Schmuckley et al v. Rite Aid Corporation

Filing 465

STIPULATION and ORDER signed by Magistrate Judge Jeremy D. Peterson on 01/23/23 re: Thrifty Discovery. Within 1 week, the State of California shall provide the verified statement per the stipulation.(Licea Chavez, V)

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ROB BONTA
Attorney General of California
VINCENT DICARLO
Supervising Deputy Attorney General
E-mail: [e-mail]
BERNICE L. LOUIE YEW, State Bar No. 114601
Deputy Attorney General
E-mail: [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]
Attorneys for State of California

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA, et al., ex
rel. LOYD F. SCHMUCKLEY, JR.,
v.

2:12-CV-1699 KJM JDP
JOINT STIPULATION RE: THRIFTY
PAYLESS, INC.’S DISCOVERY;
PROPOSED ORDER

Plaintiffs,

RITE AID CORPORATION, RITE AID
HDQTRS. CORP., THRIFTY PAYLESS,
INC.
Defendants.
STATE OF CALIFORNIA ex rel. LOYD F.
SCHMUCKLEY, JR.,
v.

Plaintiff,

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

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JOINT STIPULATION RE: THRIFTY PAYLESS, INC.’S DISCOVERY; PROPOSED ORDER (2:12-CV-1699 KJM JDP)

RECITALS

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WHEREAS, on November 9, 2022, Defendant Thrifty Payless, Inc. (“Thrifty”) served on

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non-party Department of Health Care Services (“DHCS”) a Subpoena to Produce Documents,

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Information or Objects or to Permit Inspection of Premises in a Civil Action (“Subpoena”), a true

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and correct copy thereof is attached herein as Exhibit A.

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WHEREAS, on November 9, 2022, Thrifty served on Plaintiff-Intervenor State of

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California, as represented by the Office of the Attorney General, Division of Medi-Cal Fraud and

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Elder Abuse (“DMFEA”), Interrogatories, Set Two, and Request for Production of Documents, Set

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One, both of which contain requests similar to requests included in the Subpoena. A true and

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correct copy thereof are attached herein as Exhibits B and C.
WHEREAS, on December 9, 2022, DMFEA served its objections to the Subpoena, a true
and correct copy thereof is attached herein as Exhibit D.

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WHEREAS, on the mutually agreed upon date of December 30, 2022, DMFEA served its

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objections to Thrifty’s Interrogatories, Set Two, and Requests for Production of Documents, Set

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One, a true and correct copy thereof is attached herein as Exhibits E and F.

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WHEREAS, on January 5, 2023, Defendants Thrifty, Rite Aid Corporation, and Rite Aid

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Hdqtrs. Corp. (collectively, “Defendants”) wrote DMFEA regarding DMFEA’s December 30,

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2022 objections, a true and correct copy thereof is attached herein as Exhibit G.

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WHEREAS, on the mutually agreed upon date of January 9, 2022, DHCS served its

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objections and responses to the Subpoena, generally indicating that it did not find responsive

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documents, a true and correct copy thereof is attached herein as Exhibit H.

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WHEREAS, on January 10, 2023, DMFEA supplemented its responses to Thrifty’s

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Requests for Production of Documents, Set One, generally indicating that without waiving any

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objections DHCS did not find any responsive documents, a true and correct copy thereof is attached

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herein as Exhibit I.

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WHEREAS, on January 17, 2023, Defendants filed a pre-motion conference brief before

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The Honorable Jeremy D. Peterson regarding DMFEA’s objections and responses to Thrifty’s

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Interrogatories, Set Two, and Requests for Production of Documents, Set One.
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JOINT STIPULATION RE: THRIFTY PAYLESS, INC.’S DISCOVERY; PROPOSED ORDER (2:12-CV-1699 KJM JDP)

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WHEREAS, on January 18, 2023, DMFEA, DHCS, and Defendants held a conference call

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to discuss the discovery disputes arising from DMFEA’s objections and responses to Thrifty’s

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Interrogatories, Set Two, and Requests for Production of Documents, Set One. During the call and

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in subsequent correspondence, the following were exchanged:

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•

DMFEA and DHCS maintain that Defendants have violated Local Rule 251 and

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the magistrate’s civil procedure rules for not adequately meeting and conferring

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about the discovery dispute before including the issue in its pre-motion conference

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brief.

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•

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Subpoena.
•

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DHCS maintains that it has conducted a reasonable search to respond to the

DMFEA maintains that it has conducted a reasonable search to respond to Thrifty’s
Interrogatories, Set Two, and Requests for Production of Documents, Set One.

