Schmuckley et al v. Rite Aid Corporation

Filing 414

STIPULATION AND ORDER signed by Chief District Judge Kimberly J. Mueller on 8/30/21 APPROVING 411 Stipulation re Admissibility of Pharmacy Records. (Kaminski, H)

Case 2:12-cv-01699-KJM-JDP Document 414 Filed 08/31/21 Page 1 of 4

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ROB BONTA
Attorney General of California
VINCENT DICARLO
Supervising Deputy Attorney General
BERNICE L. LOUIE YEW, State Bar No. 114601
Deputy Attorney General
Email: [e-mail]
EMMANUEL R. SALAZAR, State Bar No. 240794
Deputy Attorney General
E-mail: [e-mail]
KEVIN C. DAVIS, State Bar No. 253425
Deputy Attorney General
E-mail: [e-mail]
2329 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833-4252
Telephone: [phone]
Fax: [phone]

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Attorneys for State of California

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(Additional counsel listed on signature page)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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

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STIPULATION REGARDING
ADMISSIBILITY AND
AUTHENTICITY OF CERTAIN
RITE AID PHARMACY RECORDS
AND COMMUNICATIONS; ORDER

RITE AID CORPORATION, RITE AID
HDQTRS. CORP., THRIFTY PAYLESS, INC.

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Case No.: 2:12-cv-1699 KJM JDP

Defendants.
STATE OF CALIFORNIA ex rel. LLOYD F.
SCHMUCKLEY, JR.,
Plaintiffs,
Vs.
RITE AID CORPORATION, RITE AID
HDQTRS. CORP., THRIFTY PAYLESS, INC.
Defendants.
Case No.: 2:12-cv-1699 KJM JDP
STIPULATION REGARDING ADMISSIBILITY AND AUTHENTICITY OF RITE AID PHARMACY RECORDS AND
COMMUNICATIONS; [PROPOSED ORDER]

Case 2:12-cv-01699-KJM-JDP Document 414 Filed 08/31/21 Page 2 of 4

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RECITALS

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WHEREAS, Plaintiff-Intervenor State of California (“California”) served Rule 36

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Requests for Admission, Set No. 3 on Defendants Rite Aid Corporation, Rite Aid Hdqtrs. Corp.

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and Thrifty Payless, Inc. (collectively, “Rite Aid”);

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WHEREAS, California’s Requests for Admission, Set No. 3 included Requests for

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Admission Nos. 59-65, which asked Rite Aid to admit that certain documents defined in

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California’s Requests for Admission as “Pharmacy Records”—which Rite Aid previously

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produced in this action, and which correspond to the 1,904 sample claim transactions at issue in

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this action—fall within the scope of Federal Rule of Evidence 803(6);

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WHEREAS, California’s Requests for Admission, Set No. 3 included Request for

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Admission No. 66, which asked Rite Aid to admit that each Pharmacy Record is authentic within

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the meaning of Federal Rule of Evidence 901;

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WHEREAS, the Pharmacy Records that are subject to this Stipulation (“Pharmacy
Records”) are listed separately by Bates number in Exhibit “A” to this Stipulation;
WHEREAS, California’s Requests for Admission, Set No. 3 included Request for

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Admission Nos. 73-87, which asked Rite Aid to admit that certain internal communications

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produced by Rite Aid in this action—which Rite Aid produced with Bates numbers

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RAID0000413-RAID0000414, RAID0001404-RAID0001405, RAID0001439-RAID0001440,

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RAID0000716-RAID0000718 and RAID0001192-RAID0001193 (collectively, the “Code 1

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Communications”)—are admissible and authentic within the meaning of the Federal Rules of

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Evidence;

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WHEREAS, in response to the Requests for Admission specified above, Rite Aid asserted

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various objections, but proposed that it was willing to enter into a stipulation regarding the

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subject matter of these Requests; and

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WHEREAS, Rite Aid, California, and Relator Loyd F. Schmuckley, Jr. (collectively, the

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“Parties”) enter into this Stipulation to relieve the Parties and the Court from having to devote

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resources to an evidentiary dispute regarding the authenticity and admissibility of the Pharmacy

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Records and the Code 1 Communications.
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Case No.: 2:12-cv-1699 KJM JDP

STIPULATION REGARDING ADMISSIBILITY AND AUTHENTICITY OF CERTAIN RITE AID PHARMACY RECORDS AND
COMMUNICATIONS; ORDER

Case 2:12-cv-01699-KJM-JDP Document 414 Filed 08/31/21 Page 3 of 4
STIPULATION

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NOW THEREFORE, the Parties, by and through their respective counsel, stipulate and
agree as follows:
1. The Parties waive any objection(s) to the admissibility of the Pharmacy Records on the

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grounds that they do not meet the requirements of Federal Rule of Evidence 901.

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2. The Parties waive any objections to the admissibility of the Pharmacy Records on the

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grounds that they do not meet the requirements of Federal Rule of Evidence 803(6).
3. The Parties waive any objections to the admissibility of the Code 1 Communications
under the Federal Rules of Evidence.
IT IS SO STIPULATED.

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Respectfully submitted,

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ROB BONTA
Attorney General of the State of California

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Dated: August 23, 2021

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By /s/ Kevin Davis
Kevin C. Davis
Deputy Attorney General
Attorneys for Plaintiff-Intervenor STATE OF
CALIFORNIA

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WATERS & KRAUS, LLP

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Dated: August 23, 2021

By /s/ Paul Lawrence (authorized on 8-20-21)
Wm. Paul Lawrence, II (Pro hac vice)
Washington D.C. Metro Office
37163 Mountville Road
Middleburg, VA 20117
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Qui Tam Plaintiff
LOYD F. SCHMUCKLEY, JR.

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Case No.: 2:12-cv-1699 KJM JDP

STIPULATION REGARDING ADMISSIBILITY AND AUTHENTICITY OF CERTAIN RITE AID PHARMACY RECORDS AND
COMMUNICATIONS; ORDER

Case 2:12-cv-01699-KJM-JDP Document 414 Filed 08/31/21 Page 4 of 4

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MORGAN, LEWIS & BOCKIUS LLP

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Dated: August 23, 2021

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By /s/ Kevin Papay (authorized on 8-23-21)
Benjamin P. Smith
Kevin M. Papay
One Market, Spear Street Tower
San Francisco, CA 94105-1596
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants
RITE AID CORPORATION, RITE AID
HDQTRS. CORP., THRIFTY PAYLESS, INC.

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IT IS SO ORDERED.
DATED: August 30, 2021.

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Case No.: 2:12-cv-1699 KJM JDP

STIPULATION REGARDING ADMISSIBILITY AND AUTHENTICITY OF CERTAIN RITE AID PHARMACY RECORDS AND
COMMUNICATIONS; ORDER