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 compliance with a subpoena duces tecum. Non-party
Accredo Health Group, Inc. has filed a response in opposition
in which it requests an award of attorneys' fees. All
issues are fully briefed.
Prime Aid Pharmacy Corp. is a New Jersey-based specialty
pharmacy. 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. On August 22, 2014,
defendant terminated plaintiff from its provider network,
citing plaintiff's alleged violations of the provider
agreement. Plaintiff alleges that defendant actually
terminated the agreement in order to eliminate plaintiff as a
competitor to Accredo. In this action, plaintiff asserts
claims of fraudulent misrepresentation; breach of contract;
breach of covenant of good faith and fair dealing; violation
of the Missouri Prompt Pay Act; unjust enrichment; promissory
estoppel; and equitable accounting. Defendant asserts
counterclaims for breach of contract and unjust enrichment.
December 14, 2016, plaintiff served a subpoena duces tecum on
Accredo, propounding 21 requests for documents. On January
10, 2017, Accredo objected to all 21 requests. Counsel for
plaintiff and Accredo attempted to resolve their disagreement
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.
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). Despite the broad
definition of relevance and the policy of favoring liberal
discovery, district courts are empowered to limit the scope
of allowable discovery if “the discovery sought is
unreasonably cumulative or duplicative, or is obtainable from
some other source that is more convenient, less burdensome,
or less expensive.” Fed.R.Civ.P. 26(b)(2)(C).
serving a subpoena “must take reasonable steps to avoid
imposing undue burden or expense on a person subject to the
subpoena.” Fed.R.Civ.P. 45(d).Courts are particularly
mindful of Rule 45's undue burden and expense
limitations. Wells v. Lamplight Farms Inc., 298
F.R.D. 428, 433 (N.D. Iowa 2014) (citing Miscellaneous
Docket Matter No. 1 v. Miscellaneous Docket Matter No.
2, 197 F.3d 922, 927 (8th Cir. 1999)). And, if discovery
can easily be obtained from a party, it may be inappropriate
to demand the same discovery from a nonparty. Id.
(citing American Broadcasting Co. v. Aereo, Inc.,
No. 13-MC-0059, 2013 WL 5276124, at *6 (N.D. Iowa Sept. 17,
2013); Precourt v. Fairbank Reconstruction Corp.,
280 F.R.D. 462, 467 (D.S.D. 2011)).
Accredo's Interactions with Government Entities
seeks documents relating to state and federal investigations
into Express Scripts:
16. Any and all non-privileged documents related to subpoenas
Accredo has received from state or federal agencies
including, but not limited to, agencies' offices of
inspectors general, licensing boards, or prosecutors (not
including Grand Jury subpoenas).
17. Any and all documents relating to non-privileged
communications between Accredo and state or federal
prosecutors, agencies, or licensing boards.
18. Any and all documents reflecting fines paid by Accredo to
State Boards of Pharmacies, Federal or State Attorneys
General and/or the Department of Justice, or other licensing
boards or agencies, in response to State Boards of Pharmacy
audits or investigations by any authorities.
21. Any and all non-privileged communications between Express
Scripts and Accredo relating to penalties imposed by any
state or ...