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

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

July 24, 2017




         This 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.

         I. Background

         Plaintiff 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.

         On 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 without success.

         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). 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).

         A party 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)).

         A. Accredo's Interactions with Government Entities

         Plaintiff 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 ...

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