ABC v. DEF

Filing 121

SCHEDULING ORDER granting 113 Motion re: 113 MOTION Entry of Scheduling Order ., 119 LETTER MOTION for Discovery requesting referral to Magistrate Judge for imposition of interim discovery deadlines addressed to Judge Colleen McMahon from Monica P. Folch dated September 7, 2022. ; terminating 119 Letter Motion for Discovery. The parties must identify 30(b)(6) witnesses by October 7. 30(b)(6) depositions must be completed by November 18. The Governmen t must identify the equivalent of 30(b)(6) witnesses representing the agencies designated by Defendants by October 7. Those depositions must be completed by December 9. ALL DISPUTES RELATING TO OUTSTANDING DISCOVERY REQUESTS, INCLUDING BUT NOT LIMIT ED TO DISAGREEMENTS OVER SEARCH TERMS, MUST BE RESOLVED BY THE PARTIES BY SEPTEMBER 14 OR SUBMITTED IN WRITING TO MAGISTRATE JUDGE FIGUEREDO BY SEPTEMBER 20. The parties are limited to 20 depositions aside from expert and 30(b)(6) depositions. They s hould begin as soon as possible and must be completed by April 30, 2023. The absolute fixed deadline for the conclusion of all discovery, fact and expert, is June 30, 2023. I will set a schedule for the inevitable summary judgment motions early next year. The clerk of the court is directed to close the open motions at Docket Numbers 113 and 119.. (Signed by Judge Colleen McMahon on 9/8/2022) (kv)

Case 1:15-cv-04179-CM Document 121 Filed 09/08/22 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
9/8/2022

UNITED STATES OF AMERICA, et al. ex rel. URI
BASSAN,
Plaintiffs,
v.
No. 1:15-cv-04179
OMNICARE, INC.,
Defendant.

UNITED STATES OF AMERICA,
Plaintiff,
v.
OMNICARE, INC. and CVS HEALTH CORP.,
Defendants.

SCHEDULING ORDER
McMahon, J.:
After a long discovery conference, begun over the phone on September 6 and continued in
person on September 7, I offer the parties the following guidance regarding discovery.
1. Discovery relating to the OMNI DX and OASIS systems:
The parties have advised the court that they have agreed to parameters for the
dispensing data to be produced from the OMNI DX and OASIS systems. The data to be produced
from the OMNI DX system must be produced on a rolling basis, with production to be complete no
later than October 28. The data to be produced from the OASIS system must also be produced on
a rolling basis, with production to be complete no later than November 23.
The statistician expert must complete the process of drawing the sample from the
OMNI data by November 18 and must complete the process of drawing the sample from the OASIS
data by December 16.

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Supporting documentation reflecting prescriber authorizations for the identified sample
dispensations from the OMNI DX system shall be produced on a rolling basis and must be complete
no later than December 2. Supporting documentation reflecting prescriber authorizations for the
identified sample dispensations from the OASIS system shall proceed on a rolling basis and must
be complete by January 6, 2023.
2. Fed. R. Civ. P. 30(b)(6) Depositions:
The parties must identify 30(b)(6) witnesses by October 7. 30(b)(6) depositions must
be completed by November 18.
The Government must identify the equivalent of 30(b)(6) witnesses representing the
agencies designated by Defendants by October 7. Those depositions must be completed by
December 9.
3. Interrogatories
The court is advised that there are only a few interrogatory issues outstanding. Any
disputes not resolved by September 14 concerning outstanding interrogatories must be taken to
Magistrate Judge Figueredo immediately for resolution. All responses to outstanding
interrogatories must be completed by October 7. Judge Figueredo must give permission before
additional interrogatories may be served. The parties have had plenty of time to exchange such
requests.
4.

Experts

The Government must designate its experts no later than October 14. Expert report
from the Government’s statistical expert must be produced no later than January 6, 2023. Expert
report from the Government’s pharmaceutical expert must be produced no later than January 31,
2023. The depositions of those experts must be taken within 30 days after production of their
reports. All other expert reports (geriatrician, pharmacy operations) must be produced by
December 14, with depositions of those expert taken within 30 days after the production of their
reports.
Defendants must designate their experts no later than November 11. The expert
report from the Defendants’ statistical expert must be produced no later than February 3, 2023.
The expert report from Defendants’ pharmaceutical expert must be produced no later than
February 28. The depositions of those experts must be taken within 30 days after production of
their reports. All other expert reports must be produced by January 20, 2023, with depositions of
those experts to be taken within 30 days after production of their reports.
Rebuttal reports from experts are due ten days after the deposition of the opposing
expert. There will not be any rebuttal depositions.

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5. Outstanding Document Requests
Defendants will produce “communications” responsive to the Government’s
outstanding document requests and electronically stored information relating to the operations,
practices and procedures of a subset of Omnicare’s pharmacies on a rolling basis, to be completed
no later than January 20, 2023. They will produce responses to all other Government discovery
requests on a rolling basis beginning no later than October 7 and ending no later than December
5. The Government is limited to 30 ESI pharmacy custodians.
The Government must produce responses to the Defendants’ outstanding discovery
requests on the same schedule – October 5 to December 7.
ALL DISPUTES RELATING TO OUTSTANDING DISCOVERY REQUESTS,
INCLUDING BUT NOT LIMITED TO DISAGREEMENTS OVER SEARCH TERMS, MUST
BE RESOLVED BY THE PARTIES BY SEPTEMBER 14 OR SUBMITTED IN WRITING TO
MAGISTRATE JUDGE FIGUEREDO BY SEPTEMBER 20.
6. Depositions Other than 30(b)(6) and Expert Depositions
The parties are limited to 20 depositions aside from expert and 30(b)(6) depositions.
They should begin as soon as possible and must be completed by April 30, 2023.
7. Additional Discovery Not Contemplated By This Order
If any party believes there is a need for discovery aside from that contemplated by this
order, that party should make a highly specific request for permission to take the same to
Magistrate Judge Figueredo. She has been advised to grant such requests sparingly and only on a
showing of true need.
Judge Figueredo is likely to order the parties to attend a monthly conference to resolve
discovery disputes. The parties should be prepared to tee up issues in letters sent prior to any such
conference, so that all outstanding issues can be discussed and resolved at the next such
conference. She is free to alter “internal” deadlines but the only way that she can alter the discovery
deadline is if the parties consent to refer the case to her for all purposes.
8. Discovery Deadline
The absolute fixed deadline for the conclusion of all discovery, fact and expert, is June
30, 2023. The extra three months gives the parties some wiggle room in case disputes cause delays
(which I sincerely hope will not happen). They are not intended to prolong an already overly-long
discovery process. This date is not going to be extended, so the parties should find ways to devote
sufficient resources to this matter so that you meet the deadline. I remind you that this case was
filed in 2015; the Government conducted an investigation lasting four years before deciding to
take over prosecution of the case, during which time it received a great deal of relevant
information; the motion to dismiss was decided in March 2021, a year and a half ago; and no effort

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Case 1:15-cv-04179-CM Document 121 Filed 09/08/22 Page 4 of 4

was made to involve the court in resolving disputes until August 2022. The year and a half since
the decision on the motion to dismiss should be counted against the time available for discovery.
I will set a schedule for the inevitable summary judgment motions early next year.
The clerk of the court is directed to close the open motions at Docket Numbers 113
and 119.
Dated: September 8, 2022

____________________________________
U.S.D.J.

BY ECF TO ALL COUNSEL

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