Schmuckley et al v. Rite Aid Corporation

Filing 316

ORDER signed by Chief District Judge Kimberly J. Mueller on 6/16/2020 MODIFYING the Scheduling Order as follows: Second Phase of Discovery Completed - 6/4/2021; Expert Disclosures (other than sampling methodology/design) - 8/6/2021; Rebuttal Expert Disclosures (other than sampling methodology/design) - 9/10/2021; Expert Discovery Completed - 10/15/2021; Last Day to Hear Dispositive Motions - 4/15/2022 at 10:00 A.M. in Courtroom No. 3 (Becknal, R)

1
2
3
4
5
6

XAVIER BECERRA
Attorney General
VINCENT DICARLO
Supervising Deputy Attorney General
BERNICE L. LOUIE YEW
Deputy Attorney General
EMMANUEL R. SALAZAR (SBN 240794)
Deputy Attorney General
[e-mail]
2329 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833
Tel.: [phone]

7
8

Attorneys for Plaintiff-Intervenor
STATE OF CALIFORNIA

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11
12
13

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

14
15
16

Plaintiffs,

19

Related to ECF No. 260
RITE AID CORPORATION,
Defendant.
STATE OF CALIFORNIA, ex rel. LOYD F.
SCHMUCKLEY, JR.,
Plaintiffs,

20
21
22
23

PARTIES’ JOINT MOTION TO
MODIFY THE SCHEDULING ORDER
TO PERMIT ADDITIONAL TIME TO
CONDUCT DISCOVERY; ORDER

v.

17
18

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

v.
RITE AID CORPORATION,
Defendant.

24
25
26
27
28
PARTIES’ JOINT MOT TO EXT TIME TO CONDUCT
DISCOVERY
Case No. 2:12-cv-01699-KJM-EFB

1

PARTIES’ JOINT MOTION TO MODIFY THE SCHEDULING ORDER TO PERMIT
ADDITIONAL TIME TO CONDUCT DISCOVERY

2

TO THE HONORABLE COURT:

3

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

4
5
6
7
8

Schmuckley, Jr. (“Relator,” together with California, “Plaintiffs”), and Defendant Rite Aid
Corporation (“Defendant” or “Rite Aid,” together with Plaintiffs, the “Parties”), by and through
their respective counsel of record, for good cause shown, hereby request this Court to modify the
scheduling order to permit additional time for the Parties to conduct discovery.
In late March, consistent with State and County public health orders related to the COVID-

9
10
11
12
13
14
15
16
17

19 pandemic, the California Attorney General’s Office issued a directive encouraging all attorneys
and staff to work remotely. Further, California’s attorneys in this matter are subject to public health
orders generally prohibiting travel outside of Sacramento County with limited exceptions.1 Rite
Aid closed its corporate offices on March 17, 2020 pursuant to Pennsylvania stay at home orders
and has not yet reopened. The San Francisco and Philadelphia offices of Morgan, Lewis & Bockius
LLP, Rite Aid’s counsel in this matter, have been closed since March as well due to State and
County public health orders. Despite these obstacles, the Parties have continued to work together
to make progress on unresolved discovery matters.
I.

18

The Parties have made progress on a number of potential disputes regarding document

19
20
21
22
23
24
25
26

Requests to Produce Documents

productions. However, the Parties require additional time to try to informally resolve other pending
issues or, if those efforts are unsuccessful, to seek and obtain Court adjudication. The Parties’
ongoing efforts to resolve these issues, examples of which are described below, have been impacted
by the ongoing COVID-19 pandemic and resulting limitations on the parties’ ability to efficiently
conduct discovery. In particular, the (continuing) closure of Rite Aid’s corporate offices has
significantly impaired Rite Aid’s ability to collect (and therefore analyze or produce) potentially
responsive documents.
1

27
28

Governor Newsom’s Executive Order N-33-20, issued March 19, 2020, ordered Californians to stay home or at
their place of residence with limited exceptions. Sacramento County Public Health Order 3-19-2020 imposed a
general prohibition on travel with certain limited exceptions. These restrictions remain in place. See Sacramento
County Public Health Order 5-26-2020.
PARTIES’ JOINT MOT TO EXT TIME TO CONDUCT
DISCOVERY
Case No. 2:12-cv-01699-KJM-EFB

1

Pursuant to the Court’s May 19, 2020 order (ECF No. 313), Rite Aid anticipates that it will

2

complete its production of certain non-privileged Board Materials and submission of privileged

3

Board Materials for the Court’s in camera review by June 22, 2020. Despite the continuing closure

4

of Rite Aid’s corporate headquarters where the hard-copy materials at issue are maintained, Rite

5

Aid has taken steps to obtain these materials and intends to meet this deadline. Rite Aid also intends

6

to submit a declaration to the Court on June 22, 2020 supporting its privilege assertions for the

7

Board Materials submitted for in camera review. California will file a response to Rite Aid’s

8

declarations by July 20, 2020. Depending on the scope of the parties’ privilege claims and this

9

Court’s determinations regarding the in camera submission, the Parties may need additional time

10

to resolve issues related to Rite Aid’s production of Board Materials.

