United States District Court, E.D. Missouri, Eastern Division
HM COMPOUNDING SERVICES, LLC, and HMX SERVICES, LLC, Plaintiffs,
EXPRESS SCRIPTS, INC., Defendant.
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs' fully briefed
Motion to Compel Production and/or in Camera Review of
Documents on Express Scripts' Privilege Log (Doc. No.
361). The Court held a hearing on the motion on July 11,
2017. At issue is a privilege log produced by Express Scripts
on June 10, 2016. The privilege log numbers 798 pages and
lists some 7, 000 documents withheld from production to
Plaintiffs on the basis of attorney-client privilege and the
work product doctrine. (Doc. No. 361-1). Plaintiffs contend
that Express Scripts has asserted privileges that are either
presumptively invalid or so vague that they are unable to
determine their validity. Given the scope and extent of the
discovery disputes in this case, and after giving the parties
every opportunity to limit those disputes, the Court has
determined it necessary to appoint a Special Master in this
case to resolve the parties' outstanding discovery
issues, including, but not limited to, the manner and method
of completing an in camera review of the documents
on Express Scripts' privilege log.
to Federal Rule of Civil Procedure 53(b)(1), the Court gave
the parties notice and opportunity to file any objections or
suggestions with regard to the appointment of a Special
Master (Doc. No. 380). On July 20, 2017, Plaintiffs filed a
Status Report of Discovery Issues stating they had no
objection to the Court's intention to appoint a Special
Master (Doc. No. 382). On July 21, 2017, Defendant filed its
Status Report on Discovery Issues, requesting additional time
to provide Plaintiffs with a supplemental privilege log prior
to requesting appointment of a Special Master (Doc. No. 383).
Each party has since submitted a list of suggested candidates
for Special Master for the Court's consideration (Doc.
Nos. 384, 387). Stephen N. Limbaugh, Sr. of the firm
Armstrong Teasdale, is on both parties' lists. On August
11, 2017, the Court held a conference call with counsel.
Neither side expressed any concern or opposition to Judge
Limbaugh's appointment should the Court determine that
appointment of a Special Master was necessary and
consideration, the Court has asked Stephen N. Limbaugh, Sr.,
to take the assignment of Special Master in this case. Judge
Limbaugh has provided the Court with the affidavit required
by Federal Rule of Civil Procedure 53(b)(3)(A), stating that
there are no grounds for his disqualification as Special
Master under 28 U.S.C. § 455 (Doc. No. 389).
IT IS HEREBY ORDERED that Stephen N.
Limbaugh, Sr., is appointed as Special Master to resolve the
parties' outstanding discovery issues, including, but not
limited to, the manner and method of completing an in
camera review of the documents on Express Scripts'
Limbaugh shall proceed with all reasonable diligence in his
position as Special Master. In the execution of this
reference, the Special Master shall possess and may exercise,
to the extent permitted by law, Federal Rule of Civil
Procedure 53, and the United States Constitution, all powers
to make such orders as may be necessary and appropriate to
fulfill the duties assigned to the Special Master under this
Memorandum and Order, subject to review by the Court. The
Special Master shall also have the broad authority to avail
himself of all necessary and appropriate support services,
including associates in his firm.
Special Master shall meet with the parties to confer on an
acceptable process and procedure for reviewing the documents
on Express Scripts' privilege log, including the review
of a subset of documents (e.g., 25, 50, 75, or another
parties and their counsel shall provide the Special Master
with their full cooperation, including making available to
the Special Master any files, databases, documents or
pleadings necessary to fulfill his function.
Special Master may communicate ex parte with the
Court on any matter. He may communicate ex parte
with the parties to discuss the merits of a particular
dispute, for the purpose of resolving that dispute, but only
with the prior permission of the opposing counsel involved.
Special Master shall report to the Court on all matters
within his jurisdiction within sixty (60)
days of the date of this Memorandum and Order
or upon such other schedule as the Special Master requires
and serve a copy of his report on each party consistent with
party may object to any order or report issued by the Special
Master by filing a written objection with the Court within
seven (7) days of the issuance of such order or report. Any
response to such objection must be in writing and filed
within seven (7) days of the filing of the objection. The
report of the Special Master will be reviewed by the Court
consistent with Fed.R.Civ.P. 53. Failure to file a timely
objection may waive the right to object.
referral to the Special Master is limited to the duties
specified herein unless the Court shall expand the duties.
This reference shall terminate upon the submission by the
Special Master of his Final Report, unless extended by
further order of the Court.
Special Master shall bill for his services herein at his
regular hourly rate as well as the regular hourly rate of his
associates and support staff.
the extensive scope of the discovery disputes and the time
required to address them, the Court has determined it
necessary to order each side to deposit into the Registry of
the Court, within ten (10) days of the date of
this Order, the sum of $25,
000.00 as and for compensation for the fees and
other costs incurred by the Special Master in connection with
this reference. At the conclusion of this reference, any
funds remaining will be returned to the respective ...