IN RE: MCKINSEY & CO. (2026)

ORDER REGARDING PLAINTIFFS' MOTION TO COMPEL AND NONPARTY JOHNSON & JOHNSON'S CROSS-MOTION TO QUASH

Regarding Docket Nos. 980, 993

Before the undersigned is the motion by the NAS Plaintiffs to compel nonparty Johnson & Johnson (“J&J”) to appear for a 30(b)(6) deposition and nonparty J&J's cross-motion to quash. (Dkt. No. 280.) This discovery dispute was also filed as a separate action: In Re: Johnson & Johnson Inc., Case No. 26-mc-80230-SK. The undersigned heard oral argument on September 14, 2026. (Dkt. No. 1028.) This order disposes of Dkt. Nos. 980, 993 in Case No. 21-md-02996-CRB (SK) and the entirety of Case No. 26-mc-80230-SK.

A. Background

The District Court provided background for this action in an order granting in part and denying in part the motion by Defendant McKinsey & Company, Inc. (“McKinsey”) to dismiss the Amended Complaint filed by the NAS Plaintiffs. In re: McKinsey & Co., Inc. Nat'l Prescription Opiate Litig., MDL No. 3084 CRB, 2024 WL 2261926 (N.D. Cal., May 16, 2024.) “The NAS Plaintiffs are children born with birth defects, cognitive deficits, developmental delays, or other symptoms associated with Neonatal Abstinence Syndrome (‘NAS’),” and each birth mother of the NAS Plaintiffs took opioids during pregnancy. Id. at *1. Children exposed to opioids while in utero experience physical problems that can persist until adulthood. Id. at *2.

Opioid manufacturers, including J&J, engaged McKinsey “to help increase the sale of their opioid drugs.” Id. at *2. The NAS Plaintiffs allege that McKinsey had unique knowledge from assisting a variety of manufacturers, and the main focus of the allegations is against opioid manufacturer Purdue. Id. at *2. The NAS Plaintiffs allege that McKinsey's work was a “knowing, intentional effort to increase the sale” of opioids “through unlawful means.” Id. at *3. Plaintiffs allege that McKinsey was aware “of the existence and performance of pregnancy related registries for pharmaceutical products that are widely prescribed to women of childbearing ages for pharmaceutical products.” (Dkt. No. 1-2, Case No. 26-mc-80230.)¹

Purdue pleaded guilty to improper marketing of its opioid products between 2010 and 2018 – specifically “a dual-object conspiracy to defraud the United States and to violate the Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 331, 353, violating anti-kickback laws, and using aggressive marketing tactics to convince doctors to unnecessarily prescribe opioids.” In re: McKinsey & Co., Inc. Nat'l Prescription Opiate Litig., 2024 WL 2261926, at *3.

Plaintiffs sued J&J in another action: In re National Prescription Opioid Litigation, MDL Case No. 1:17-md-02804 (N.D. Ohio) (“2804 MDL litigation”). As was publicly reported, J&J was a defendant in that action and ultimately settled with a multi-billion-dollar payment and agreement not to manufacture or sell prescription opioid painkillers.

After this case began, the parties here submitted a discovery dispute to the undersigned about the repository of documents in the 2804 MDL litigation. That repository of documents contained 64.81 terabytes of data. (Dkt. No. 489.) In the 2804 MDL litigation, J&J produced 4.8 million pages of documents and provided corporate deposition testimony comprising 35 volumes. (Dkt. No. 8, Case No. 26-mc-80230; Dkt. No. 9, Declaration of Nexus U. Sea (“Sea Decl.”) ¶ 3.) The undersigned ordered Plaintiffs to share the data with McKinsey and ruled that the parties could use materials from the 2804 MDL litigation repository in this litigation. (Dkt. Nos. 489, 543.)

