Bailey v. Rite Aid Corporation
- Yvonne Rogers
- 4:18-cv-06926
- U.S. District Court · Northern District of California
- 4
In Bailey v. Rite Aid, Judge Rogers granted in part and denied in part a discovery dispute, ordering limited production about a study cited in Bailey’s complaint.
Thomas Bailey and Rite Aid Corporation, concerning the production of documents and communications related to the Valisure study.
What happened
In Bailey v. Rite Aid Corporation, Thomas Bailey and Rite Aid Corporation disputed whether communications between Bailey’s counsel and Valisure LLC had to be produced. Bailey argued that the communications were protected because Valisure was an expert retained for trial preparation.
The court found exceptional circumstances because Bailey’s complaint relied heavily on an independent study concerning Rite Aid’s rapid-release acetaminophen gelcaps. The court said discovery was needed to test the allegations, and that any waiver of protection was limited to documents and communications concerning the Valisure study.
Judge Rogers granted in part and denied in part the joint discovery letter brief and ordered production of the listed document, Bailey-Valisure000097-000101. The order terminated docket numbers 93 and 94.
The detailed version
- Bailey v. Rite Aid Corporation · No. 4:18-cv-06926
- Yvonne Rogers
- Nov. 18, 2020
Background
The court addressed a discovery dispute about communications between counsel for Thomas Bailey and Valisure LLC. Bailey argued that the communications were protected under Federal Rule of Civil Procedure 26(b)(4)(D)(ii), which generally protects facts and opinions held by an expert retained or specially employed for trial preparation when the expert is not expected to testify.
Bailey’s complaint relied on a study concerning whether Rite Aid’s rapid-release acetaminophen gelcaps dissolved faster than Rite Aid’s traditional acetaminophen products. The complaint alleged that the rapid-release products could dissolve more slowly than the traditional products and that Rite Aid’s labeling and advertising were false, misleading, unfair, or deceptive.
Court’s Analysis
The court found exceptional circumstances allowing discovery under Rule 26(b)(4)(D)(ii). It explained that the study was critical to Bailey’s allegations and that discovery concerning the study was necessary to test the specific claims in the complaint. The court also stated that the possible relationship between the study’s authors and Bailey’s counsel could bear on the study’s weight, truthfulness, and credibility.
The court relied on its earlier ruling that Bailey had plausibly alleged that Rite Aid’s labeling could confuse or mislead the public. In that earlier ruling, the court had considered Rite Aid’s challenge to the study premature. The court reasoned that, because Bailey had relied on the study in the complaint and used it in the litigation, any waiver of protection extended only to documents and communications relating to the Valisure study. It did not extend to other testing, communications, or opinions involving consulting experts that were not specifically referenced in the complaint.
Disposition
Judge Yvonne Gonzalez Rogers granted in part and denied in part the discovery letter brief. The court ordered production of Bailey-Valisure000097-000101 and stated that the order terminated Docket Numbers 93 and 94.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.