Schmuckley et al v. Rite Aid Corporation

Filing 301

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/27/2020 AMENDING the schedule as follows: Rite Aid to submit documents for in camera review with supporting declaration and to produce documents not to contain privileged information by 4/22/2020, except for those corresponding to the 4/2007, 1/2010, 4/2010, 4/2011, and 6/2011 board meetings which are due on 4/8/2020. California to file reply to Rite Aid's delcarations by 5/20/2020. (Coll, A)

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MORGAN, LEWIS & BOCKIUS LLP
ERIC W. SITARCHUK, Admitted pro hac vice
[e-mail]
KELLY A. MOORE, Admitted pro hac vice
[e-mail]
BENJAMIN P. SMITH, Bar No. 197551
[e-mail]
KEVIN M. PAPAY, Bar No. 274161
[e-mail]
One Market, Spear Street Tower
San Francisco, California 94105-1596
Tel: [phone]; Fax: [phone]

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Attorneys for Defendant
RITE AID CORPORATION

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA and the
STATES OF CALIFORNIA, et al., ex rel.
LOYD F. SCHMUCKLEY, JR.,
Plaintiffs,

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v.
RITE AID CORPORATION,

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RELATED TO ECF NO. 294, 295

STATE OF CALIFORNIA, ex rel. LOYD F.
SCHMUCKLEY, JR.,

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PARTIES’ JOINT MOTION TO
AMEND DEADLINES RELATED TO
IN CAMERA REVIEW OF RITE AID
BOARD MATERIALS; [PROPOSED]
ORDER

Defendant.

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Case No. 2:12-cv-01699-KJM-EFB

Plaintiffs,
v.
RITE AID CORPORATION,
Defendant.

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

PARTIES’ JOINT MOTION TO AMEND
DEADLINES RE: IN CAMERA REVIEW
Case No. 2:12-cv-01699-KJM-EFB

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PARTIES’ JOINT MOTION TO AMEND DEADLINES RELATED TO IN CAMERA

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REVIEW OF RITE AID BOARD MATERIALS

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TO THE HONORABLE COURT:

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Plaintiff-Intervenor State of California (“California”), Qui Tam Plaintiff Loyd F.

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Schmuckley, Jr. (“Relator,” together with California, “Plaintiffs”), and Defendant Rite Aid

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Corporation (“Defendant” or “Rite Aid,” together with Plaintiffs, the “Parties”), by and through

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their respective counsel of record, for good cause shown, hereby request this Court to extend the

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deadlines for (1) Rite Aid to submit for in camera review Rite Aid board agendas, minutes,

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presentations, tabs, binders, and appendices (“Board Materials”) claimed to contain privileged

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information, along with a supporting declaration, (2) Rite Aid to produce any Board Materials

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determined by Rite Aid to not contain privileged information; and (3) California to file a response

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to Rite Aid’s declaration, all as ordered by this Court on March 16, 2020 (ECF No. 295).

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On March 11, 2020, the Parties filed a joint request for instructions regarding the in

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camera review of Rite Aid’s Board Materials. ECF No. 294. The Parties’ joint request sought

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clarification regarding the scope of Rite Aid’s in camera submission, as well as an extension until

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April 8, 2020 for Rite Aid to conduct its privilege review of Board Materials that Rite Aid

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contended were not within the scope of California’s Requests for Production and therefore had

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not previously been reviewed for privilege or produced.

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On March 16, 2020, the Court ordered Rite Aid to (1) submit for in camera review all

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documents identified in Rite Aid’s December 20, 2019, January 10, 2020, and February 18, 2020

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privilege logs; (2) submit for in camera review all Board Materials—including the tabs, binders,

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and appendices referenced in the parties’ March 11, 2020 joint request—claimed to contain

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privileged information; (3) submit supporting declarations explaining the basis for each assertion

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of attorney-client privilege; (4) serve redacted versions of the supporting declarations on

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California; and (5) produce Board Materials determined to not contain privileged information, all

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by April 8, 2020. ECF No. 295. The Court also ordered California to file a response to Rite

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Aid’s declaration(s) by April 29, 2020. ECF No. 295.

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

On or about March 17, 2020, Rite Aid’s headquarters closed for at least two weeks due to
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PARTIES’ JOINT MOTION TO AMEND
DEADLINES RE: IN CAMERA REVIEW
Case No. 2:12-cv-01699-KJM-EFB

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the coronavirus (COVID-19) pandemic. On March 19, Rite Aid informed California that as a

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result of this closure, Rite Aid cannot access—and therefore cannot review for privilege or collect

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for potential production—a subset of Board Materials that are stored in hard-copy format at Rite

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Aid’s headquarters (the “Inaccessible Board Materials”). The Inaccessible Board Materials

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include, but are not limited to, Board Materials that correspond to five board meetings that are the

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subject of Rite Aid’s ordered in camera submission: April 2007, January 2010, April 2010, April

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2011, and June 2011. Rite Aid therefore asked California to stipulate to extend the deadline for

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Rite Aid to review and/or produce Board Materials for those five meetings by two weeks to April

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22, 2020, with the potential for a further extension if Rite Aid’s office closure continues beyond

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two weeks. On March 20, California agreed to Rite Aid’s requested extension.1

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Rite Aid does not believe that its current office closure will interfere with Rite Aid’s

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ability to complete its review, submission, and/or production of the majority of Board Materials at

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issue, only those corresponding to the five meetings identified above.