On November 3, 2025, Plaintiffs served J&J with a deposition subpoena under Federal Rule of Civil Procedure 30(b)(6) and Rule 45. (Dkt. No. 9, Case No. 26-mc-80230, Sea Decl. ¶ 6.) That subpoena called for a representative to testify on 49 subjects spanning a period of time of 1995 to the present. (Dkt. No. 9, Case No. 26-mc-80230, Sea Decl. ¶ 6 and Ex. C.) J&J served formal objections, and the parties met and conferred over a period of months. (Dkt. No. 9, Case No. 26-mc-80230, Sea Decl. ¶¶ 7-13.) Plaintiffs narrowed their topics to 28 topics. (Dkt. No. 9, Case No. 26-mc-80230, Sea Decl. Ex. G.) The entire list is provided in Attachment A to this Order.

J&J, in an attempt to further narrow the topics, offered to search the documents and deposition transcripts from the 2804 MDL litigation, in exchange for which Plaintiffs agreed to provide a list of facts and admissions that Plaintiffs needed from J&J. (Dkt. No. 9, Case No. 26-mc-80230, Sea Decl. ¶19, Ex. M.) J&J performed its side of the bargain by working with an e-discovery vendor to search the documents in the 2804 MDL litigation, and J&J then reviewed the documents and the deposition transcripts to determine if they were responsive to Plaintiffs' subpoena in this case. (Dkt. No. 9, Case No. 26-mc-80230, Sea Decl. ¶ 20.) This work required a significant amount of work by several attorneys over two weeks and cost tens of thousands of dollars. (Dkt. No. 9, Case No. 26-mc-80230, Sea Decl. ¶ 22.) J&J then sent Plaintiffs a 37-page letter and appendix describing in detail the work setting forth specific locations for documents and deposition transcripts for information responsive to Plaintiffs' subpoena. (Dkt. No. 9, Case No. 26-mc-80230, Sea Decl. ¶ 21, Ex. N.)

Despite the original agreement, Plaintiffs then declined to provide the facts and admissions that Plaintiffs needed from J&J. (Dkt. No. 9, Case No. 26-mc-80230, Sea Decl. ¶ 24.) J&J and Plaintiffs met and conferred on the subpoena at issue, but Plaintiffs ultimately chose to file a motion to compel compliance with the subpoena. (Dkt. No. 9, Case No. 26-mc-80230, Sea Decl. ¶¶ 24-28.)

B. Discussion

On a motion to compel discovery, the moving party must first demonstrate that the information requested is within the scope of permissible discovery. In re: Subpoena to Apple Inc., No. 5:14-cv-80139, 2014 WL 2798863, at *2 (N.D. Cal. Jun. 19, 2014). The burden then shifts to the party opposing discovery to show “that the information is being sought to delay bringing the case to trial, to embarrass or harass, is irrelevant or privileged, or that the person seeking discovery fails to show need for the information.” Id. (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353 n.17, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978)).

Federal Rule of Civil Procedure 45 governs discovery of nonparties by subpoena. The scope of the discovery that can be requested through a subpoena under Rule 45 is the same as the scope under Rule 26(b). Fed. R. Civ. P. 45 advisory committee's note to 1970 amendment (“[T]he scope of discovery through a subpoena is the same as that applicable to Rule 34 and other discovery rules.”); Fed. R. Civ. P. 34(a) (“A party may serve on any other party a request within the scope of Rule 26(b).”). Rule 26(b) allows a party to obtain discovery concerning any nonprivileged matter that is relevant to any party's claim or defense and that is “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).

A court must protect a nonparty subject to a subpoena if the subpoena “requires disclosure of privileged or other protected matter” or the subpoena “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A). The Ninth Circuit has recognized that “[n]onparty witnesses are powerless to control the scope of litigation and discovery, and should not be forced to subsidize an unreasonable share of the costs of the litigation to which they are not a party.” United States v. C.B.S., Inc., 666 F.2d 364, 371 (9th Cir. 1982); see also Lemberg Law LLC v. Hussin, No. 16-mc-80066-JCS, 2016 WL 3231300, at *5 (N.D. Cal. June 13, 2016) (citation omitted) (“The Ninth Circuit has long held that nonparties subject to discovery requests deserve extra protection from the courts.”).

