ABC v. DEF

Filing 370

ORDER terminating 366 Letter Motion to Compel. During a conference on September 11, 2023, the Court issued a ruling on Omnicare's motion to compel documents withheld by the Government pursuant to the deliberate process privilege (see ECF Nos. 239, 243). See ECF No. 336. As to documents relating to the PDE validation audits, the Court concluded that Omnicare had overcome the privilege by showing a compelling need for those documents. As to a subset of documents-specifically, do cuments falling within paragraph 16 of the declaration of Cheri Rice-the Court asked for additional documents and information before it ruled on whether the documents were privileged. Following the conference on September 11, the Government submit ted those documents and at a conference on September 21, 2023, the Court ordered the Government to produce "a subset of those [documents] that pertain to the PDE audit validation process," out of the 220 documents encompassed by paragr aph 16 of the Rice declaration. See ECF No. 348 at 84. The basis for the Court's ruling, in accordance with Omnicare's arguments, was that such documents might reveal the extent to which the Government had actual knowledge of certain pra ctices yet routinely paid claims despite such practices. In other words, the Government's practice of accepting or declining certain prescription documentation was relevant to Omnicare's materiality defense. See ECF No. 336 at 28-31; EC F No. 348 at 86. Omnicare argues that it has a compelling need for documents relating to the RAC audit, over which the Government has asserted the deliberative process privilege. See ECF No. 366. The RAC audit was a type of audit of long-term car e sponsors that the Government considered but never undertook. As to these documents, Omnicare has not shown a compelling need, as required to overcome the Government's assertion of the privilege. The PDE validation audit undertaken by the G overnment examined the same underlying prescription documentation and state law requirements that would have been examined had the RAC audit been conducted. If the Government had actual knowledge that long-term care sponsors were not adhering to st ate-law prescription documentation requirements, that information would be available to Omnicare from the documents it has obtained from the Government related to the PDE validation audit. Lastly, the Government's claw back of the inadvertently produced privileged document was proper. SO ORDERED. (Signed by Magistrate Judge Valerie Figueredo on 10/25/2023) (vfr)

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

10/25/2023

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:
During a conference on September 11, 2023, the Court issued a ruling on Omnicare’s
motion to compel documents withheld by the Government pursuant to the deliberate process
privilege (see ECF Nos. 239, 243). See ECF No. 336. As to documents relating to the PDE
validation audits, the Court concluded that Omnicare had overcome the privilege by showing a
compelling need for those documents. As to a subset of documents—specifically, documents
falling within paragraph 16 of the declaration of Cheri Rice—the Court asked for additional
documents and information before it ruled on whether the documents were privileged. Following
the conference on September 11, the Government submitted those documents and at a conference

on September 21, 2023, the Court ordered the Government to produce “a subset of those
[documents] that pertain to the PDE audit validation process,” out of the 220 documents
encompassed by paragraph 16 of the Rice declaration. See ECF No. 348 at 84. The basis for the
Court’s ruling, in accordance with Omnicare’s arguments, was that such documents might reveal
the extent to which the Government had actual knowledge of certain practices yet routinely paid
claims despite such practices. In other words, the Government’s practice of accepting or
declining certain prescription documentation was relevant to Omnicare’s materiality defense. See
ECF No. 336 at 28-31; ECF No. 348 at 86.
Omnicare argues that it has a compelling need for documents relating to the RAC audit,
over which the Government has asserted the deliberative process privilege. See ECF No. 366.
The RAC audit was a type of audit of long-term care sponsors that the Government considered
but never undertook. As to these documents, Omnicare has not shown a compelling need, as
required to overcome the Government’s assertion of the privilege. The PDE validation audit
undertaken by the Government examined the same underlying prescription documentation and
state law requirements that would have been examined had the RAC audit been conducted. If the
Government had actual knowledge that long-term care sponsors were not adhering to state-law
prescription documentation requirements, that information would be available to Omnicare from
the documents it has obtained from the Government related to the PDE validation audit.
Lastly, the Government’s claw back of the inadvertently produced privileged document
was proper.
SO ORDERED.
DATED:

New York, New York
October 25, 2023
___________________________
VALERIE FIGUEREDO
United States Magistrate Judge
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