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In light of these significant, unanticipated developments, the Parties jointly request the
following modification of the deadlines in the Court’s March 16, 2020 order:

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Event

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Rite Aid to submit for in camera review (with a
supporting declaration) Rite Aid board agendas,
minutes, presentations, tabs, binders, and appendices
claimed to contain privileged information, except for
those corresponding to the April 2007, January 2010,
April 2010, April 2011, and June 2011 board meetings

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Current Date
Proposed Date
(ECF No. 295)
April 8, 2020
April 8, 2020 (same)

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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Because of Rite Aid corporate headquarters’ closure due to the COVID-19 pandemic, California
learned on March 20, 2020, that Rite Aid’s pre-September 2011 board materials were not
electronically stored but rather were kept in hard copies, which Rite Aid’s Morgan Lewis attorney
manually reviewed to determine the board materials responsive to RPD Nos. 23-26 (which sought
documents relating to pharmacy business in California). The Parties are continuing meet-andconfer discussions to resolve California’s concerns regarding this issue. Without waiving any
right or claim, in light of Rite Aid corporate headquarters’ closure, California agrees to Rite Aid’s
limited extension request herein.
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PARTIES’ JOINT MOTION TO AMEND
DEADLINES RE: IN CAMERA REVIEW
Case No. 2:12-cv-01699-KJM-EFB

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Rite Aid to submit for in camera review (with a
supporting declaration) Rite Aid board agendas,
minutes, presentations, tabs, binders, and appendices
claimed to contain privileged information that
correspond to the April 2007, January 2010, April
2010, April 2011, and June 2011 board meetings
Rite Aid to produce any Rite Aid board agendas,
minutes, presentations, tabs, binders, and appendices
determined by Rite Aid to not contain privileged
information, except for those corresponding to the
April 2007, January 2010, April 2010, April 2011, and
June 2011 board meetings
Rite Aid to produce any Rite Aid board agendas,
minutes, presentations, tabs, binders, and appendices
determined by Rite Aid to not contain privileged
information that correspond to the April 2007, January
2010, April 2010, April 2011, and June 2011 board
meetings
California to file a reply to Rite Aid’s declarations

April 8, 2020

April 22, 2020

April 8, 2020

April 8, 2020 (same)

April 8, 2020

April 22, 2020

April 29, 2020

May 20, 2020

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Respectfully Submitted,

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Dated: March 26, 2020

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XAVIER BECERRA
Attorney General of the State of California

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/s/ Emmanuel R. Salazar (authorized on 3/24/2020)

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Emmanuel R. Salazar
Deputy Attorney General
2329 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833-4252
Tel: [phone]; Fax: [phone]
Email: [e-mail]
Attorneys for Plaintiff-Intervenor
STATE OF CALIFORNIA

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Dated: March 26, 2020

WATERS & KRAUS LLP
/s/ Wm. Paul Lawrence II (authorized on 3/24/2020)
Wm. Paul Lawrence II (Pro Hac Vice)
Washington D.C. Metro Office
37163 Mountville Road
Middleburg, VA 20117
Tel: [phone]; Fax: [phone]
Email: [e-mail]
Attorneys for Qui Tam Plaintiff
LOYD F. SCHMUCKLEY, JR.
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PARTIES’ JOINT MOTION TO AMEND
DEADLINES RE: IN CAMERA REVIEW
Case No. 2:12-cv-01699-KJM-EFB

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Dated: March 26, 2020

MORGAN, LEWIS & BOCKIUS LLP
/s/ Benjamin P. Smith
Benjamin P. Smith
Attorneys for Defendant
RITE AID CORPORATION

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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PARTIES’ JOINT MOTION TO AMEND
DEADLINES RE: IN CAMERA REVIEW
Case No. 2:12-cv-01699-KJM-EFB

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[PROPOSED] ORDER
The Court, having considered the Parties’ Joint Motion To Amend Deadlines Related to In

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Camera Review of Rite Aid Board Materials, finds good cause and ORDERS that the schedule

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for the Parties as follows:

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Event
Rite Aid to submit for in camera review (with a
supporting declaration) Rite Aid board agendas,
minutes, presentations, tabs, binders, and appendices
claimed to contain privileged information, except for
those corresponding to the April 2007, January 2010,
April 2010, April 2011, and June 2011 board meetings
Rite Aid to submit for in camera review (with a
supporting declaration) Rite Aid board agendas,
minutes, presentations, tabs, binders, and appendices
claimed to contain privileged information that
correspond to the April 2007, January 2010, April
2010, April 2011, and June 2011 board meetings
Rite Aid to produce any Rite Aid board agendas,
minutes, presentations, tabs, binders, and appendices
determined by Rite Aid to not contain privileged
information, except for those corresponding to the
April 2007, January 2010, April 2010, April 2011, and
June 2011 board meetings
Rite Aid to produce any Rite Aid board agendas,
minutes, presentations, tabs, binders, and appendices
determined by Rite Aid to not contain privileged
information that correspond to the April 2007, January
2010, April 2010, April 2011, and June 2011 board
meetings
California to file a reply to Rite Aid’s declarations

Current Date
Modified Date
(ECF No. 295)
April 8, 2020
April 8, 2020

April 8, 2020

April 22, 2020

April 8, 2020

April 8, 2020

April 8, 2020

April 22, 2020

April 29, 2020

May 20, 2020

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IT IS SO ORDERED.
Dated: March 27, 2020.
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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[PROPOSED] ORDER
Case No. 2:12-cv-01699-KJM-EFB