Opinion
ORDER FINDING PLAINTIFF STATES A COGNIZABLE CLAIM AND FORWARDING SERVICE DOCUMENTS TO PLAINTIFF THIRTY DAY THIRTY DAY DEADLINE
MICHAEL J. SENG, Magistrate Judge.
On June 18, 2014, Thuan Huy Ha ("Plaintiff"), a prisoner proceeding pro se and in forma pauperis, filed an action under the Freedom of Information Act, 5 U.S.C. § 552. (Compl., ECF 1.)
Plaintiff's First Amended Complaint is now before the Court for screening.
I. SCREENING REQUIREMENT
Title 28 of the United States Code, Section 1915A provides that "[t]he court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. at § 1915A(b)(1)-(2).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id . (quoting Twombly, 550 U.S. at 557). "[A] complaint [that] pleads facts that are merely consistent with' a defendant's liability... stops short of the line between possibility and plausibility of entitlement to relief.'" Id . (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id . "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id . (quoting Twombly, 550 U.S. at 555).
II. PLAINTIFF'S CLAIMS
Plaintiff filed this complaint while in the custody of Taft Correctional Institution. He currently is housed at the United States Residential Reentry Center in Garden Grove, California. Plaintiff names the Executive Office for United States Attorneys ("EOUSA") as the defendant in this action. Plaintiff brings a sole claim under 5 U.S.C. § 552, the Freedom of Information Act ("FOIA").
Plaintiff's allegations are summarized as follows:
Plaintiff submitted a FOIA request on April 9, 2013, asking the government to provide him with copies of 27 records: the nine original billing records of the pharmacy benefit managements companies; the nine original banks statements of Ha Pharmacy and Care Pharmacy; and, Exhibits 1-9 which were based on the 18 previously mentioned records and used in the matter United States v. Ha et al., No. 03-CR-29, (C.D. Cal., Feb. 25, 2004). (See ECF No. 7 at 50-53.) Defendant EOUSA did not respond to Plaintiff's request, and on April 22, 2014 sent Plaintiff a letter confirming that they had yet to respond to the request. Petitioner therefore asserts that over twenty business days have passed since he submitted his request and that based on the delay he has the right to seek recourse by way of filing an action in this Court. Plaintiff asks for an injunctive order compelling Defendant EOUSA to produce the requested records.
III. ANALYSIS
Under 5 U.S.C. § 552(a)(4)(B):
"Under this provision, federal jurisdiction is dependent on a showing that an agency has (1) "improperly" (2) "withheld" (3) "agency records."'" U.S. Dept. of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (quoting Kissinger v. Reporters Committee for Freedom of Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980)). "Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA's disclosure requirements." Id.).
Plaintiff's complaint sets forth when his FOIA request was submitted, where he sent it, what information he sought, the government's failure to respond to it, and why the lack of a response was improper. Plaintiff has stated with specificity the records he requests - trial exhibits from his criminal trial - that presumably remain in Defendant's possession. Plaintiff has provided sufficient basis to seek injunctive relief in this Court.
Accordingly, Plaintiff will be allowed to proceed on his FOIA claim.
IV. CONCLUSION AND ORDER
The Court finds that Plaintiff's complaint has stated a cognizable claim under the Freedom of Information Act against Defendant EOUSA.
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff shall proceed on his Freedom of Information Act claim against Defendant EOUSA;
2. Service shall be initiated on the following defendant: The Executive Office for United States Attorneys.
3. The Clerk of the Court shall send Plaintiff one (1) USM-285 form, one (1) summons, a Notice of Submission of Documents form, an instruction sheet and a copy of the Complaint filed June 18, 2014;
4. Within thirty (30) days from the date of this order, Plaintiff shall complete the attached Notice of Submission of Documents and submit the completed Notice to the Court with the following documents:
On complaint, the district court of the United States in the district in which the complainant resides... has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant....
a. Completed summons;
b. One completed USM-285 form for the Defendant listed above; and
c. Two (2) copies of the endorsed Complaint filed June 18, 2014;
5. Plaintiff need not attempt service on the Defendant and need not request waiver of service. Upon receipt of the above-described documents, the Court will direct the United States Marshal to serve the above-named Defendant pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
6. The failure to comply with this order will result in dismissal of this action.
IT IS SO ORDERED.
