United States of America ex rel. Uri Bassan v. Omnicare, Inc.
- Colleen McMahon
- 1:15-cv-04179
- U.S. District Court · Southern District of New York
- 3
United States ex rel. Bassan v. Omnicare: Judge McMahon scheduled a discovery dispute over pharmacy records for further discussion rather than deciding the request.
The United States and Omnicare are affected because the dispute concerns the scope of discovery Omnicare may have to provide about selected pharmacies. The text does not state a final effect on CVS Health Corp.
What happened
In United States of America ex rel. Uri Bassan v. Omnicare, Inc., the United States asked the court to require Omnicare to provide information about dispensing practices at selected pharmacies. The government’s case alleges that Omnicare pharmacies dispensed drugs without valid prescriptions and billed federal and state programs for those dispensations.
The government sought communications from 30 pharmacy employees, policies and complaints concerning 31 pharmacies, and testimony about 10 pharmacies. It argued that this discovery was relevant and limited. Omnicare had agreed to provide some materials concerning 10 pharmacies and testimony concerning three, but rejected or limited much of the government’s request.
The court did not grant or deny the request in this filing. Instead, Judge McMahon’s endorsement stated that the issues would be addressed at an October 13 discovery conference, with Omnicare’s response due September 30 and any other dispute letter due October 11.
The detailed version
- United States of America ex rel. Uri Bassan v. Omnicare, Inc. · No. 1:15-cv-04179
- Colleen McMahon
- Sept. 21, 2022
Background
The United States filed a letter motion under Federal Rule of Civil Procedure 37(a), which allows a party to ask the court to compel discovery. The government described a nationwide case alleging that 147 Omnicare pharmacies dispensed hundreds of thousands of drugs to elderly and disabled people without valid prescriptions and that Omnicare fraudulently billed Medicare, Medicaid, and TRICARE for those dispensations. These allegations are presented in the government’s complaint and advocacy letter; this filing does not decide whether they are true.
The government said it had requested pharmacy-specific communications and documents concerning dispensing standards, policies, procedures, goals, quotas, complaints, and prescription review practices. It also sought testimony under Rule 30(b)(6), which permits an organization to designate a witness to testify about information known or reasonably available to the organization.
Discovery Dispute
After Omnicare raised burden objections, the government narrowed its request to 31 pharmacies, fewer than one-third of the 147 pharmacies at issue. It proposed seeking communications from 30 pharmacy custodians, policies and procedures and complaints for the 31 pharmacies, and Rule 30(b)(6) testimony concerning 10 pharmacies. The government argued that Omnicare had not supported its objections with specific evidence of undue burden and that the request was proportional to the needs of the case.
The government also argued that Omnicare’s position conflicted with a September 8, 2022 discovery order requiring Omnicare to produce electronically stored information concerning the operations, practices, and procedures of a subset of its pharmacies. According to the government, Omnicare incorrectly read that order as allowing no pharmacy custodians and limiting the government to 30 headquarters custodians.
Omnicare had agreed to produce pharmacy policies and procedures and complaints from centralized repositories for only 10 pharmacies and to provide Rule 30(b)(6) testimony concerning only three pharmacies. The filing states that Omnicare rejected the government’s proposed pharmacy custodians and search terms, but it does not include Omnicare’s full response or the court’s final resolution of the discovery requests.
Court’s Action
The court did not rule in this filing that Omnicare must produce the requested materials, and it did not deny the government’s request. Judge Colleen McMahon endorsed the filing and stated that the issues raised in the letter motion would be addressed at the October 13 discovery conference. The endorsement required any response to the letter motion by September 30, 2022, and directed that other disputes for the conference be included in a joint letter due October 11, 2022. The filing therefore records scheduling and management of a discovery dispute, not a decision on the underlying allegations or claims.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.