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Defendants request that DMFEA provide a verified statement detailing the steps

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that DHCS conducted to search for documents responsive to Thrifty’s Request for

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Production of Documents, Set One.

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•

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DMFEA maintains that DHCS is not DMFEA’s client and DMFEA is not DHCS’s
attorneys.

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DMFEA maintains that the information obtained by DMFEA attorneys to inquire

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about the search conducted by DHCS to respond to the subpoena (and for DMFEA

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to respond to Thrifty’s Interrogatories, Set Two, and Requests for Production of

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Documents, Set One) constitute attorney work product and DMFEA has no

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intention of waiving its attorney work product, while Defendants maintain all rights

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and objections regarding the privilege contentions of DMFEA.

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WHEREAS, to avoid undue burden and expense in having DHCS supply further

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information, to expedite and facilitate discovery, and to avoid motion practice, the parties are

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entering into this stipulation in good faith.

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JOINT STIPULATION RE: THRIFTY PAYLESS, INC.’S DISCOVERY; PROPOSED ORDER (2:12-CV-1699 KJM JDP)

STIPULATION

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DEFENDANTS RITE AID CORPORATION, THRIFTY PAYLESS, INC., and RITE

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AID HDQTRS. CORP. (“Defendants”), PLAINTIFF STATE OF CALIFORNIA as represented

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in this Action by the Division of Medi-Cal Fraud and Elder Abuse under the Office of the

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Attorney General (“DMFEA”), and third-party DEPARTMENT OF HEALTH CARE

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SERVICES (“DHCS”), by and through their respective counsel, THEREFORE HEREBY

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STIPULATE AND AGREE TO THE FOLLOWING:

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1.

Defendants agree that any information disclosed by DMFEA relating to the search

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conducted by DHCS in connection with Thrifty’s Subpoena and Thrifty’s Interrogatories, Set Two,

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and Requests for Production of Documents, Set One, would not constitute a waiver of any of

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DMFEA’s and DHCS’s privileges, including attorney work product.

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2.

Subject to Defendant’s agreement in paragraph 1, DMFEA will provide a verified

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statement of its understanding of the steps taken by DHCS in connection with the Subpoena and by

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DMFEA in connection with Thrifty’s Interrogatories, Set Two, and Requests for Production of

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Documents, Set One.

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3.

Notwithstanding paragraphs 1 and 2, this stipulation does not waive any legal

positions or objections maintained by Defendants, DHCS, and DMFEA.
4.

Defendants agree to withdraw without prejudice the issues related to DMFEA’s

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objections and responses to Thrifty’s Interrogatories, Set Two, and Requests for Production of

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Documents, Set One, from the January 19, 2023 pre-motion conference hearing before The

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Honorable Jeremy D. Peterson.

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IT IS SO STIPULATED.

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Respectfully submitted,
Dated: January 19, 2023

ROB BONTA
Attorney General of the State of California
By /s/ Emmanuel R. Salazar
Emmanuel R. Salazar
Deputy Attorney General
Attorneys for Plaintiff-Intervenor STATE OF
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JOINT STIPULATION RE: THRIFTY PAYLESS, INC.’S DISCOVERY; PROPOSED ORDER (2:12-CV-1699 KJM JDP)

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CALIFORNIA
Dated: January 19, 2023

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By /s/ Benjamin P. Smith (authorized on 1/19/2023)
Ryan McCarthy
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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MORGAN, LEWIS & BOCKIUS LLP

Dated: January 19, 2023

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By /s/ Brenda Ray (authorized on 1/19/2023)
Brenda Ray
Deputy Attorney General
Health, Education, and Welfare Section
Office of the Attorney General
1300 I Street, Room 1630-18
Sacramento, CA 904244-2550
E-mail: [e-mail]

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[PROPOSED] ORDER

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The Court, having considered the JOINT STIPULATION RE: THRIFTY DISCOVERY,

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finds good cause and ORDERS THAT the JOINT STIPULATION RE: THRIFTY DISCOVERY

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is approved and FURTHER ORDERS THAT within one week of the issuance of this order the

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State of California shall provide the verified statement per the stipulation.

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IT IS SO ORDERED.

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Dated: January 23, 2023

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JOINT STIPULATION RE: THRIFTY PAYLESS, INC.’S DISCOVERY; PROPOSED ORDER (2:12-CV-1699 KJM JDP)