INSTRUCTIONS FOR COMPLETING FORM USM-285
After the court has issued an order granting your application to proceed without prepayment of fees and directing that service of process be made by the United States Marshal, you must complete an original USM-285 form for each individual defendant named in your action.
1. PLAINTIFF: Print your name.
2. COURT CASE NUMBER: Print the complete case number listed on your complaint.
3. DEFENDANT: Print the name of one defendant on each separate form.
4. TYPE OF PROCESS: Print "Summons and Complaint."
5. SERVE AT: Enter the name and address for service of one defendant on each individual USM-285 form.
6. SEND NOTICE OF SERVICE TO REQUESTER AT: Enter your name and mailing address.
7. NUMBER OF PROCESS TO BE SERVED WITH THIS FORM - 285: 1.
8. NUMBER OF PARTIES TO BE SERVED IN THIS CASE: Enter the number of defendants you have named in your suit.
9. CHECK FOR SERVICE ON U.S.A.: Check ONLY if the defendant listed on the form is an entity of the U.S. Government.
10. Sign and date the form, check the box marked "PLAINTIFF" and enter your telephone number (if one is available).
[] If you are the plaintiff and are currently incarcerated, you must return the completed USM-285 forms to the Clerk's Office at 2500 Tulare Street, Room 1501, Fresno, CA 93721, together with the following:
1. An original Summons for each defendant to be served;
2. A file-endorsed copy of the complaint to be served on each individual defendant;
3. A copy of the order directing service by the U.S. Marshal to be served on each individual defendant;
4. One copy of the complaint and one copy of the order directing service for the U.S. Marshal's file.
5. The completed "Notice of Submission of Documents" form enclosed herewith.
PLEASE NOTE that only the defendants against whom the court has determined you have a cognizable claim will be served.
[] If you are the plaintiff in pro per, you must return the completed USM-285 forms to the Clerk's Office at 2500 Tulare Street, Room 1501, Fresno, CA 93721, together with the following:
1. An original Summons for each defendant to be served;
2. A copy of each summons to be served on each individual defendant;
3. A copy of the complaint to be served on each individual defendant;
4. A copy of the order directing service by the U.S. Marshal to be served on each individual defendant;
5. One copy of each summons, one copy of the complaint and one copy of the order directing service for the U.S. Marshal's file.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Plaintiff hereby submits the following documents in compliance with the court's order filed _______________.
______ completed USM-285 forms
______ copies of the complaint/amended complaint
______ completed Summons forms
TO BE COMPLETED BY THE CLERK:
The above documents were forwarded to U.S. Marshal
INSTRUCTIONS FOR SERVICE OF PROCESS BY U.S. MARSHAL
Please type or print legibly, insuring readability of all copies. DO NOT DETACH ANY COPIES. Submit one complete set of this form (USM-285) and one copy of each writ for each individual, company, corporation, etc., to be served or property to be seized or condemned. The applicable fees for such service(s) (T28, USC Sec. 1921 establishes the fees for service of process by the U.S. Marshal) may be required prior to said service.
For service of any process upon an officer or agent of the United States Government, submit a copy of the writ and a set of Form USM-285 for each officer or agent upon whom service is desired. Submit three (3) additional copies of the writs for service upon the Government of the United States. The U.S. Marshal will serve one (1) upon the U.S. Attorney and will forward two (2) to the Attorney General of the United States. (When the applicable box is checked, completion of the final signature block by the U.S. Marshal or his Deputy always certifies service on the U.S. Attorney and the Attorney General, regardless of whether other defendants on the writ were served.) Failure to provide any of the copies will delay service of the writ.
Complete all entries above the double line. Mark all applicable check boxes and use the 'Special Instructions'' to advise of any information that will assist the U.S. Marshal in expediting service.
If more than one writ and USM-285 is submitted on a single case, the U.S. Marshal will receipt for all of them on the first USM-285. You will receive for your records the last (No. 5) "Acknowledgment of Receipt" copy for all the USM-285 forms you submit. When the writ is served, you will receive the No. 3 Notice of Service copy. This copy will be identical to the return to the Clerk of the Court.
Upon completion of all services (if the Marshals fees were not requested or tendered in advance or if additional fees are indicated), you will receive a 'Billing Statement'' (copy 4 of USM-285) from the United States Marshal. (NOTE: Copy 4 should be returned, by you, to the U.S. Marshal, together with your payment of the amount owed.
