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

Background

This discovery order addressed multiple letter motions in the related actions involving the United States, Uri Bassan, Omnicare, Inc., and CVS Health Corp. The defendants asked the court to compel disclosure of documents concerning a proposed Recovery Audit Contractor audit. The Government asserted the deliberative process privilege, which can protect government discussions and analysis used in developing policies or decisions.

In an earlier order, the court had concluded that the defendants had not shown a compelling need for the documents sufficient to overcome the privilege. The defendants argued that the need had changed because a Government witness testified about the audit’s methodology and the Centers for Medicare & Medicaid Services’ rejection of the audit.

Rulings on the Defendants’ Requests

The court denied the defendants’ request to compel production of the proposed-audit documents. It found that the defendants had not shown that the Government affirmatively used information about the proposed audit in the litigation. The court noted that the Government had not tried to introduce documents or information about the audit or about deliberations concerning the decision not to adopt it. The witness’s answers to deposition questions did not constitute affirmative use of the privileged information.

The defendants also asked to reopen the deposition of Omnicare’s witness designated under Federal Rule of Civil Procedure 30(b)(6). The court granted that request and allowed the defendants an additional 30 minutes to question the witness about preparation for the deposition.

Ruling on the Government’s Request

The Government sought an order requiring the defendants to expand their rereview of privileged documents to approximately 4,000 documents. The Government had previously sought review of five categories of documents and, after an earlier court-supervised process, the defendants had agreed to rereview documents in categories 1 and 2. The defendants later produced approximately 4,000 documents after that rereview, including documents previously withheld or redacted and documents not previously produced.

The Government renewed its request for a broader rereview covering categories 3, 4, and 5, involving approximately 4,300 documents. The defendants argued that the request was untimely because fact discovery had closed and the Government had not previously challenged the privilege review for those categories. The court rejected that argument, finding that the Government had repeatedly challenged the privilege review while discovery remained open and that the court had previously indicated it would revisit the broader request after the categories 1 and 2 rereview. The court granted the Government’s request at ECF No. 449.

Other Dispositions

The Clerk was directed to terminate the letter motions at ECF Nos. 449-450, 458, and 460. The court also stated that the request at ECF No. 429 had been resolved at the May 1 conference and directed the Clerk to terminate that letter motion. Judge Valerie Figueredo signed the order on May 8, 2024.