Schmuckley et al v. Rite Aid Corporation

Filing 424

ORDER signed by Magistrate Judge Jeremy D. Peterson on 10/20/2021 GRANTING 423 Stipulation for Rite Aid's Agreement to Answer Interrogatory No. 11. (Coll, A)

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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.

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

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ECF NO. 423

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

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STIPULATION REGARDING RITE
AID’S AGREEMENT TO ANSWER
CALIFORNIA’S INTERROGATORY
NO. 11; ORDER

Defendants.

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

Plaintiffs,
Vs.
RITE AID CORPORATION, RITE AID
HDQTRS. CORP., THRIFTY PAYLESS, INC.
Defendants.
RECITALS
WHEREAS, Plaintiff-in-Intervention State of California (“California”) and Defendants
Rite Aid Corporation, Rite Aid Hdqtrs. Corp. and Thrifty Payless, Inc. (“Rite Aid”) (collectively,
“Parties”) wish to enter into this Stipulation in order to resolve their dispute regarding Rite Aid’s
response to California’s Interrogatory No. 11.

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WHEREAS, on April 8, 2021, California served “Plaintiff State of California’s Rule 36

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Requests for Admission to Defendant Rite Aid Corporation, Set No. 3” (“Requests for

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Admission”). A true and correct copy of the Requests for Admission is attached as Exhibit “A.”

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WHEREAS, California’s Request for Admission No. 53 states: “Separately for each

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SAMPLE CLAIM: Admit that during the DISPENSING of the SAMPLE CLAIM RITE AID did

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not perform a CODE 1 REVIEW.”

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WHEREAS, for purposes of Request for Admission No. 53: “CODE 1 REVIEW” was

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defined as “the pharmacy’s act(s) of verifying that the CODE 1 RESTRICTIONS have been met,

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e.g., the beneficiary has the required diagnosis, or meets the other conditions listed in the CDL.

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See CII & FACII, ¶¶ 89-93; FAA, ¶¶ 89-93.”

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WHEREAS, on April 8, 2021, California served “Plaintiff State of California’s Rule 33

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Interrogatories to Defendant Rite Aid Corporation, Set No. 2” (“Interrogatories”) on Defendant

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Rite Aid Corporation. A true and correct copy of the Interrogatories is attached as Exhibit “B.”

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WHEREAS, California’s Interrogatory No. 11 states: “If RITE AID’s response to

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CALIFORNIA’s Request for Admission No. 53 is anything other than an unqualified admission,

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IDENTIFY all facts, WITNESSES and DOCUMENTS that support RITE AID’s response.”

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WHEREAS, on April 7, 2021, the Court granted California’s Motion to Amend its

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Complaint-in-Intervention and deemed its First Amended Complaint to be filed naming additional

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Defendants Rite Aid Hdqtrs. Corp. and Thrifty Payless, Inc. (ECF 400).

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WHEREAS, pursuant to the stipulated order entered by the Court on June 8, 2021 (ECF

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409), Defendants Rite Aid Hdqtrs. Corp. and Thrifty Payless, Inc. agreed to respond to the above-

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referenced Requests for Admission and Interrogatories “jointly with Rite Aid Corporation on the

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response deadline(s) agreed to by the parties.”

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WHEREAS, on June 16, 2021 Defendants served responses to the above-referenced

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Requests for Admission and Interrogatories wherein they denied Request for Admission No. 53

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for each of the 1,904 claims in Plaintiffs’ court-approved statistical sample and objected to

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Interrogatory No. 11 on multiple grounds without providing a substantive response.

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WHEREAS, after meeting and conferring, on August 24, 2021 the Parties participated in a

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pre-motion telephone conference with Judge Jeremy Peterson wherein Judge Peterson ordered the

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Parties to further meet and confer.

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WHEREAS, on September 21, 2021, the Parties participated in a second pre-motion

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telephone conference with Judge Peterson wherein Judge Peterson ordered the Parties to further

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meet and confer, but granted permission for California to file a motion to compel Defendants to

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provide a further response to California’s Interrogatory No. 11 if further meet and confer did not

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resolve the issue.

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WHEREAS, pursuant to Judge Peterson’s September 21, 2021 order, the Parties further
met and conferred regarding the response to California’s Interrogatory No. 11.
WHEREAS, the Parties each now voluntarily enter into this Stipulation as set forth below.

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STIPULATION
NOW THEREFORE, the Parties, by and through their respective counsel, stipulate and
agree as follows:
1. By October 15, 2021, Defendants shall serve a supplemental response to California’s

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Interrogatory No. 11 that, while not addressing each of the 1,904 sample claims

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individually, generally describes Defendants’ bases for denying California’s Request for

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Admission No. 53.

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2. By November 24, 2021, Defendants shall serve another supplemental response to

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California’s Interrogatory No. 11 that—on a claim-specific basis—identifies the facts,

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witnesses and documents that support Defendants’ denial of California’s Request for

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Admission No. 53. If Defendants are relying on the potential testimony of one or more

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witnesses to support their denial of Request for Admission No. 53, Defendants shall

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summarize the anticipated pertinent testimony of those witnesses.

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IT IS SO STIPULATED.

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Respectfully submitted,

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ROB BONTA
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Attorney General of the State of California
Dated: October 13, 2021

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

MORGAN, LEWIS & BOCKIUS LLP

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Dated: October 13, 2021

By /s/ Kevin Papay (authorized on 10/13/21)
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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ORDER
The parties’ stipulation, ECF No. 423, is construed as a motion and granted.

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IT IS SO ORDERED.

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Dated:

October 20, 2021
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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