Additional supplies of the USM-285 may be obtained from the Clerk of the U.S. District Court or U.S. Marshal, without cost.
UNITED STATES DISTRICT COURT
YOU ARE HEREBY SUMMONED and required to serve on PLAINTIFF'S ATTORNEY (name and address)
an answer to the complaint which is served on you with this summons, within 21 days after service of this summons on you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. Any answer that you serve on the parties to this action must be filed with the Clerk of this Court within a reasonable period of time after service.
OAO 440 (Rev. 8/01) Summons in a Civil Action
RETURN OF SERVICE
(PRINT)Check one box below to indicate appropriate method of service
[ ] Served personally upon the defendant. Place where served: ___________________ __________________________________________________________________________
[ ] Left copies thereof at the defendant's dwelling house or usual place of abode with a person of suitable age and discretion then residing therein.
Name of person with whom the summons and complaint were left: ______________________
[ ] Returned unexecuted: ______________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________
[ ] Other (specify) ______________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________
STATEMENT OF SERVICE FEES
DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Return of Service and Statement of Service Fees is true and correct.
Signature of Server Address of ServerUNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
Comes now Plaintiff THUAN HUY HA, pro se, pursuant to 5 USC §552 (a)(4) (B) and 5 USC §552 (a)(6)(C)(i), respectfully moves this Court for an order that U.S. DEPARTMENT OF JUSTICE/EXECUTIVE OFFICE FOR U.S. ATTORNEYS (EOUSA) release 27 records Plaintiff requested, which were in EOUSA's possesion, based on the Reporter's Transcript of trial proceeding of February 25, and March 9 of 2004.
I. STATEMENT OF FACTS
On June 10, 2009, Plaintiff filed a FOIA Request. Plaintiff requested for 9 original billing records of pharmacy benefit management companies including Eckerd; RxAmerica; United Provider Services, Aetna; Caremark, Bluecross; Advance PCS; and Blueshield (PBMs), to which the government received in the hard copy forms along with the computer diskette forms from PBMs (APPENDIX A).
On June 28, 2010, EOUSA responded by producing 40 pages of computer printouts with many data fields were missing such as: amount submitted; claim status; total payments of billing cycles; billing cycle dates; titles of PBMs (APPENDIX B).
On September 8, 2010, the Department of Justice/Office of Information Policy (OIP) responded to Plaintiff's Appeal No. 2010-2762, affirming EOUSA's action of producing 40 pages of computer printouts was "the Ha Pharmacy's original billing records" of PBMs Plaintiff requested (APPENDIX C).
On April 9, 2013, Plaintiff filed a second FOIA Request. Eased on the Reporter's Transcript of trial proceeding of February 25, and March 9 of 2004, Plaintiff requested specific items, total of 27 records including: 9 original billing records of PBMs; 9 records of Trial Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9 (Trial Exhibits 1-9); and 9 records of bank statements of Ha Pharmacy NABP #05-70172 and Care Pharmacy NABP #05-5554 indicating PBMs' $14 millions as Trial Exhibits 1-9 indicated (27 records) (APPENDIX D).
On April 22, 2014, OIP responded to Plaintiff's Appeal No. AP-2014-02270, citing that "As no adverse determination has yet been made by EOUSA, there is no action for this Office to consider on appeal" (APPENDIX E).
II. ARGUMENT
Plaintiff contends that EOUSA improperly withheld 27 records Plaintiff requested, which were in EOUSA's possession, as to the following facts:
1) Based on the Reporter's Transcript of trial proceeding of February 25 of 2004 (APPENDIX F), and March 9 Of 2004 (APPENDIX G), FBI Special Agent Vickey Vieley (SA Vieley), on direct with Prosecutor Lawrence Kole, testified that:
a) she did receive all 9 original billing records of PBMs in both forms: the hard copies and the computer diskettes (APPENDIX F; p2, 9, 14, 17; APPENDIX G;p 3, 6, 9, 11, 15 respectively with PBMs).
