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Prime Aid Pharmacy Corp. v. Express Scripts, Inc.

United States District Court, E.D. Missouri, Eastern Division

July 10, 2017

PRIME AID PHARMACY CORP., Plaintiff,
v.
EXPRESS SCRIPTS, INC., Defendant.

          MEMORANDUM AND ORDER

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE

         This 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.

         I. Background

         Plaintiff 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.

         On 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 scope.

         II. Discussion

         Under Federal Rule of Civil Procedure 26(b)(1), litigants may obtain

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)).

         A. Efforts to Steer Patients to Accredo

         According 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 the present.

[Doc. # 62-1 at p. 6].

         Defendant 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.

         B. Accredo's Operations in New Jersey

         In the 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 . . ...

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