Kentucky CVS Pharmacy, LLC v. McKinney et al

Filing 38

OPINION AND ORDER: (1) CVS' 15 Motion to Expedite discovery GRANTED; (2) parties shall serve requests for production of documents w/in 7 days; (3) Responses to those requests shall be due w/in 14 days after service; (4) all party depositions shall be completed w/in 60 days. Signed by Judge Karl S. Forester on 4/16/2013. (STB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

CIVIL ACTION NO. 5:13-CV-25-KSF
KENTUCKY CVS PHARMACY, LLC

vs.

PLAINTIFF

OPINION AND ORDER

JOHN MCKINNEY, et al.

DEFENDANTS
********

This matter is before the Court on the motion of Plaintiff for expedited discovery. For the
reasons discussed below, the motion will be granted.
I.

BACKGROUND
The background facts of this case are reviewed in more detail in the Court’s Opinion and

Order denying motions to dismiss. DE 37. For purposes of the present motion, the following
additional facts are relevant. Plaintiff’s Amended Complaint alleges tortious interference with
contractual relations by the Defendants and unfair competition by Spencer Drugs. Plaintiff filed a
motion for expedited discovery [DE 15] along with a motion for preliminary injunction [DE 14].
Plaintiff explains in his expedited discovery motion that critical information and evidence relevant
to the motion for an injunction are in the hands of the Defendants. Accordingly, CVS seeks limited
expedited discovery prior to any hearing or ruling on the injunction.
II.

ANALYSIS
Pursuant to Rule 26(d), this Court has discretion to order expedited discovery where a party

shows good cause for this departure from the usual discovery process. Fed. R. Civ. P. 26(d); 5ifth
Element Creative, LLC v. Kirsch, No. 5:10-cv-255-KKC, 2010 WL 4102907 at *2 (E. D. Ky. Oct.
18, 2010). Expedited discovery “will be appropriate in some cases, such as those involving
requests for a preliminary injunction....” 1993 Advisory Committee Note. “[S]uch requests must

be narrowly tailored to obtain information relevant to the determination of the preliminary
injunction.” 5ifth Element, 2010 WL 4102907 at *2.
Plaintiff’s requests for production of documents are as follows:
1.

A copy of the agreement establishing the Trust and any amendments thereto.

2.

A copy of the Lease, and any amendments thereto.

3.

All documents related to communications between you and the Trust regarding the Lease.

4.

All documents related to communications between you and any third parties (except your
counsel) regarding the Lease.

5.

Any legal opinions that were obtained by you that addressed whether the opening of
Spencer Drug at 110 Big Hill Avenue, Richmond, Kentucky 40475 may violate any provision
of the Agreement.

The Court finds that these requests are narrowly tailored to focus on the alleged breach of the noncompete provision of the Agreement and are appropriate for expedited discovery.
The Trust and Spencer Drug argue that the Court should rule on their motions to dismiss
before granting any expedited discovery. That request was honored. All motions that were ripe
have been ruled upon. DE 37. All Defendants suggest the Court should rule on the merits of the
motion for preliminary injunction before allowing any discovery. The purpose of the request for
expedited discovery, however, is in aid of the motion for preliminary injunction. Plaintiff has shown
good cause for expedited discovery.
Plaintiff also argues “it needs to depose the McKinneys and others in order to learn the full
extent of” the breach of the covenant not to compete, directly or indirectly, with CVS. DE 155-1 at
2-3. In its proposed Order, CVS says that “[a]ll party depositions shall be completed within twentyeight (28) days of this Order.” DE 15-2. Counsel for the McKinneys objects to this shortened time
frame and notes a conflict with a trial beginning on April 15. The Trust also argues that the
“proposed 28 days for party depositions is unreasonable.” It proposes discovery over a minimum

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period of six months. DE 28. The Court finds that both twenty-eight days and six months are
unreasonable. At this stage, Plaintiff’s allegations and all inferences therefrom are taken as true.
CVS alleges that every day Spencer Drug is allowed to compete, CVS is losing the goodwill for
which it paid. Accordingly, an expedited schedule is appropriate.
III.

CONCLUSION
IT IS ORDERED that:
1.

CVS’ motion for expedited discovery [DE 15] is GRANTED;

2.

The parties shall serve requests for production of documents within seven days of
this Order;

3.

Responses to those requests shall be due within fourteen days after service; and

4.

All party depositions shall be completed within sixty days of this Order

This April 16, 2013.

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