United States of America ex rel. Uri Bassan v. Omnicare, Inc.

Nature of the Provided Material

The provided text is a November 11, 2022 letter from defense counsel, not a complete judicial opinion. The letter concerns a discovery dispute in a False Claims Act case brought by the government. The case caption in the letter also refers to CVS Health Corp., but the supplied case name identifies Omnicare, Inc. as the defendant.

Background

According to the defendants’ letter, the government’s case is based on allegations that Omnicare dispensed prescription medications to residents of long-term-care facilities using improper documentation and that federal healthcare agencies would not have paid claims based on that documentation. The defendants disputed those allegations and focused discovery on what the Defense Health Agency, or DHA, actually did when auditing long-term-care pharmacy claims.

The defendants said they served requests for production in May 2021 seeking records concerning DHA audits of Omnicare, audits involving Medication Orders, and audits examining the documentation used to dispense medication. The government later proposed producing a limited group of audit files. After a court conference, the government also agreed to produce a sample of audits without a final discrepancy code. The government reportedly identified 6,200 such audits and proposed producing 180 of them, or approximately 3 percent.

Defendants’ Position

The defendants argued that the proposed sample was inadequate because audits with discrepancy codes were more likely to support the government’s allegations, while audits without those codes could contain information favorable to the defendants. They requested production of all 6,200 audits.

The defendants also argued that the government had invoked Federal Rule of Civil Procedure 33(d), which allows a party to answer interrogatories by identifying business records from which the answer can be determined. The defendants said the government had represented that it would provide all information needed for the defendants to determine the answers themselves. They contended that producing only 3 percent of the potentially relevant audits did not satisfy that representation.

The letter further describes the government as raising burden concerns, including possible privilege review and a proposed review of each audit file by an employee of Express Scripts. The defendants argued that these general burden assertions did not justify withholding highly relevant discovery.

Disposition

The provided materials do not clearly state a judicial ruling on the defendants’ request. The page includes a “SO ORDERED” annotation signed by Magistrate Judge Valerie Figueredo. That annotation appears to direct the issues raised in letters submitted at certain docket entries to be addressed at a conference scheduled for November 16, 2022, but the text is visibly incomplete. Because the actual disposition is not clear from the provided text, this summary does not characterize the request as granted, denied, or granted in part and denied in part.