In re Biovail Corp. Securities Litigation
In re Biovail Corp. Securities Litigation
Opinion of the Court
OPINION & ORDER
Defendant Biovail, in this proposed stockholders’ class action, moves to compel compli-anee with subpoenas Biovail issued to various non-parties, including Steven A. Cohen, Arthur Cohen, Timothy McCarthy, S.A.C. Capital Advisors LLC, S.A.C. Capital Associates, S.A.C. Capital Management LLC, S.A.C. Healthco and Sigma Funds, David Maris, Gerson Lehrman Brokerage Services, LLC, Gerson Lehrman Group, LLC, and Dr. Emanuel Goldberg. The motion to compel is denied for the reasons set forth below.
It is plaintiffs’ allegation in its New York federal action that false and misleading statements by Biovail during the class period artificially caused a false increase in Biovail’s share price, which plummeted once investors learned the truth.
Consequently, I conclude that for purposes of Biovail defending this action, the virtually limitless financial and other information Biovail seeks is unnecessary and irrelevant, at least in this case, and the burden these demands place on the subpoenaed non-parties and diversion of their staff to provide it far outweighs any probative value of the information. To establish its “source-of-fault” defense above, Biovail does not need to prove the existence of any conspiracy. Biovail simply needs to establish that numerous statements by said outsiders caused its share price to “tank,” and 1) it is already in a position to prove all of that, and 2) if those statements were false, it can prove their falsity from its own records. Thus Biovail does not need discovery from these non-parties to prove whether or not the reports of David Maris, for example, are false. Either they are or they aren’t. Given that the discovery as sought could cost millions of dollars, see Riemer Declaration at 3-4, the burden of production far outweighs any probative value.
Furthermore, I get no suggestion of evi-dentiary support for Biovail’s proposed defenses, other than that it says they are well-founded. For example, puzzlingly troublesome for any court now asked to give weight to Biovail’s plethora of attacks on alleged co-conspirator defendant David Maris is that Biovail, after smothering him in their New Jersey RICO Action complaint and submissions during the recent and sharply contested hearings before me,
While the Court is aware that the discovery Biovail now seeks might be of use in the companion actions proceeding in New Jersey, where discovery has been stayed, the Court is mindful that this motion must be assessed against Biovail’s previous obvious violation of an agreed-upon protective order whereby Biovail wrongfully used documents obtained during discovery in this case and limited to use in this case to initiate and pursue the parallel litigation in New Jersey. See In re Biovail Corp. Securities Litigation, 247 F.R.D. 69, 2007 WL 259933 (S.D.N.Y. 2007). Further, Biovail could have made the non-parties from whom it now seeks discovery parties to this action. See Fed.R.Civ.P. 14(a). The record reflects that Biovail considered this option, see June 29, 2007 Tr. at 1406:22-1407:5 (Bowe testimony), but instead chose to pursue separate action in New Jersey, emphasizing in its New Jersey RICO Action complaint that it does “not believe that ... the parties in the other pending judicial proceedings [namely, this action] should be joined in [New Jersey].” New Jersey RICO Action, Compl. at 90. Biovail cannot have it both ways. It chose to proceed by separate litigation. It cannot now have combined discovery. Where the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery is properly denied. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 n. 17, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978).
Accordingly, I find that the requested discovery is unnecessary and irrelevant, and production would be a wholly improper high burden on the non-parties. Biovail’s motion to compel compliance with its subpoenas is therefore denied.
So ordered.
. For further background, see In re Biovail Corp. Securities Litigation, 247 F.R.D. 69, 2007 WL 259933 (S.D.N.Y. 2007).
. See infra n. 5.
. In correspondence, counsel for Biovail put it this way: "The dissemination of false information about Biovail [by outside third parties] occurred at precisely the same time that Plaintiffs in this action allegedly suffered losses {i.e., February 7, 1003 and March 2, 2004 — the putative class period).” E-Mail from Rebecca Fine to Martin Klotz, April 21, 2006 (emphasis added).
. See id. ("[The conspiracy’s] activities are directly relevant to Biovail’s defense of the federal securities class action because they relate to whether decreases in the price of Biovail’s stock during the Class Period were caused by Biovail’s alleged misstatements (as Plaintiffs in this action allege) or resulted instead from the acts of the conspiracy.”).
. These allegations curiously first appeared in a subsequently filed New Jersey RICO action by Biovail against many of the parties from whom it seeks discovery here, now removed to Federal Court, Biovail Corp. v. S.A.C. Capital Mgmt., LLC, 2:06-cv-l 625-HAA-SDW (D.N.J.) ("New Jersey RICO Action”). They then appeared in a federal shareholder suit against those same parties, Del Giudice v. S.A.C. Capital Mgmt., LLC, 2:06-cv-1413-HAA-MF (D.N.J.) ("Del Guidice”), copied virtually verbatim from Biovail's RICO case just mentioned and financed by Biovail all the way down to the press releases. The thinking behind Biovail’s decision to pursue these out-of-state actions to assert these claims, as opposed to pleading them as affirmative defenses here, is yet to be explained.
. I will have more to say about these and other pending proceedings hereafter.
. While Maris was given a purportedly "total" release by Biovail, the terms of the release do not apply this to Del Guidice. See supra n. 5. This strikes me as overly formalistic, observing that Rule 17(a) of the Federal Rules of Civil Procedure requires that “every action shall be prosecuted in the name of tire real party in interest.”
. The Court observes that the contents of the truck and its value should be readily discernable from bills of lading or other related records.
Reference
- Full Case Name
- In re BIOVAIL CORPORATION SECURITIES LITIGATION
- Cited By
- 3 cases
- Status
- Published