ABC v. DEF

Filing 190

ORDER with respect to 189 Letter Motion for Discovery. Omnicare is directed to respond to the Government's letter motion (ECF No. 189) by Tuesday, February 21, 2023. Any reply by the Government is due by no later than Friday, February 24, 2023 at 5:00 p.m. The Court will address this issue at the conference scheduled for Tuesday, February 28, 2023 at 2:30 p.m. (Signed by Magistrate Judge Valerie Figueredo on 2/17/2023) (rro)

Case 1:15-cv-04179-CM-VF Document 189 Filed 02/16/23 Page 1 of 4
U.S. Department of Justice
[Type text]
United States Attorney
Southern District of New York
86 Chambers Street
New York, New York 10007

February 16, 2023
By ECF
Hon. Valerie Figueredo
United States Magistrate Judge
Southern District of New York
500 Pearl Street
New York, NY 10007
Re:

2-17-2023

Omnicare is directed to respond to the Government’s letter motion
(ECF No. 189) by Tuesday, February 21, 2023. Any reply by the
Government is due by no later than Friday, February 24, 2023 at
5:00 p.m. The Court will address this issue at the conference
scheduled for Tuesday, February 28, 2023 at 2:30 p.m.

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 precluding Omnicare
from supplying as evidence—on a motion, at a hearing, or at trial—any prescription documentation
for sample dispensations that has not already been produced in discovery. Upon the Government’s
request, Omnicare agreed to produce by January 6, 2023 and January 17, 2023, all prescription
documentation for a sample of more than 100,000 drug dispensations. Although Omnicare
produced some prescription documentation by those deadlines, Omnicare recently indicated that
it did not produce all such documentation within its possession, custody, or control. On February
10, 2023—without notice, and after court-ordered deadlines had passed—Omnicare produced
additional prescription documentation for sample dispensations, without seeking permission from
the Court.
Under Federal Rule of Civil Procedure 37(c)(1), a party that fails to timely produce
information during discovery “is not allowed to use that information . . . to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” See
also Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006). “The purpose of the rule is
to prevent the practice of ‘sandbagging’ an opposing party with new evidence.” Ebewo v. Martinez,
309 F.Supp.2d 600, 607 (S.D.N.Y. 2004). Here, Omnicare was obligated to produce all
prescription documentation for the sample dispensations by court-ordered deadlines intended to
provide the Government’s expert sufficient time to examine and offer opinions as to the validity
of the prescription documentation. Omnicare failed to comply with those deadlines. Omnicare did
not seek an extension, nor has it provided any justification for its decision not to produce all such
documentation within its possession, custody, or control. The Government will be prejudiced by
the delayed production of prescription documentation, all of which must be examined by its
pharmacy expert in order to render an accurate and reliable opinion. The Government requests that
Omnicare be precluded from using or otherwise relying on any responsive prescription
documentation not already produced in this case.
Omnicare’s Obligation To Produce all Prescription Documentation Within its Possession,
Custody, or Control. On May 10, 2021, the Government served Interrogatory 10, requesting that
Omnicare identify the locations of all Drug Authorizations, i.e., prescription documentation, for
drugs dispensed by Omnicare. (Ex. A at 11.) The Government also served RFPs 3 and 4, requesting
that Omnicare produce all “Drug Authorizations” for all relevant “Rollover” dispensations. (Id. at

Case 1:15-cv-04179-CM-VF Document 189 Filed 02/16/23 Page 2 of 4
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13.) The Government instructed Omnicare to “produce all responsive documents and tangible
things which are in Defendant’s possession, custody, or control.” (Id. at 6.) In response to
Interrogatory 10, Omnicare identified at least four locations where Omnicare maintained
prescription documentation. (Ex. B at 22-23.) With respect to RFPs 3 and 4, Omnicare responded
that it would “meet-and-confer with the Government” to discuss “the production of tranches of
documents reflecting Drug Authorizations . . . located after a reasonable search.”1 (Id. at 31-32.)
After meeting and conferring, Omnicare agreed to produce all prescription documentation
for sample dispensations to be identified by the Government. On April 8, 2022, Omnicare
confirmed that “the documents Omnicare intends to produce in response to [RFPs 3 and 4] would
be from the systems or locations identified in response to Interrogatories 10-12.” (Ex. C. at 2.) At
the September 7, 2022, conference before Judge McMahon, Omnicare noted that its search for
responsive prescription documentation would involve “a multistep process that needs to be
written” to capture “the various ways these kinds of documents may be in computer systems,” as
well as searching for “hard copy records” that “are not necessarily computerized.” (Dkt. 127-4 at
38:22 - 39:9.)
Consistent with this, the Court ordered that “[s]upporting documentation reflecting
prescriber authorizations for the identified sample dispensations from the OMNI DX system shall
be produced” by December 2, 2022, and that “prescriber authorizations” for the Oasis sample be
produced by January 6, 2023. (Dkt. 121 at 2.) The deadline for “Defendants to produce prescription
documentation for [the] OmniDX sample” was later extended to January 17, 2023. (Dkt. 167.)
Omnicare sought no further extensions. Thus, the Government understood that Omnicare would
produce all prescription documentation for the sample dispensations that were within Omnicare’s
possession, custody, or control by the January 6 and January 17, 2023 deadlines.
Omnicare’s Unilateral Decision To Limit its January 2023 Productions to Prescription
Documentation in Two Locations. In an email dated January 13, 2023, Omnicare represented that
it was “producing all documents in its document imaging system that are associated with the
patients identified by the government as part of its samples. In addition, Omnicare is producing
data reflecting electronic prescriptions related to those same patients.” (Ex. D at 1.) On January 6,
13, and 17, 2023, Omnicare made productions of prescription documentation responsive to the
Government’s requests.
On January 18, 2023, the Government asked Omnicare to confirm by January 20, 2023,
that, “in response to RFPs 3 and 4, Omnicare is producing all Drug Authorizations relevant to the
sample dispensations that are in Omnicare’s possession, custody, or control.” (Ex. E at 5.) More
than a week later, on January 27, Omnicare responded that “the documents Omnicare has produced
in response to those RFPs are from Omnicare’s document-imaging system and its e-prescription
data,” but said nothing about withholding responsive documents within its possession, custody, or
control. (Id. at 4.) After further prodding, on February 10, 2023, Omnicare stated that it “cannot
rule out . . . that some additional non-duplicative responsive documents exist, most likely in hard
copy.” (Id. at 2-3.) That same date, Omnicare produced 13 pages of additional prescription
documentation for sample Oasis dispensations. (Id.)
1

