Prime Aid Pharmacy Corp v. Express Scripts, Inc.

Filing 139

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to defendant to provide unredacted responses to its first and second sets of requests for production of documents [Doc. # 87 ] is denied. Signed by District Judge Carol E. Jackson on 7/27/17. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PRIME AID PHARMACY CORP.,
Plaintiff,
vs.
EXPRESS SCRIPTS, INC.,
Defendant.

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Case No. 4:16-CV-1237 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion to compel defendant to
provide unredacted responses to its first and second sets of requests for production
of documents. Defendant has filed a response in opposition and the issues are fully
briefed.
I.

Background

Plaintiff Prime Aid Pharmacy Corp. is a New Jersey-based specialty
pharmacy. Defendant Express Scripts, Inc., operates as a pharmacy benefits
manager and provides mail order delivery of drugs through its own specialty
pharmacy, Accredo Health Group, Inc. On June 25, 2011, plaintiff entered into a
provider agreement with defendant. Defendant terminated the provider agreement
in August 2014, purportedly because of plaintiff’s handling of seven reimbursement
claims in which patients did not timely pickup medications and a $750 fine plaintiff
paid to the New Jersey State Board of Pharmacy in 2012. Plaintiff alleges that the
true reason for the termination was to eliminate plaintiff as a competitor to
Accredo.

In the complaint plaintiff asserts various claims against the defendant,

including breach of contract and breach of the covenant of good faith and fair
dealing.
On January 31, 2017, defendant produced documents to plaintiff. Counsel for
defendant informed plaintiff that “confidential and sensitive information relating to
other pharmacies’ financial information” had been redacted. [Docs. # 88-1, # 883].1 Plaintiff moves to compel production of the unredacted documents.
II.

Discussion

Under Federal Rule of Civil Procedure 26(b)(1), litigants may obtain
discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be
admissible in evidence to be discoverable.” Id. Relevancy in this context “has been
construed broadly to encompass any matter that bears on, or that reasonably could
lead to other matter that could bear on, any issue that is or may be in the case.” Jo
Ann Howard & Assocs., P.C. v. Cassity, 303 F.R.D. 539, 542 (E.D. Mo. 2014)
(citation and quotation omitted). Despite the broad definition of relevance and the
policy of favoring liberal discovery, district courts are empowered to limit the scope
of allowable discovery if “the discovery sought is unreasonably cumulative or
duplicative, or is obtainable from some other source that is more convenient, less
burdensome, or less expensive.” Fed.R.Civ.P. 26(b)(2)(C).

1

Defendant also redacted documents “relating to potential or active investigations by
governmental authorities.” The Court has separately addressed plaintiff’s efforts to compel
production of documents redacted on this basis. [Doc. # 133].

2

A.

“Fraud, Waste and Abuse Activity Report”2

Shortly before plaintiff filed its motion, defendant produced an unredacted
copy of this document in full. See Doc. # 94-1. Plaintiff’s request to compel
production of this document is moot.
B.

Email Correspondence Regarding Internal Audits3

This document consists of an email request from a nonparty auditor for
information regarding certain pharmacies, including plaintiff. Defendant redacted
the portions relating to the other pharmacies, based on “the existence of ongoing
governmental agency investigations of other pharmacies.” [Doc. # 94 at p.4].
Plaintiff argues that this document is relevant to its claim for breach of the
implied covenant of good faith and fair dealing.

The Court previously ruled that

documents relating to defendant’s decision-making regarding the termination of
other network pharmacies was relevant to that claim. See Doc. # 59 at pp. 4-5.
The Court does not agree with plaintiff that the same reasoning extends to these
documents. Plaintiff’s general assertion that the identities of other pharmacies and
their treatment by defendant is relevant to its claim is overbroad. Plaintiff’s request
to compel production of this document will be denied.
C.

Documents Regarding Medicare Part D Pre-meeting4

In 2014, employees in defendant’s Special Investigations Unit exchanged
emails regarding a meeting of the Medicare Part D working group scheduled for
September 2014. In advance of the meeting, a list of pharmacies to be reviewed at
that meeting was circulated.

2
3
4

The list included plaintiff. Defendant redacted

Identified by the parties as Express Scripts 782_00018128. [Doc. # 90 at pp. 5-56].
Identified by the parties as Express Scripts 782_00008647. [Doc. # 90 at pp. 58-62].
Express Scripts 782_00011729-33; 00172935-39; 00172941-45 [Doc. # 100].

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information regarding other pharmacies. Plaintiff contends that the information
regarding other pharmacies is relevant. For the reasons stated above, the Court
disagrees.
D.

Defendant’s Withholding of Reimbursement Funds5

These documents concern defendant’s decisions regarding withholding of
reimbursement funds for claims submitted by other pharmacies. For the reasons
stated above, the Court finds that these documents are not relevant and plaintiff’s
motion to compel them will be denied.
E.

Return of Prime Aid Funds6

This document consists of an internal email exchange in December 2015.
Plaintiff complains that an attachment entitled “Prime Aid001.pdf” was also
redacted. Defendant counters that the attachment was produced as 782_00015345.
Plaintiff’s motion to compel the attachment is moot.
***
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to defendant to provide
unredacted responses to its first and second sets of requests for production of
documents [Doc. # 87] is denied.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 27th day of July, 2017.
5

Identified by the parties as Express Scripts 782_00014557 [Doc. # 90 at pp. 64-82],
782_00018641 [Doc. # 90 at p. 84], and 782_00008432 [Doc. # 90 at pp. 86-109].
6
Identified by the parties as Express Scripts 782_00015342. [Doc. # 90 at pp. 111-26].

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