United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiff's motion to
compel defendant's responses to its second set of
requests for production of documents. Defendant has filed a
response in opposition and the issues are fully briefed. In
addition, defendant has filed a motion for a hearing on the
discovery issues. Finally, the Office of the State
Comptroller for the State of New Jersey seeks leave to
intervene in order to oppose plaintiff's efforts to
obtain communications between the Office and defendant. The
State Comptroller's motion will be addressed separately.
The Court will reserve ruling on plaintiff's motion to
compel the production of documents that the State Comptroller
claims are protected from disclosure.
Prime Aid Pharmacy Corp. is a licensed retail and specialty
pharmacy located in New Jersey. Defendant Express Scripts,
Inc., operates as a pharmacy benefits manager and provides
mail order delivery of drugs through its own specialty
pharmacy, Accredo Health Group, Inc. On June 25, 2011,
plaintiff entered into a Provider Agreement with defendant.
Following an audit of plaintiff's records, defendant
terminated plaintiff from its provider network, citing
plaintiff's alleged violations of the Provider Agreement.
The termination became effective on August 22, 2104. As
relevant to the present motion, plaintiff alleges that the
true reason for the termination was the defendant's
desire to eliminate plaintiff as a competitor to Accredo.
January 6, 2017, the Court granted plaintiff's motion to
compel defendant's responses to plaintiff's first set
of requests for production. [Doc. # 59]. On January 20, 2017,
plaintiff filed the instant motion to compel defendant's
responses to 30 additional requests propounded in its second
set of requests for production. Defendant objects, asserting
that the disputed requests are irrelevant and overbroad in
Federal Rule of Civil Procedure 26(b)(1), litigants may
discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case, considering the importance of the issues
at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the
parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). “Information within this
scope of discovery need not be admissible in evidence to be
discoverable.” Id. Relevancy in this context
“has been construed broadly to encompass any matter
that bears on, or that reasonably could lead to other matter
that could bear on, any issue that is or may be in the
case.” Jo Ann Howard & Assocs., P.C.
v. Cassity, 303 F.R.D. 539, 542 (E.D. Mo. 2014)
(citation and quotation omitted). After the proponent of
discovery makes a threshold showing of relevance, the party
opposing a motion to compel has the burden of showing its
objections are valid by providing specific explanations or
factual support as to how each discovery request is improper.
Id. (citing Hofer v. Mack Trucks, Inc., 981
F.2d 377, 380 (8th Cir. 1993), and St. Paul Reinsurance
Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508,
511-12 (N.D. Iowa 2000)). The party must demonstrate to the
court “that the requested documents either do not come
within the broad scope of relevance defined pursuant to Rule
26(b)(1) or else are of such marginal relevance that the
potential harm occasioned by discovery would outweigh the
ordinary presumption in favor of broad disclosure.”
Id. (quoting Burke v. New York City Police
Department, 115 F.R.D. 220, 224 (S.D.N.Y. 1987)).
Efforts to Steer Patients to Accredo
to plaintiff, the following requests seek documents related
to defendant's efforts to steer plaintiff's former
patients to defendant's pharmacy, Accredo, and the
revenue derived from those efforts:
10. Any and all documents relating to Express Scripts
[members] who filled prescriptions at Prime Aid prior to
August 22, 2014.
17. Documents sufficient to identify the identities of
patients transferred to Accredo, that were formerly serviced
by Prime Aid, during the . . . years [2011-2016].
18. Documents sufficient to identify the revenue generated by
Express Scripts and Accredo from patients transferred from
Prime Aid to Accredo.
34. Any and all documents sufficient to identify the type and
amounts of prescriptions authorized to fill by Express
Scripts for patients formerly serviced by Prime Aid after
Prime Aid's termination from the . . . Network.
50. Any and all documents relating to Express Scripts'
efforts to transfer Prime Aid's patients to Accredo to
fill former Prime Aid patients' prescriptions after
August 22, 2014.
The time period for these requests is July 25, 2011 through
[Doc. # 62-1 at p. 6].
contends that these requests are overbroad as to time and has
offered to provide documents relating to each interaction it
had with members that used plaintiff's services “at
or near” the time the provider agreement was
terminated. The Court agrees that the request is overbroad
and will direct defendant to provide documents responsive to
the above requests for all Express Scripts members who filled
prescriptions at Prime Aid during the six-month period
preceding plaintiff's termination from the provider
network through the six-month period after the termination,
i.e., February 22, 2014 through February 22, 2015.
Accredo's Operations in New Jersey
following requests, plaintiff seeks records reflecting
Accredo's participation in the New Jersey specialty
pharmacy market before and after plaintiff was terminated
from the provider network:
20. Documents sufficient to identify the revenue generated by
Accredo for services and prescriptions it provided for
patients in New Jersey for the . . . years [2011-2016].
21. Documents sufficient to identify the types of
prescriptions filled by Accredo for patients in New Jersey
for the . . . years [2011-2016].
32. Documents sufficient to identify the number of patients
residing in New Jersey serviced by Accredo for the . . ...