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

Background

Walgreens Co. issued subpoenas to the California Board of Pharmacy and the California Department of Justice, both non-party state agencies, seeking information from California’s Controlled Substance Utilization Review and Evaluation System database. The database contains information about patients, prescribers, pharmacies, and controlled-substance prescription sales, and the opinion describes it as the most complete source of opioid-dispensing data in California.

Walgreens sought data concerning specified opioids and other drugs in nine Bay Area counties from January 1, 2012, through the present. The requested fields included drug information, prescription dates and quantities, prescriber information, patient ZIP codes and unique identification numbers, refill information, and pharmacy information. Walgreens agreed that patient identification numbers would be de-identified and stated that it would not try to identify patients.

Department of Justice subpoena

The court applied the federal discovery rule requiring discovery to concern nonprivileged matters relevant and proportional to a party’s claim or defense. It found the requested data relevant to Walgreens’ defense because Walgreens sought to show that other pharmacies, doctors, and opioid dispensers were alternative causes of the alleged public nuisance. The court also found the data relevant to the amount of money San Francisco sought.

The court rejected the Department of Justice’s official-information and deliberative-process privilege arguments. It reasoned that California law contemplates disclosure of some CURES information in civil litigation and that the requested data did not reveal government officials’ decision-making processes. The court therefore found that the data was not protected from production by privilege.

The court addressed privacy and notice requirements separately. Walgreens had not provided the required notice to prescribers, who are natural persons whose prescription information qualifies as personal information. The court nevertheless granted the motion to compel subject to protections. It stated that the requested patient information would be de-identified, and it did not require notice for pharmacy records because pharmacies are not natural persons, although the court noted that notice might be needed if pharmacy records could identify a particular pharmacist.

The order required the Department of Justice’s production to occur under the existing protective order, with all produced information designated highly confidential and limited to outside counsel and one identified in-house lawyer. Patient and prescriber information had to be de-identified; Walgreens could not try to reconstruct identifying information from the data; and Walgreens had to pay the Department of Justice up to $2,000 for production costs. If Walgreens later determined that it needed the identities of particular prescribers, it was to meet and confer with the Department of Justice about notice and bring any unresolved dispute to the court through a joint letter brief.

The court also denied the Department of Justice’s motion for a stay and reconsideration of the court’s March 5, 2021 order compelling production of de-identified CURES data held by one of San Francisco’s epidemiologists. The court ordered Walgreens not to use that data to reverse-engineer identifying information.

Board of Pharmacy subpoena

The Board sought to quash Walgreens’ subpoena for de-identified CURES data in investigative files concerning nine Bay Area pharmacists who had lost their licenses for improper opioid dispensing. The court granted the motion to quash. It found that the data contained the pharmacists’ personal information and that Walgreens had not given them the required notice. The court also found that the data was duplicative of the information it ordered the Department of Justice to produce.

To the extent the Board’s material was not duplicative, the court found that it was protected by the deliberative-process privilege or irrelevant to Walgreens’ stated defense. The court explained that the case concerned whether Walgreens’ conduct substantially contributed to San Francisco’s opioid epidemic, not whether the Board properly investigated or disciplined particular pharmacists.

Disposition

Judge Jacqueline Scott Corley granted Walgreens’ motion to compel the Department of Justice, granted the Board of Pharmacy’s motion to quash Walgreens’ subpoena, and denied the Department of Justice’s motion for a stay and reconsideration. The order disposed of docket entries 282, 465, and 498.