ABC v. DEF

Filing 352

ORDER: The Government is directed to provide a response to Omnicare's argument that the use alleged here is sufficient to constitute affirmative use of the withheld work-product material for purposes of supporting a waiver under Federal Rule of Evidence 502(a), particularly in light of the decision in In re Commodity Exchange. The Government is directed to file a letter by no later than October 17, 2023. (Signed by Magistrate Judge Valerie Figueredo on 10/3/2023) (rro)

Case 1:15-cv-04179-CM-VF Document 352 Filed 10/03/23 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA, et al. ex rel. URI
BASSAN,
Plaintiffs,

10/3/2023

15-CV-04179 (CM) (VF)
ORDER

-againstOMNICARE, INC.,
Defendant.
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UNITED STATES OF AMERICA,
Plaintiff,
-againstOMNICARE, INC. and CVS HEALTH
CORP.,
Defendants.
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VALERIE FIGUEREDO, United States Magistrate Judge:
On September 20, 2023, Omnicare filed a reply letter brief, in further support of its
motion to compel the production of certain withheld witness interview summaries. See ECF No.
344. Omnicare sought the withheld witness summaries on the basis that the Government’s
disclosure of some of the summaries to its expert effectuated a waiver as to the undisclosed
summaries under Federal Rule of Evidence 502(a). After the Government’s expert disclaimed
use of the witness summaries to prepare his report, Omnicare raised a different basis for the
Government’s “use” of the privileged materials. Specifically, Omnicare pointed to allegations in
the complaint and argued that the factual allegations were supported by the witness summaries,

Case 1:15-cv-04179-CM-VF Document 352 Filed 10/03/23 Page 2 of 3
only some of which had been produced by the Government. Id. The Government did not have an
opportunity to respond to this argument in writing, because the argument was not previously
raised by Omnicare in its opening letter brief and the reply letter brief was submitted on the eve
of a conference held on September 21, 2023, at which the dispute was addressed. See ECF No.
324.
At the September 21 conference, Omnicare relied on a decision of this Court, In re
Commodity Exchange, Inc., 2019 WL 13046984 (S.D.N.Y. Feb. 25, 2019), to argue that the
reference to witness statements in the complaint by the Government here was sufficient
affirmative use to support a subject-matter waiver. See ECF No. 348 (“Tr.”) at 9-10, 15-16, 2021, 23. In In re Commodity Exchange, the defendants sought disclosure of statistical analyses
and documents generated by plaintiffs’ consultants, whose work was partially referenced in the
complaint. See 2019 WL 13046984, at * 1. The Court held that the work-product protection was
waived as to the materials not specifically referenced in the complaint. The Court reasoned that
the “withholding of information that would tend to undermine key statistical conclusions alleged
in the complaint” constituted a selective disclosure that would benefit the plaintiffs and prejudice
the defendants, because the plaintiffs’ “statistical presentation was central to the Court’s decision
that Plaintiffs have plausibly alleged Defendants’ participation in price manipulation and an
antitrust conspiracy.” Id. at *3. Here, a review of the Court’s decision on Omnicare’s motion to
dismiss indicates that at various points, the Court relied on (or, at a minimum, cited to) some of
the factual allegations that Omnicare contends would be supported by the privileged witness
interview summaries. See, e.g., ECF No. 89 at 8-9, 21.

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Case 1:15-cv-04179-CM-VF Document 352 Filed 10/03/23 Page 3 of 3
The Government is directed to provide a response to Omnicare’s argument that the use
alleged here is sufficient to constitute affirmative use of the withheld work-product material for
purposes of supporting a waiver under Federal Rule of Evidence 502(a), particularly in light of
the decision in In re Commodity Exchange. The Government is directed to file a letter by no later
than October 17, 2023.
SO ORDERED.
DATED:

New York, New York
October 3, 2023
___________________________
VALERIE FIGUEREDO
United States Magistrate Judge

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