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

Background

The Government requested an order preventing Omnicare from using, on a motion, at a hearing, or at trial, prescription documentation for sampled drug dispensations that Omnicare had not already produced during discovery. The Government relied on Federal Rule of Civil Procedure 37(c)(1), which generally bars a party that fails to timely provide required discovery information from using that information as evidence unless the failure was substantially justified or harmless.

The Government said it had requested prescription documentation for a sample of more than 100,000 drug dispensations and that Omnicare had agreed to produce the records. The court had set or extended production deadlines, including January 6 and January 17, 2023. According to the Government, Omnicare produced records from its document-imaging system and electronic-prescription data but later acknowledged that additional responsive records might exist, most likely in hard copy. Omnicare produced 13 additional pages on February 10, 2023, after the deadlines had passed.

Government’s Position

The Government argued that the late and incomplete production would prejudice its pharmacy expert, who needed to review a complete set of prescription documentation to assess whether the sampled dispensations were supported by valid current prescriptions. It also argued that Omnicare had not sought an extension or justified limiting its production to two locations. The Government stated that it was not seeking exclusion of the 13 pages produced on February 10, but wanted to prevent further reliance on responsive records that had not been timely produced. It requested corresponding additional time for its experts if Omnicare received more time to produce records.

Order

The order did not grant or deny the Government’s requested preclusion relief. Judge Valerie Figueredo ordered Omnicare to respond to the Government’s letter by Tuesday, February 21, 2023. Any Government reply was due by Friday, February 24, 2023, at 5:00 p.m. The court stated that it would address the issue at the conference scheduled for February 28, 2023, at 2:30 p.m. The text provided therefore reflects a scheduling and discovery-related order, not a final decision on whether the prescription documentation would be excluded.