11

Relator and Rite Aid have met and conferred for several months to narrow the scope of

12

disputes relating to Rite Aid’s written responses to Relator’s RPD Set No. 2 and RPD Set No. 3.

13

As of May 4, 2020, the remaining disputes regarding Rite Aid’s written responses to those sets

14

concern Rite Aid’s written objections/responses to RFP nos. 14, 18, 19, 26 and 32 (Set No. 2) and

15

RFP nos. 45-54 (Set No. 3). The Parties are hopeful that they will be able to resolve these disputes.

16

However, Rite Aid is following up on several inquiries posed by Relator in an e-mail sent on May

17

4, 2020 regarding the scope and status of searches, as well as the time of productions. If the Parties

18

are not able to resolve the remaining disputes informally, Relator will need time to obtain a ruling

19

from the Court.

20

On March 13, 2020, just before shelter-in-place orders were issued, counsel for California

21

and counsel for Relator deposed Rite Aid’s Director of Treasury Services, Jennifer Wagner-Parrish,

22

in Pennsylvania regarding certain Rite Aid financial records. Plaintiffs’ deposition notice included

23

document requests, and the parties negotiated the scope of Rite Aid’s production of documents in

24

response to several of those request in advance of the deposition. After the deposition, however,

25

counsel for California raised questions regarding the scope of those productions and has requested

26

additional records. The Parties are meeting and conferring in an effort to resolve the dispute, but

27

resolution is unlikely until Rite Aid’s corporate offices reopen. If the meet and confer efforts prove

28
2

PARTIES’ JOINT MOT TO EXT TIME TO CONDUCT
DISCOVERY
CASE NO. 2:12-CV-01699-KJM-EFB

1

to be unsuccessful, California will need time to file a motion to compel and/or a motion for

2

sanctions.

3

On March 24, 2020, California propounded its RPD, Set No. 8, which contains 88 document

4

requests. Rite Aid served its objections and responses on May 22, 2020, which include a

5

combination of agreements to search for responsive documents, refusals to produce requested

6

documents, and assertions that it has no responsive documents. The Parties need additional time

7

to meet and confer over Rite Aid’s responses and, if those efforts are unsuccessful, for California

8

to move to compel further responses.

9

Plaintiffs have requested internal and external communications in Rite Aid’s possession

10

related to a number of different topics and previously served documents requests. The Parties have

11

engaged in an extended meet and confer effort regarding the scope of review for potentially

12

responsive electronic communications, or electronically stored information (ESI). This includes

13

ongoing negotiations regarding search terms, custodians, electronic sources, and a relevant time

14

period. The Parties need additional time to meet and confer regarding these issues, which have

15

been impaired by the (continuing) COVID-19 pandemic. Once the parties reach an agreement

16

regarding the scope of this review, Rite Aid will require substantial time—likely a few months,

17

depending on the scope of the review—to collect, review, and produce any responsive

18

communications. The production of these records may impact the scope of further discovery,

19

including depositions.

20

II.

Depositions

21

As described above, Plaintiffs were able to conduct the deposition of Ms. Wagner-Parrish

22

in Pennsylvania on March 13, 2020 immediately prior to the onset of the COVID-19 restrictions.

23

However, the Parties have not been able to conduct any other depositions since that time.