b) she did create Trial Exhibits 1-9 from the computer diskettes she received from PBMs to indicate PBMs' $14 millions were paid to Ha Pharmacy and Care Pharmacy including: Trial Exhibit 3 indicates Eckerd's $1,601,527.47 was paid to Ha Pharmacy; Trial Exhibit 8 indicates Eckerd's $148,224.96 was paid to Care. Pharmacy; Trial Exhibit 4 indicates RxAmerica's $316,778.92 was paid to Ha Pharmacy; Trial Exhibit 9 indicates United Provider Services' $138,346.47 was paid to Care Pharmacy (APPENDIX F; p2, 8, 14, 17 respectively); Trial Exhibit 1 indicates Aetna's $7,082,745.55 was paid to Ha Pharmacy; Trial Exhibit 2 indicates Caremark's $3,938,587.33 was paid to Ha Pharmacy; Trial Exhibit 5 indicates Bluecross' $357,294.37 was paid to Ha Pharmacy; Trial Exhibit 6 indicates Advance PCS' s, ', 33.63 $363,881.99 was paid to Ha Pharmacy; and Trial Exhibit 7 indicates Blueshield's $182,685.31 was paid to Care Pharmacy (APPENDIX G; p3, 6, 9, 11, 14 respectively).
Thus, according to SA Vieley's testimony, 27 records Plaintiff requested must be in EOUSA's possession.
2) In Plaintiff's first FOIA Request of June 6, 2009, Plaintiff requested for all 9 original billing records of PBMs, which according to SA Vieley's testimony, were already available in the hard copy forms she received from PBMs. However, Plaintiff received from EOUSA 40 pages of computer printouts, which have no indication of the following data fields:
(a) amount submitted by pharmacy: without amount submitted, PBMs will not pay for pharmacy's claims;
(c) total payments of billing cycles: without total payments, there were no pharmacy's claims;
(d) dates of billing cycles: without billing cycle dates, there were no pharmacy's claims submitted on any day;
(e) titles of PBMs: without PBMs' titles, 40 pages of computer printouts EOUSA produced are not, the records of PBMs;
(b) claims status: without claims status, 'nobody knows pharmacy's claims were paid or rejected;
(f) Ha Pharmacy NABP #05-70172: without NABP #05-70172, 40 pages of computer printouts EOUSA produced are not the records of Ha Pharmacy.
Without those above data fields, 40 pages of computer printouts EOUSA produced are not "the Ha Pharmacy's original billing records" of PBMs Plaintiff requested as OIP affirmed. EOUSA improperly withheld all 9 original billing records of PBMs, which according to SA Vieley's testimony of February 25 and March 9 of 2004 of trial proceedings were in EOUSA's possession, from Plaintiff.
3) In Plaintiff's second FOIA Request of April 9, 2013, Plaintiff requested for all 9 original billing records of PBMs again, along with other 9 records of Trial Exhibits 1-9 SA Vieley created, and 9 records of bank statements indicating PBMs' $14 millions were paid to Ha Pharmacy and Care Pharmacy as SA Vieley testified in her Trial Exhibits 1-9 she created, total of 27 records. This time, EOUSA never responded to Plaintiff's FOIA Request at all. Even after OIP responded to Plaintiff's appeal on April 22, 2014, EOUSA still did not respond to 27 records Plaintiff requested. EOUSA improperly withheld all 27 records Plaintiff requested for more than the statutory time period to respond, which is 20 working days since Plaintiff's request is Specific Items Request, not a Project Request.
III. CONCLUSION
For reasons setforth, Plaintiff respectfully requests this Court issue an order for EOUSA produce 27 records, Plaintiff requested, which according to SA Vieley's testimony, were in EOUSA's possession.
CERTIFICATE OF SERVICE
Plaintiff Ha certifies that the copy of this document was served by mail to:
APPENDIX A
FREEDOM OF INFORMATION/PRIVACY ACT OF 1974 REQUEST FORM
Pursuant to Title 5 U.S.C. 552 and all other relevant sections and parts thereof, I the undersigned, also identified above in the upper right-hand section of this form, hereby respectfully request the following information:
Re: U.S. v. THUAN HUY HA/Case No. SA CR 03-029 AHS / California. the original primary evidence, which is the Ha Pharmacy's original billing record, the government received from the pharmacy benefit Management companies included Eckerd, RxAmerica, United Provider Service, Aetna, Caremark, BlueCross, Advance PCS, and BlueShield in the hard copy form along with the diskette. ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________
If there are applicable rules and regulations governing your Agency in such matters, please forward them to me so that I might comply with them per the Freedom of Information Act of 1974.