Omnicare has not claimed that it would be unduly burdensome to search for prescription
documentation for the sample dispensations in the locations Omnicare identified as being within
its possession, custody, or control.

Case 1:15-cv-04179-CM-VF Document 189 Filed 02/16/23 Page 3 of 4
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Omnicare’s Failure To Produce Prescription Documentation for Sample Dispensations Is
Prejudicial to the Government. The Government has alleged that Omnicare has systems in place
allowing its pharmacies to dispense drugs without valid prescriptions. In particular, the
Government alleges that Omnicare failed to obtain current prescriptions after old ones expired.
And in discovery, the Government requested prescription documentation for a sample of
approximately 100,000 dispensations to offer an expert opinion on the frequency with which
Omnicare dispensed drugs without valid prescriptions. As part of that analysis, the Government’s
expert will note all drug dispensations that are not supported by any valid current prescription.
This labor-intensive, time-consuming examination of Omnicare’s dispensing requires
review of a complete set of prescription documentation in Omnicare’s possession, custody, or
control. Omnicare cannot disregard court-ordered deadlines for the production of prescription
documentation, belatedly producing additional pages of prescription documentation, while
insisting that the Government’s expert discovery deadlines remain unchanged. Permitting such
delay tactics will unfairly prejudice the Government’s ability to prepare its case-in-chief.
Omnicare’s Unilateral Decision To Limit its Production of Prescription Documentation Is
Unjustified. For over a year, Omnicare has known that responsive prescription documentation may
be found in various locations within its possession, custody, or control. But until February 10,
2023, Omnicare failed to disclose that it had decided to produce responsive documents from only
two of those locations. Omnicare did not consult the Government before making that decision. It
did not ask the Government to agree to such a limited production. The Government did not agree
to such a limited production.2 Indeed, Omnicare has not even sought to justify its decision to limit
its production in any of its correspondence with the Government. (See Ex. E.)
In light of this, the Government requests an order precluding Omnicare from supplying as
evidence on a motion, at a hearing, or at a trial any prescription documentation for sample
dispensations identified by the Government that has not already been produced in discovery. To
the extent Omnicare is granted an extension of time to produce additional prescription
documentation, the Government requests a corresponding extension of time to allow the
Government’s experts the opportunity to review and incorporate the delayed information into their
expert analyses.3

2

Omnicare points out that on January 4, 2023, in the course of discussions regarding
various issues, Omnicare told the Government that it would produce prescription documentation
from Omnicare’s document imaging system and e-prescription data. (Ex. E at 1-4.) That is
irrelevant. At that time, Omnicare did not represent that it would withhold responsive documents.
Nor did Omnicare ask the Government to agree to Omnicare’s withholding of responsive
documents. In fact, the Government understood that Omnicare would comply with its obligation
to produce all responsive documents within its possession, custody, or control. (See Exs. D at 3, E
at 5; Dkt. 173 n.1).
3

Although Omnicare’s February 10, 2023 production of prescription documentation was
made after the deadline, the Government is not seeking exclusion of those documents. The
Government’s principal concern is that Omnicare cannot continue to disregard court-ordered
deadlines for the production of prescription documentation.

Case 1:15-cv-04179-CM-VF Document 189 Filed 02/16/23 Page 4 of 4
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We thank the Court for its consideration of this request.
Respectfully submitted,
DAMIAN WILLIAMS
United States Attorney
By:

cc: All counsel by ECF

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