24

On November 1, 2019, Counsel for California served a Rule 30(b)(6) deposition notice on

25

Rite Aid identifying ten topics. Rite Aid identified four Rule 30(b)(6) witnesses who would testify

26

to the ten identified topics. The Parties originally scheduled the depositions of Rite Aid’s four Rule

27

30(b)(6) witnesses in Pennsylvania for four days in January and February of 2020. However, those

28
3

PARTIES’ JOINT MOT TO EXT TIME TO CONDUCT
DISCOVERY
CASE NO. 2:12-CV-01699-KJM-EFB

1

depositions were taken off calendar pending Rite Aid’s production of additional materials requested

2

by Plaintiffs. In addition, the Parties are waiting to reschedule the Rule 30(b)(6) depositions until

3

the applicable public health orders related to the COVID-19 pandemic more freely permit travel.2

4

In addition to Plaintiffs’ deposition of Rite Aid’s Rule 30(b)(6) witnesses, Plaintiffs intend

5

to depose individuals whose involvement in the facts and circumstances of the case is revealed

6

through Plaintiffs’ review of the requested communications Rite Aid has agreed to produce.

7

Plaintiffs also intend to depose any witnesses Rite Aid discloses in any supplement to its Rule 26

8

initial disclosures.3

9

Rite Aid has not yet issued any deposition subpoenas, but intends to depose certain

10

witnesses from Plaintiffs, California’s Department of Healthcare Services, and potentially other

11

third parties.

12

III.

The Scheduling Order’s Current Deadlines and Proposed Modified Dates

13

The current deadline for the Parties to complete all non-expert discovery is August 7, 2020.

14

This does not give the Parties enough time to complete the document productions and depositions

15

set forth above, or to resolve outstanding discovery disputes. The Parties therefore submit this joint

16

motion requesting the Court to find good cause and approve the below proposed schedule, as

17

follows:

18
Event

19

Second Phase of Discovery
Completed
Expert Disclosures (other than
sampling methodology/design)
Rebuttal expert disclosures (other
than sampling methodology/design)
Expert Discovery Completed
Last Day to Hear Dispositive

20
21
22
23
24

Current Deadline
[ECF 260]
August 7, 2020

Proposed Modified Date

October 2, 2020

August 6, 2021

November 13, 2020

September 10, 2021

December 18, 2020
May 28, 2021 at 10:00

October 15, 2021
April 1, 2022

June 4, 2021

25
2

26
27
28

If the applicable public health orders related to the COVID-19 pandemic make travelling to in-person depositions
impracticable for an extended period of time, the Parties acknowledge that they may have to conduct depositions
telephonically or through video-conference.
3
Specifically, the Parties are meeting and conferring about discovery related to the Rite Aid pharmacy associates
who were involved in dispensing the prescriptions associated with the sample claims.

4

PARTIES’ JOINT MOT TO EXT TIME TO CONDUCT
DISCOVERY
CASE NO. 2:12-CV-01699-KJM-EFB

1

Motions

A.M. in Courtroom No. 3

2
3
4

Dated: June __, 2020

5

/s/ Emmanuel R. Salazar
___________________________________
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

6
7
8
9
10
11
12

Respectfully Submitted,
XAVIER BECERRA
Attorney General of the State of California

Dated: June __, 2020

13

WATERS & KRAUS LLP
/s/ Wm. Paul Lawrence II (authorized June 5, 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.

14
15
16
17
18
19
20
Dated: June __, 2020

MORGAN, LEWIS & BOCKIUS LLP

21
22
23
24

/s/ Benjamin P. Smith (authorized June 5, 2020)
___________________________________
Benjamin P. Smith
Attorneys for Defendant
RITE AID CORPORATION

25
26
27
28
5

PARTIES’ JOINT MOT TO EXT TIME TO CONDUCT
DISCOVERY
CASE NO. 2:12-CV-01699-KJM-EFB

1
2

ORDER

3

The Court, having considered the Parties’ Joint Motion to Modify the Scheduling Order to

4

Permit More Time for Parties to Conduct Discovery, finds good cause and ORDERS that the

5

schedule for the Parties is amended as follows:

6
7
8
9
10
11
12

Event
Second Phase of Discovery
Completed
Expert Disclosures (other than
sampling methodology/design)
Rebuttal expert disclosures (other
than sampling methodology/design)
Expert Discovery Completed
Last Day to Hear Dispositive
Motions

Current Deadline
[ECF 260]
August 7, 2020

Modified Date

October 2, 2020

August 6, 2021

November 13, 2020

September 10, 2021

December 18, 2020
May 28, 2021 at 10:00
A.M. in Courtroom No. 3

October 15, 2021
April 15, 2022

June 4, 2021

13
14
15

IT IS SO ORDERED.
DATED: June 16, 2020.

16
17
18
19
20
21
22
23
24
25
26
27
28
6

PARTIES’ JOINT MOT TO EXT TIME TO CONDUCT
DISCOVERY
CASE NO. 2:12-CV-01699-KJM-EFB