City and County of San Francisco v. Purdue Pharma L.P.

Background

The court addressed a joint discovery-dispute letter concerning two requests by defendants: (1) documents from nine additional custodians, who were physicians employed at hospitals and clinics affiliated with the City and County of San Francisco; and (2) reports and other documents relating to CURES, California’s prescription-drug monitoring database. The CURES data was held by the plaintiff’s epidemiologists at the Department of Health.

Defendants argued that the additional custodians’ prescribing practices, internal communications, and views on citywide policy were relevant to causation. They also argued that the CURES data was important for understanding how the plaintiff and its epidemiologists evaluated and responded to prescription-drug abuse and diversion in San Francisco. The plaintiff argued that its agreement with the California Department of Justice restricted disclosure of the CURES data and that its counsel had not seen the data.

Additional custodians

After hearing argument, defendants asked for permission to continue meeting and conferring with the plaintiff to narrow their request. The court denied defendants’ request for the nine additional custodians without prejudice and ordered the parties to meet and confer. If they could not resolve the issue by March 12, 2021, the court directed them to submit a new joint discovery-dispute letter if defendants wished to pursue the request.

CURES data

The court granted defendants’ motion to compel production of the CURES data in the plaintiff’s possession. It concluded that the data was not privileged. Relying on a California Court of Appeals decision and the applicable statute and regulations, the court determined that California law contemplated disclosure of CURES data in civil litigation in response to a court order. The court also noted that the data at issue was de-identified, meaning that patient, prescriber, and pharmacy names and identifying information were excluded.

The court rejected the plaintiff’s argument that the data-use agreement barred production. The agreement expressly stated that CURES data could not be disclosed or transferred in legal proceedings or in response to subpoenas without a court order. The court determined that its order compelling production supplied the required authorization and would not cause a breach of the agreement.

The court further concluded that the California Department of Justice had not opposed production of this particular dataset, despite knowing that the data could be disclosed in response to a court order. The court therefore determined that the plaintiff could not rely on the department as a reason to withhold the data.

Finally, the court found the data potentially relevant to defendants’ defense. Although its ultimate admissibility could not yet be determined because defendants had not accessed or analyzed it, the court held that the data was discoverable. Because the data concerned opioid prescribing, dispensing, and distribution, and because defendants requested it in anonymized form and the plaintiff did not raise a burden argument, the court found production proportional to the needs of the case.

Disposition

The court granted defendants’ motion to compel the CURES data held by the plaintiff’s epidemiologists. It denied defendants’ request for additional custodians without prejudice and ordered the parties to meet and confer, with a new joint discovery-dispute letter permitted if they remained at an impasse.