ABC v. DEF

Filing 185

ORDER granting 184 Letter Motion to Compel. A discovery conference is hereby scheduled for Wednesday, February 8, 2023 at 3:00 p.m. Counsel for the parties are directed to call Judge Figueredo's AT&T conference line at the scheduled time . Please dial [phone]; access code 9781335. Any response to the Government's letter motion to compel (ECF No. 184) is due by no later than Monday, February 6, 2023 at 5:00 p.m. (Signed by Magistrate Judge Valerie Figueredo on 2/3/2023) (ate)

Case 1:15-cv-04179-CM-VF Document 184 Filed 02/02/23 Page 1 of 3
U.S. Department of Justice
[Type text]
United States Attorney
Southern District of New York
86 Chambers Street
New York, New York 10007

February 2, 2023
By ECF
Hon. Valerie Figueredo
United States Magistrate Judge
Southern District of New York
500 Pearl Street
New York, NY 10007
Re:

United States ex rel. Bassan et al. v. Omnicare, Inc. & CVS Health Corp.,
15 Civ. 4179 (CM) (VF)

Dear Judge Figueredo:
We write respectfully on behalf of the United States to seek an order compelling Omnicare
to produce information that will allow the Government to correlate the patients and dispensations
in the claims data Omnicare produced on January 20, 2023, to the patients and dispensations in the
dispensing data that Omnicare produced at the end of last year. As produced, the claims data does
not include identifying information that would allow the Government to reliably match the data
for specific payment claims with the corresponding drug dispensations in the dispensing data.1 In
particular, the claims data does not include information such as patient names, addresses, or social
security numbers that could be used to identify particular patients. As a result, the Government has
been unable to reliably identify the claims data associated with the 900 patients the Government
has identified as its sample for examination by the Government’s pharmacy expert.
As discussed in the Government’s January 11, 2023 letter to the Court, the claims data is
essential to the Government’s case. (See Dkt. 173.) In particular, the Government has requested,
and Omnicare has agreed to produce, claims data for a sample of approximately 100,000
dispensations to 900 individuals, which the Government’s pharmacist expert will examine in order
to offer an opinion on the frequency with which Omnicare dispensed drugs without valid
authorization. Specifically, the claims data is critical to identifying prescriptions within the more
than 100,000 pages of prescription documentation Omnicare produced and determining whether
information about the dispensations was accurately reported when Omnicare sought payment from
the Government. The Government’s expert cannot do this without being able to match the claims
data to the corresponding dispensations made to the 900 sample patients.

1

The dispensing data Omnicare produced in October, November, and December 2022, identifies
the universe of relevant dispensations in this case and contains information from Omnicare’s
computer dispensing systems about each dispensation and about the patient to whom the
dispensation was made. The claims data contains Omnicare’s representations to Government
payors regarding the same dispensations, and the prescriptions that purportedly authorized them,
including a unique identifier for every prescription, the date of the prescription, the number of
times the prescription was filled, and the manner in which a prescription was transmitted to the
pharmacy.

Case 1:15-cv-04179-CM-VF Document 184 Filed 02/02/23 Page 2 of 3
Page 2
As the Court is aware, Omnicare was originally obligated to produce the claims data on
December 14, 2022. (Dkt. 152.) However, after Omnicare failed to produce complete and accurate
dispensing data identifying the relevant universe of patients and dispensations in this case,
Omnicare sought and received an extension of its deadline to produce the correlating claims data
for the same universe of patients and dispensations. The deadline was extended until January 9,
2023. (Dkt. 167.) On the January 9 deadline, Omnicare sought a second extension to produce
“claims data regarding medication dispenses contained in dispensing data,” on the ground that
Omnicare “discovered that the logic that was used to match prescriptions from the dispensing data
to the corresponding claims data missed certain claims that should have been included.” (Dkt.
171.) The claims data Omnicare ultimately produced on January 20, 2023 included more than 92
million rows of data. However, it did not include information that would allow the Government to
reliably or consistently “match” the more than 92 million rows in the claims data to the
approximately 65 million rows of dispensing data previously produced by Omnicare.
The Government has asked Omnicare to provide information to enable it to correlate the
claims data to the patients and dispensations in the Omnicare dispensing data. However, Omnicare
has declined to provide this information. On January 26, 2023, the Government informed
Omnicare that it had “encountered significant problems” with the claims data, asked several
questions about that data, and requested to meet and confer to discuss the issues. (Ex. A at 5-6.) In
response, Omnicare provided vague, unhelpful answers to a subset of the questions asked, and
ignored multiple requests to meet and confer. (Id. at 4-6.) The Government then pointedly
requested that Omnicare provide “information enabling the Government to clearly identify which
lines in the claims data correspond to the 900 sample patients.” (Id. at 2-3.) Omnicare refused. (Id.
at 1-2.)
Omnicare appears to claim that it is under no obligation to provide the requested
information. (Ex. A at 1-3.) Omnicare is wrong. Omnicare must provide information to correlate
the claims data with specific patients and dispensations because without it, the claims data is
deficient. Omnicare agreed to provide claims data for the relevant universe of dispensations at
issue in this case, which universe was determined by reference to the dispensing data. Without
information allowing the Government to correlate the two datasets and identify the relevant
patients and dispensations within the claims data, Omnicare’s production is plainly incomplete.2
Significantly, Omnicare has not claimed that it would be burdensome to provide the information.
Omnicare’s consistent failures to provide complete and accurate data have already caused
significant delays in the Government’s ability to conduct its expert analyses. (See Dkt. 173.) These
delays are compounded by Omnicare’s refusals to meet and confer with the Government to discuss
problems with its data.

2

Omnicare argues that Federal Rule of Civil Procedure “34 does not require Omnicare to create a
new document that does not exist.” (Ex. A at 1.) But that is irrelevant. Omnicare has already
undertaken to respond to the Government’s request for production of claims data by creating a
document that did not previously exist, using “logic” to “match prescriptions from the dispensing
data to the corresponding claims data.” (Dkt. 171.) Thus, Omnicare has already undertaken to
create a document to respond to the request. It just decided to omit essential identifying information
from that document before producing it to the Government.

Case 1:15-cv-04179-CM-VF Document 184 Filed 02/02/23 Page 3 of 3
Page 3
The Government requests an order compelling Omnicare to immediately produce
information that will allow the Government to correlate the patients and dispensations in the claims
data Omnicare produced on January 20, 2023, to the patients and dispensations in the dispensing
data that Omnicare produced at the end of last year. And because Omnicare’s failure to provide
this information has the direct effect of delaying the Government expert pharmacist’s analysis of
the claims data, the Government further requests that its deadline to produce the expert reports of
its pharmacy and statistical experts be extended by the same number of days Omnicare has failed
to produce this essential identifying information (e.g., from January 20, 2023 until the date that
the requested information is provided).
We thank the Court for its consideration of this request.
Respectfully submitted,
DAMIAN WILLIAMS
United States Attorney
By:

/s/ Mónica Folch
MÓNICA P. FOLCH
JENNIFER JUDE
SAMUEL DOLINGER
LUCAS ISSACHAROFF
STEPHEN CHA KIM
Assistant United States Attorneys
[phone]

cc: All counsel by ECF

2-3-2023
A discovery conference is hereby scheduled for
Wednesday, February 8, 2023 at 3:00 p.m. Counsel
for the parties are directed to call Judge Figueredo’s
AT&T conference line at the scheduled time. Please
dial [phone]; access code 9781335. Any
response to the Government's letter motion to compel
(ECF No. 184) is due by no later than Monday,
February 6, 2023 at 5:00 p.m.