UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

IMS Health Incorporated and

Verispan, LLC

v. Civil No. 06-cv-280-PB

New Hampshire Attorney General

O R D E R

 Defendant moves to quash a subpoena duces tecum served by

plaintiffs on Eli Lilly and Company for past employment records

of a witness retained by defendant. Plaintiffs object. 

Background

Plaintiffs filed a complaint challenging the

constitutionality of N.H. Rev. Stat. Ann. §§ 318:47-f, 318:47-g

and 318-B:12, IV and a motion for preliminary injunction to

prevent its enforcement. These statutory provisions ban the

licensing, sale, transfer or use of prescriber-identifiable

information for certain commercial purposes. 

Defendant disclosed Shahram Ahari, an ex-Eli Lilly sales

representative, as a witness who would testify as to how he and

others used prescriber-identifiable data in their sales promotion

of prescription drugs. Plaintiffs’ counsel served a subpoena

duces tecum on Laura Stemle of Lilly Corporate Center,

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Indianapolis, Indiana commanding inspection of Lilly’s employment

records relating to Mr. Ahari, the inspection being called for at

counsel’s office in Miami, Florida. 

Discussion

In its objection to the motion plaintiffs set out exactly

two sentences to describe the evidence in the subpoenaed

employment records which might be “reasonably calculated to lead

to the discovery of admissible evidence” as required by Fed. R.

Civ. P. 26(b)(1). These sentences are: 

Document no. 77

1. page 5. “Rather than taking Mr. Ahari’s

testimony at face value, the plaintiffs are

trying to investigate the truthfulness of Mr.

Ahari’s testimony on critical issues, such as

whether and when he actually worked at Eli

Lilly, the degree of training that he

received as a sales representative, Mr.

Ahari’s claimed use of prescriberidentifiable data, and the facts surrounding

Mr. Ahari’s claimed decision to resign from

Eli Lilly after less then (sic) two years on

the job.” 

2. page 12. “The records may reveal that the

witness has not been truthful concerning the

nature of his employment by Eli Lilly, his

utilization of prescriber-identifiable data

as a sales representative for Eli Lilly, or

the reasons for his departure for Eli Lilly”. 

Unless Eli Lilly employees have been disclosing information

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from Ahari’s personnel file to plaintiffs’ counsel on the “q.t.”

counsel has no idea what the subpoena will produce. Counsel is

on a “fishing expedition” or is combining with Eli Lilly to

attempt to embarrass Mr. Ahari. The rationale is thin. The

court would be surprised if the personnel file contains anything

about use of prescriber-identifiable data. The dates of

employment are hardly the stuff of scintillating crossexamination. Whether Ahari worked for Eli Lilly or whether he

was fired instead of resigning could, however, potentially be of

use on cross, although they do not relate to critical issues in

the case as plaintiffs claim. The tone of the deposition

combined with the sparseness of the justification for the

discovery causes me to be cautious. Further, the personnel file

may contain confidential medical or other material and there is

no indication that Mr. Ahari, who might have grounds to seek to

quash the subpoena, has been notified. 

Defendant, on the other hand, has no standing to object to

the subpoena. See Wright & Miller, Federal Practice and

Procedure: § 2459 (2d ed. 1994); Moore’s Federal Practice, §

45.04[2] (3d ed. 2006). The motion is denied except that to

limit the risk of abuse of subpoena, defense counsel is to

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forward unopened and under seal the subpoenaed personnel file to

me for an in camera review and to notify Mr. Ahari of the

subpoena and of his right to object to the production. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 5, 2007

cc: Counsel of record

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