution of the mandamus petition and to expedite consideration of the petition. We grant the motion to seal and Petitioners' motion for leave to file a reply to the petition for a writ of mandamus.1

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2019 U.S. App. LEXIS 39254 *; 2020-1 Trade Cas. (CCH) P81,121

In re: ACTAVIS HOLDCO U.S., Inc., et al., Petitioners

Prior History:  [*1] (Related to E.D. Pa. No. 2-16-md-02724).

In re Generic Drug Pricing Antitrust Litig., 227 F. Supp. 3d 1402, 2016 U.S. Dist. LEXIS 103005 (J.P.M.L., Aug. 5, 2016)


district court, mandamus, abuse of discretion, discovery, production of documents, relevant information, ordered disclosure, mandamus petition, writ petition, unrelated, reasons, orders

Civil Procedure, Appeals, Standards of Review, Clearly Erroneous Review, Writs, Common Law Writs, Mandamus