City of Huntington, West Virginia v. AmerisourceBergen Drug Corporation et al

Filing 549

DISCOVERY RULING NO. 3A finding that Sean Hammers' 417 Declaration, previously submitted in connection with 366 Discovery Ruling No. 3, fully satisfies the discovery obligations of Plaintiffs and the Cabell County Prosecutor's Office un der DR3 and the CCPO shall not be required to conduct any further search of records as requested by Defendants in regard to this issue. Signed by Special Master Christopher C. Wilkes on 6/10/2020. (cc: counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
THE CITY OF HUNTINGTON,
CIVIL ACTION NO. 3:17-01362

Plaintiff,

Hon. David A. Faber

v.
AMERISOURCEBERGEN
DRUG CORPORATION, et al.,
Defendant.
___________________________________
CABELL COUNTY COMMISSION,

CIVIL ACTION NO. 3:17-01665

Plaintiff,

Hon. David A. Faber

v.
AMERISOURCEBERGEN
DRUG CORPORATION, et al.,
Defendant.

DISCOVERY RULING NO. 3A
The undersigned has received and reviewed the various correspondences and documents
concerning the Cabell County Prosecutor’s Office (“CCPO”) production of documents pursuant to
the Special Master’s ruling in DR3 (Dkt. 366) relating to official or unofficial policies of the CCPO
to combat the opioid crisis, including communications, if any, by the prosecutor. Having carefully
reviewed and considered the parties’ positions, the Special Master now enters the following
discovery ruling concerning the CCPO’s compliance with DR3.
Initially, the Court notes that at the discovery status conference held on May 7, 2020, the
parties discussed procuring a Declaration of the CCPO to satisfy the CCPO’s discovery obligations
under DR3. The Declaration would be to the effect that the CCPO did not possess any specific
documents responsive to DR3. On May 12, 2020, Defendants’ counsel corresponded with counsel
for the CCPO and stated that Defendants accepted Prosecuting Attorney Hammer’s Declaration,

which stated “to his knowledge … no documents responsive to Defendants’ request for
departmental and/or custodial files as ordered by Discovery Ruling, Dkt. 366 (“DR3”), which
involve communications concerning official policies specifically regarding the Opioid Crisis.”
Prosecuting Hammers’ Declaration further stated that “to his knowledge … the Cabell County
Prosecutor’s Office did not have an official or unofficial policy specifically regarding the Opioid
Crisis.”
On May 29, 2020, it was brought to the Special Master’s attention that Defendants were
challenging the accuracy of Prosecutor’s Hammers’ Declaration because the CCPO applied for a
grant from the Department of Justice Innovative Prosecution for Combating Violent Crime and
Illegal Opioids (“Application”) in April of 2018. According to Defendants, the Application
evidences the existence of a policy of the CCPO of prioritizing violent and felony drug crimes
including illegal opioid cases over other crimes. However, closer examination of the Application
reveals that the Application actually states that “case data shows” that the CCPO prioritizes violent
and felony drug crimes over other crimes. Case data implies a retrospective analysis—not existing
policy. Additionally, statements in an Application for grant money that was never awarded to the
effect that the CCPO “tested” innovative prosecution solutions like “Project Huntington” do not
establish an existing policy of the CCPO.
Similarly, the Special Master finds that statements in the Application concerning
prospective programs or processes that might have been be developed if grant money was awarded
do not constitute official or unofficial policies of the CCPO concerning the Opioid crisis.
Accordingly, the fact that the CCPO stated in the Application that it would establish a violent crime
and prosecution task force; develop an action plan; and hire a prosecutor, full time investigator and
project director with the money it would receive does not, by itself, constitute the official or

unofficial policy of the CCPO. At best, these statements merely reflect actions the CCPO may
have taken in the future in the event the grant was approved—but the grant was not awarded.
Based upon the foregoing, the Special Master finds that Sean Hammers’ Declaration,
previously submitted in connection with DR3, fully satisfies the discovery obligations of Plaintiffs
and the CCPO under DR3 and the CCPO shall not be required to conduct any further search of
records as requested by Defendants in regard to this issue.

Christopher C. Wilkes
Special Master
Dated: June 10, 2020