If for any reason any of the above-requested information or material is deemed to be privileged and/or exempt under the F.0.1., please specify the statutory reasons for the exemption, the name and title of the person(s) making the decision to withhold the material.
Per the dictates of the Freedom of Information Act of 1974, your Agency has twenty (20) working days to respond to this request. In the event I do not receive a response by that time, I will deem this to be a formal denial and seek judicial remedy.
APPENDIX B
Dear Mr. Ha:
While processing your Freedom of Information-Privacy Acts (FOIPA) request, the United States Department of Justice, Executive Office for United States Attorneys located FBI information in their records. This material was referred to the FBI for direct response to you.
Enclosed are copies of the referred material. Deletions have been made pursuant to Title 5, United States Code, Section(s) 552/552a as noted below. See the enclosed form for an explanation of these exemptions.
40 page(s) were reviewed and 40 page(s) are being released.
You have the right to appeal any denials in this release. Appeals should be directed in writing to the Director, Office of Information Policy (01P), U.S. Department of Justice, 1425 New York Ave., NW, Suite 11050, Washington, D.C. XXXXX-XXXX. Your appeal must be received by 01P within sixty (60) days from the date of this letter in order to be considered timely. The envelope and the letter should be clearly marked "Freedom of Information Appeal." Please cite the FOIPA Request Number assigned to your request so that it may be easily identified.
APPENDIX C
Dear Mr. Ha:
You appealed from the action of the Executive Office for United States Attorneys (EOUSA) on your request for access to records pertaining to "the Ha Pharmacy's original billing record." Although your appeal was untimely because it was received by this Office approximately sixteen days past the regulatory deadline, in light of the apparent mail delays into and out of your prison, I am adjudicating your appeal as a matter of administrative discretion.
After carefully considering your appeal, I am affirming EOUSA's action on your request. Please be advised that EOUSA referred forty pages of responsive records to the FBI for processing and direct response to you. This referral was proper and in accordance with Department of Justice regulations. See 28 C.F.R. § 16.4 (2009). If you have any questions concerning the status of this referral, please contact the FBI directly. You may appeal any future adverse determination made by the FBI.
If you are dissatisfied with my action on your appeal, you may file a lawsuit in accordance with 5 U.S.C. § 552(a)(4)(B).
APPENDIX D
Dear Reviewing Officer:
This request to your agency and/or designee thereof, hereunto contained, is made pursuant to the terms, conditions and controls set forth under Title 5, U.S.C., §§552, 552(a), of the Freedom of Information and Privacy Acts, of which I am cognizant of the regulations involved with my request of information from your agency.
I, the requestor, seek copies of all documents on file, disk, diskette, film or other retrievable source from which the requested documents may be stored or filed. These documents are to be of the requestor's nature, likeness and/or being, relevant to his request with a written explanation for any/all documents that may be withheld from the requestor for whatever reason(s) may be. The requestor seeks all files, with indexes and cross-references for each document, contained in the so-called, "See Reference" file.
As requestor, I am aware of the amended Freedom of Information Act's provisional ruling that you may reduce or waive search and/or copying fees when the release of the requested information and/or documentation provided by your agency is ruled to be "In the Public's interest." The requestor believes, by and through the documents requested, other public agencies may also desire any number of copies of specified documents for their own personal file. Therefore, the requestor believes it to be improper and unduly burdensome to offer complete recompense toward the actual costs of obtaining the requested documents, if such is the case.
If you so determine that portions or entire pages of certain requested documents contain "sensitive" material and cannot be disclosed, I, the requestor seeks the provision of the remaining non-exempt portions of each document that is determined to be sensitive in nature, but reserve the right to appeal your retaining, ergo, withholding any portion of any document that you advise me of your action taken.
