Law360 (May 28, 2020, 9:05 PM EDT) -- Major drug companies represented by Covington & Burling LLP and other BigLaw firms "jeopardized the health" of an FBI agent by serving subpoenas at his home during the COVID-19 pandemic, according to a U.S. Department of Justice filing in opioid crisis litigation.
The DOJ's 184-page filing on Wednesday in West Virginia federal court related to discovery requests and included several exhibits, including a recent letter in which a U.S. attorney expressed "serious concerns" about large pharmaceutical distributors sending a process server with subpoenas to the Arlington, Virginia, home of an FBI agent named Darren Cox.
"We understand that defendants' process server went to Agent Cox's home on two separate occasions and both times initiated in-person contact with both Agent Cox and his spouse, eventually serving the subpoenas on Agent Cox personally," Michael B. Stuart, the U.S. attorney for the Southern District of West Virginia, wrote in an April 17 letter to Covington partner Laura Flahive Wu.
"Such actions jeopardized the health and safety of Agent Cox and his family," Stuart wrote. "Initiating such unnecessary person-to-person contact with Agent Cox and his family subjected them and the community to an increased risk of COVID-19 transmission, undermining the social distancing order issued by the state of Virginia on March 23, 2020."
Wu, who is based in Washington, D.C., notified the DOJ in an April 3 letter that the subpoenas for testimony and documents were served on Cox, who belonged to a drug task force in Huntington, West Virginia. The city is a plaintiff in the West Virginia opioid litigation, which is one of several bellwether cases in multidistrict litigation that's centralized in Ohio and accuses drug companies of fueling the opioid crisis.
In his letter, Stuart also wrote that the subpoenas put Cox at risk by listing his place of residence.
"By publicizing the home address of an active FBI agent, defendants may have endangered Agent Cox and his family and disrupted his ongoing investigations and cases," Stuart wrote.
The West Virginia litigation targets drug distributors McKesson Corp., AmerisourceBergen Drug Corp. and Cardinal Health Inc. The April 3 letter, which was only signed by Wu as counsel for McKesson, said the defendants collectively served the subpoenas on Cox.
An attorney at McKesson's local counsel, Flaherty Sensabaugh Bonasso PLLC, was listed as the signatory on the subpoenas, which were dated April 2. AmerisourceBergen's lead national counsel is Reed Smith LLP and Cardinal Health's lead national counsel is Williams & Connolly LLP.
Attorneys for the drug companies had no immediate comment on Thursday.
The main document in Wednesday's filing was a written opposition to a motion to compel production of the subpoenaed information. The opposition referenced Stuart's letter, noting that it "expressed concerns about defendants' decision to serve the subpoenas on Agent Cox personally during the pandemic, both due to health and safety concerns and because such service did not comply" with the Federal Rules of Civil Procedure.
The motion to compel and the DOJ's opposition were both apparently filed with the primary purpose of preserving legal arguments. According to the DOJ's opposition, the two sides have essentially reached a deal on discovery, and the "defendants have not expressed even mild dissatisfaction with the FBI's plan to produce certain documents and limited deposition testimony."
The cases are City of Huntington v. AmerisourceBergen Drug Corp. et al., case number 3:17-cv-01362, and Cabell County Commission v. AmerisourceBergen Drug Corp. et al., case number 3:17-cv-01665, in the U.S. District Court for the Southern District of West Virginia.
The MDL is In re: National Prescription Opiate Litigation, case number 1:17-md-02804, in the U.S. District Court for the Northern District of Ohio.
--Editing by Haylee Pearl.
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