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

Background

This order resolved a discovery dispute concerning Walgreens’ request that the California Department of Justice identify prescribers in CURES data that the Department had already produced in anonymized form. In an earlier round of this case, the court held that identifying prescribers was subject to California Code of Civil Procedure section 1985.3(b), which requires notice of a subpoena for personal records and an opportunity to object. The court therefore directed that the CURES data initially be anonymized and allowed Walgreens to seek particular identities after reviewing the data.

Walgreens sent notices to prescribers and personally served some of them after being told that earlier mailed notices did not comply with the statute. Twenty-six prescribers did not object. Walgreens moved to compel the Department of Justice to identify those 26 prescribers.

Analysis

The Department of Justice did not dispute that Walgreens had provided notice to the 26 prescribers. It argued that the notice was deficient because Walgreens’ cover letter stated that a written objection had to be served on Walgreens but did not also state that it had to be served on the Department, which was the records witness under the statute. Walgreens responded that the cover letter referred the prescribers to an attached California Judicial Council form explaining their obligations and providing a form for an objection.

The court stated that it was not clear whether the statute required service on both the subpoenaing party and the records witness to preserve an objection. The court concluded that any uncertainty did not matter here because Walgreens sought to identify only prescribers who had not served an objection on Walgreens or the Department. The court found that the cover letter clearly instructed the prescribers to object in writing by November 22, 2021 and that the relevant form appeared immediately after the cover letter.

The court found that Walgreens had materially complied with the statutory notice requirement. To guard against possible confusion, the court required Walgreens to send each of the 26 prescribers another notice stating that the court had ordered production of some of their CURES data and advising them to contact counsel for the California Department of Justice with questions. Walgreens had to show the draft notice to the Department before sending it, but the notice was not allowed to delay production.

Disposition

The court GRANTED Walgreens’ motion to compel the California Department of Justice to identify the 26 non-objecting prescribers. The Department was ordered to provide the requested data by January 7, 2021, and Walgreens was ordered to provide a draft of the additional notice to the Department by January 4, 2021.

The court DENIED Walgreens’ request for a hearing concerning the prescribers who had objected. The court explained that Walgreens had not adequately addressed how those prescribers would receive notice of a hearing, how the issue would be presented, how many prescribers had objected, whether they had lawyers, or what discussions Walgreens had had with any lawyers. Magistrate Judge Jacqueline Scott Corley stated that the order disposed of docket entry 869.