As is required for the preparation and procurement of the data requested, the following biographical account is provided to assist your agency in the researching efforts afforded toward the documents requested:
Date of birth: 01/24/60 Place of birth: SAIGON, VIETNAM
Mother's maiden name: LE
Father's name: THI HUY HA
Social Security No.: XXX-XX-XXXX FBI No. XXXXX-XXX
CH No.: ___________ INS No.: ____________________
Citizenship: U.S.A Race: VIETNAMESE
Other identification and/or biographical information: ____________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________
The following is a listing of files, records and/or documents to be researched and copied in accordance with the provisions of the Freedom of Information and Privacy Acts, Title 5, U.S.C., §§552, 552(a), and are to be provided to the requestor expeditiously:
Re: U.S.A v. THUAN HUY HA / Case No. SA CR 03-029 AHS Please see next pages for all of 27 records including 18 records of HA PHARMACY #0570172, and 9 records of CARE PHARMACY #055554, I request, which are located at:
I DECLARE UNDER PENALTY OF PERJURY, under the laws of the State of California, the foregoing is true and correct with the person named hereunto as requestor is the actual being requesting the aforementioned data.
Privacy Act Statement In accordance with 28 CFR Section 16.41(d) personal data sufficient to identify the individuals submitting requests by mail under the Privacy Act of 1974, 5 U.S.C. Section 552a, is required. The purpose of this solicitation is to ensure that the records of individuals who are the subject of U.S. Department of Justice systems of records are not wrongfully disclosed by the Department Failure to furnish this information will result in no action being taken on the request False information on this form may subject the requester to criminal penalties under 18 U.S.C. Section 1001 and/or 5 U.S.C. Section 552a(i)(3).
Public reporting burden for this collection of information is estimated to average 0.50 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Suggestions for reducing this burden may be submitted to Director, Facilities and Administrative Services Staff, Justice Management Division, U.S. Department of Justice, Washington, DC 20530 and the Office of Information and Regulatory Affairs, Office of Management and Budget, Public Use Reports Project (XXXX-XXXX), Washington, DC 20503.
Full Name of Requester1 THUAN HUY HA
Citizenship Status2 U.S.A. Social Security Number3 XXX-XX-XXXX
Current Address TAFT CORRECTIONAL INSTITUTION, P.O. Box 7001, TAFT, CA 93268
Date of Birth 01/24/60 Place of Birth SAIGON, VIETNAM
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, and that I am the person named above, and I understand that any falsification of this statement is punishable under the provisions of 18 U.S.C. Section 1001 by a fine of not more than $10,000 or by imprisonment of not more than five years or both, and that requesting or obtaining any record(s) under false pretenses is punishable under the provisions of 5 U.S.C. 552a(i)(3) by a fine of not more than $5,000.
Signature4 _______________________________ Date APRIL 9, 2013 _____________________________________________________________________________________________
OPTIONAL: Authorization to Release Information to Another Person
This form is also to be completed by a requester who is authorizing information relating to himself or herself to be released to another person.
Further, pursuant to 5 U.S.C. Section 552a(b), I authorize the U.S. Department of Justice to release any and all information relating to me to:
Print or Type Name
1 Name of individual who is the subject of the record sought.
2 Individual submitting a request under the Privacy Act of 1974 must be either "a citizen of the United States or an alien lawfully admitted for permanent residence, " pursuant to 5 U.S.C. Section 552a(a)(2). Requests will be processed as Freedom of Information Act requests pursuant to 5 U.S.C. Section 552, rather than Privacy Act requests, for individuals who are not United States citizens or aliens lawfully admitted for permanent residence.
3 Providing your social security number is voluntary. You are asked to provide your social security number only to facilitate the identification of records relating to you. Without your social security number, the Department may be unable to locate any or all records pertaining to you.
4 Signature of individual who is the subject of the record sought
Re: UNITED STATES v. THUAN HUY HA / Case No. SA CR 03-029 AHS
According to the Reporter's Transcript (RT) of trial proceeding of February 25, and March 9, 2004, which were attached here with my FOIA Request Form, FBI Special Agent Vickey Vieley (SA Vieley), on direct, testified at trial that:
a) she did receive the original billing records in the hard copy forms along with the diskettes from all of the Pharmacy Benefit Management companies; (PBMs) including Eckerd, RxAmerica, United Provider Service, Aetna, Caremark, Bluecross, Advance PCS, Blueshield (RT; 2/25/04; pages 74, 81, 86, 89; RT; 3/9/04; pages 149, 152, 155, 157, 161) respectively).