A court must limit discovery if it is unreasonably duplicative, if it can be obtained from a source that is more convenient or less burdensome, or if the burden of producing it outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(C). “Courts routinely disallow discovery from third parties where the same discovery is easily obtained from a party.” Akkawi v. Sadr, 2022 WL 17722605, at *2 (E.D. Cal. Dec. 15, 2022) (citing Glass Egg Digital Media v. Gameloft, Inc., No. 17-cv-04165-MMC-RMI, 2019 WL 4166780, at *5 (N.D. Cal. Sept. 3, 2019)); see also Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 577 (N.D. Cal. 2007) (“Here, the vast majority of the discovery sought from TPGI is discovery obtainable from a source more direct, convenient, and less burdensome – namely, from Defendants.”).

First, J&J demonstrates an undue burden. Finding a corporate representative to testify about 28 sweeping subjects over three decades would be burdensome. Unlike other cases where explanation might be necessary to explain the specific number of hours required to prepare a witness for a corporate deposition, the burden here is obvious. Even an examination of one of the 28 topics shows the extent of the burden to J&J. In topic 2, Plaintiffs seek the following testimony:

Meetings, consultations, sessions, and strategies shared among McKinsey, Johnson & Johnson, or any other group or entity whereby the goal or aim of the meetings or consultations was the increase in the sale of Johnson & Johnson's opioid products Nucynta and Duragesic from 1995 to present.

(Dkt. No. 9, Case No. 26-mc-80230, Sea Decl. Ex. G.) This topic, spanning over 30 years, is extremely broad and would require hundreds of hours of preparation. The other topics are similarly broad in both scope and time period, and they either span the time period from 1995 to the present or provide no specific time limitation. In one topic, topic 37, Plaintiffs seek testimony on information going back to 1984 for the following:

All contracts, memorandum of understanding, licensing agreements or other binding agreements executed after 1984 between Johnson & Johson and Purdue Fredrick, Purdue Pharma or Mallinckrodt involving the development, research, manufacture, distribution or sale of Active Pharmaceutical Ingredients used in the production of synthetic opioids including but not limited to the derivates of the Norman Poppy.

(Dkt. No. 9, Case No. 26-mc-80230, Sea Decl. Ex. G.) This topic would require J&J to search over 40 years of records to respond adequately, an obvious burden. These two examples are only two of 28 equally broad topics.

Underscoring the burden is the futility of the broad requests. J&J would be required to spend hundreds of hours to prepare a corporate representative to testify in a deposition regarding Plaintiffs' 28 topics, but Plaintiffs would not even be able to cover even one of the topics in full in the time allotted to them for a deposition.

Second, the undersigned finds that Plaintiffs have failed to explain why they cannot obtain the information they seek from McKinsey, or, more importantly, from the documents produced by J&J in the 2804 MDL litigation where J&J was a defendant. Plaintiffs' failure to make this showing is especially stark given that J&J provided a 37-page document, after two weeks of work and tens of thousands of dollars, to explain what Plaintiffs could obtain from the 2804 MDL litigation. Despite that work by J&J and despite Plaintiffs' initial agreement about how they would respond, Plaintiffs not only reneged on that agreement but fail here to pinpoint with any specificity why they need corporate testimony on 28 sweeping subjects over a span of 30 years that is different from what they could obtain from the 2804 MDL litigation.

Plaintiffs argue that they need to take a deposition of J&J so that Plaintiffs can enter that deposition testimony in lieu of live testimony at trial or to fend off a motion for summary judgment by McKinsey. However, in failing to narrowly tailor their requests to a reasonable scope and in failing to uphold their agreement with J&J to identify specific topics that they need, they have lost the opportunity to obtain what they actually need. Plaintiffs know what testimony they need from J&J, and they had previously offered to provide more specific topics to J&J so that J&J could prepare a witness on those topics. Yet, after having agreed to provide that information to streamline and narrow the issues, Plaintiffs reneged on that agreement and instead sought to compel a deposition on vast, overbroad topics that they could not address in a time-limited deposition.

For these reasons, the motion to compel the deposition of Johnson & Johnson is DENIED.

IT IS SO ORDERED.

FOOTNOTES

1.   Some documents were only filed on the docket for the miscellaneous matter, 26-mc-80230-SK, and those citations will list the case number. Other citations to the docket numbers will be to the main case.

SALLIE KIM, United States Magistrate Judge