ROCHE DIAGNOSTICS CORP. et al v. BINSON'S HOSPITAL SUPPLIES, INC. et al

Filing 54

ORDER re Plaintiff's #21 Motion for Expedited Discovery - Roche's Motion for Expedited Discovery is DENIED WITHOUT PREJUDICE. (SEE ORDER) Signed by Judge Larry J. McKinney on 5/11/2017. (JKS) Modified on 5/11/2017 (JKS).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ROCHE DIAGNOSTICS CORP., and
ROCHE DIABETES CARE, INC.,

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Plaintiffs,
vs.
BINSON’S HOSPITAL SUPPLIES, INC.,
et al.
Defendants.

No. 1:17-cv-00949-LJM-DML

ORDER ON PLAINTIFFS’ MOTION FOR EXPEDITED DISCOVERY
This matter is before the Court on Plaintiffs’, Roche Diagnostics Corp. and Roche
Diabetes, Inc. (collectively “Roche”), Motion for Expedited Discovery. Dkt. 21. Roche
requests expedited non-party discovery of the Defendants Pharmacy John Does 1-50
(“Pharmacies”) prior to the conference between the parties required by Federal Rule of
Civil Procedure 26(f) (“Rule 26(f)”).
Roche alleges in its Complaint that the unknown Pharmacies, in conjunction with
the Defendants, engaged in a fraudulent scheme to purchase Roche’s blood glucose test
strips at a discount and sell them at a higher rate. See generally Dkt. 12. Roche contends
that “Defendants Pharmacy John Does 1-50 are retail pharmacies, their principals, and
their employees that are involved in the conspiracy to commit insurance fraud … but
whose identities are presently unknown.” Dkt. 12, ¶ 31.
Rule 26(d)(1) of the Federal Rules of Civil Procedure requires that, before any
discovery may be served, the parties must confer as required by Rule 26(f) absent an

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exception, stipulation, or court order.

A party seeking leave to conduct expedited

discovery bears the burden of making a prima facie case for such early discovery. Hard
Drive Prods., Inc. v. Doe, 283 F.R.D. 409, 410 (N.D. Ill. 2012). In order to meet this
burden, the movant must establish “good cause.” Id. Good cause can be found when
the need for expedited discovery, in consideration with the administration of justice,
outweighs the prejudice to the responding party. Id.
Roche argues that good cause exists to permit expedited discovery to identify
crucial defendants to the lawsuit and to prevent the spoliation of evidence. Dkt. 22 at 56. Roche also claims that the identification of these parties will preserve claims under
applicable statutes of limitation and hasten Roche’s recovery in this matter. Dkt. 22 at 6.
Roche has not, however, provided the Court with any reason – aside from some
speculation – that any of these potential harms would occur if Roche is not permitted to
expedite discovery. There is no evidence to suggest that the Pharmacies would destroy
business records or engage in the spoliation of evidence. Nor is there evidence that the
statute of limitations would run as to Roche’s claims against any of the Pharmacies. In
other words, Roche has presented no concrete evidence to establish good cause to
permit expedited discovery in the instant case. See Best v. AT & T, Inc., No. 1:12-cv564, 2014 WL 1923149 at *2 (S.D. Ohio May 14, 2014) (“In the absence of evidence
establishing a need for a preservation order or expediting discovery, the Court finds no
good cause for granting plaintiff’s motions.”).

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Accordingly, Roche’s Motion for Expedited Discovery is DENIED WITHOUT
PREJUDICE.
IT IS SO ORDERED this

11th

day of May, 2017.

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution attached.

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Distribution:
David O. Tittle
BINGHAM GREENEBAUM DOLL LLP
[e-mail]

Aron R Fischer
PATTERSON BELKNAP
TYLER LLP
[e-mail]

Jessica Whelan
BINGHAM GREENEBAUM DOLL LLP
[e-mail]

Joseph R. Richie
PATTERSON BELKNAP
TYLER LLP
[e-mail]

Andrew W. Hull
HOOVER HULL TURNER LLP
[e-mail]

WEBB

&

WEBB

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Jason L. Fulk
HOOVER HULL TURNER LLP
[e-mail]

Geoffrey Potter
PATTERSON
BELKNAP
&TYLER LLP
[e-mail]

Riley H. Floyd
HOOVER HULL TURNER LLP
[e-mail]

Tracy Nicole Betz
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]

Wayne C. Turner
HOOVER HULL TURNER LLP
[e-mail]

Danila V. Artaev
THE MIKE COX LAW FIRM
[e-mail]

Jason L. Fulk,
HOOVER HULL TURNER LLP
[e-mail]

Donna A. Heiser
THE MIKE COX LAW FIRM
[e-mail]

Jennifer Van Dame
KIGHTLINGER & GRAY LLP
[e-mail]

Ernest J. Essad
WILLIAMS, WILLIAMS, RATTNER &
PLUNKETT, PC
380 N. Old Woodward Ave., Suite 300
Birmingham, MI 48009

Robert M. Kelso
KIGHTLINGER & GRAY LLP
[e-mail]
John M. Sier
Kitch Drutchas Wagner
Sherbrook
[e-mail]

Valitutti

WEBB

Mark R. James
WILLIAMS, WILLIAMS, RATTNER &
PLUNKETT, PC
380 N. Old Woodward Ave., Suite 300
Birmingham, MI 48009

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