b) she did create Trial Exhibit 3 indicating Eckerd's $1,601,527.47 paid to Ha Pharmacy; Trial Exhibit 8 indicating Eckerd's $148,224.96 paid to Care Pharmacy; Trial Exhibit 4 indicating RxAmerica's $316,778.92 paid to Ha Pharmacy; Trial Exhibit 9 indicating United Provider Service's $138,346.47 paid to Care Pharmacy; Trial Exhibit 1 indicating Aetna's $7,082,745.55 paid to Ha Pharmacy; Trial Exhibit 2 indicating Caremark's $3,938,587.33 paid to Ha Pharmacy; Trial Exhibit 5 indicating Bluecross' $357,294.37 paid to. Ha Pharmacy; Trial Exhibit 6 indicating Advance PCS' $363,881.99 paid to Ha Pharmacy; Trial Exhibit 7 indicating BlueShield's $182,685.31 paid to Care Pharmacy (RT;2/25/04; pages 74-79, 80-85, 86-89, 89-92; 1 RT; 3/9/04; 149-152, 152-154, 155-157, 157-160, 160-163 respectively).
Now, I would like to request the following records, which were in the governmennt's possession, total of 27 records:
1. Trial Exhibit 3, which indicates Eckerd's $1,601,527.47 (RT; 2/25/04; p74-79).
2. The original billing record of Eckerd, which was already available in the hard copy form, SA Vieley received from Eckerd (RT; 2/25/04; p74).
3. Bank Statement of Ha Pharmacy #0570172, which indicates Eckerd's $1,601,527.47.
4. Trial Exhibit 8, which indicates Eckerd's $148,224.96 (RT; 2/25/04; p80-85).
5. The original billing record of Eckerd, which was already available in the hard copy form, SA Vieley received from Eckerd (RT; 2/25/04; p81).
6. Bank statement of Care Pharmacy #055554, which indicates Eckerd's $148,224.96.
7. Trial Exhibit 4, which indicates RxAmerica's $316,778.92 (RT;2/25/04; p86:89).
8. The original billing record of RxAmerica, which was already available in the hard copy form, SA VIeley received from RxAmerica (RT; 2/25/04; p86).
9. Bank statement of Ha Pharmacy #0570172, which indicates RxAmerica's $316,778.92.
10. Trial Exhibit 9, which indicates United Provider Service (UPS)'s $138.346.47. (RT; 2/25/04; p89-92).
11. The original billing record of UPS, which was already available in the hard copy form, SA Vieley received from UPS (RT;2/25/04;p89).
12. Bank statement of Care Pharmacy #055554, which indicates UPS' $138.346.47.
13. Trial Exhibit 1, which indicates Aetna's $7,082,745.55 (RT;3/9/04;p149-152).
14. The original billing record of Aetna, which was already available in the hard copy form, SA Vieley received from Aetna (RT;3/9/04;p149).
15. Bank statement of Ha Pharmacy #0570172, which indicates Aetna's $7,082,745.55.
16. Trial Exhibit 2, which indicates Caremark's $3,938,587.33 (RT;3/9/04; p152-154).
17. The original billing record of Caremark, which was already available in the hard copy form, SA Vieley received from Caremark (RT; 3/9/04; p152).
18. Bank statement of Ha Pharmacy #0570172, which indicates Caremark's $3,938,587.33.
19. Trial Exhibit 5, which indicates Bluecross' $357,294.37 (RT;3/9/04; p155-157).
20. The original billing record of Bluecross, which was already available in the hard copy form, SA Vieley received from Bluecross (RT;3/9/04;p155).
21. Bank statement of Ha Pharmacy #0570172, which indicates Bluecross' $357,294.37.
22. Trial Exhibit 6, which indicates Advance PCS' $363,881.99 (RT;3/9/04; p157-160).
23. The original billing record of Advance PCS, which was already available in the hard copy form, SA Vieley received from Advance PCS (RT; 3/9/04; p157).
24. Bank statement of Ha Pharmacy #0570172, which indicates Advance PCS' $363,881.99.
25. Trial Exhibit 7, which indicates Blueshield's $182,685.31 (RT;3/9/04; p160-163).
26. The original billing record of Blueshield, which was already available in the hard copy form, SA Vieley received from Blueshield (RT;3/9/04;p161).
27. Bank statement of Care Pharmacy #055554, which indicate Blueshield's 182, 685.31.
APPENDIX E
April 22, 2014
VIA: U.S. Mail
Dear Mr. Ha:
You attempted to appeal from the failure of the Executive Office for United States Attorneys (EOUSA) to respond to your request for access to records concerning your criminal case located in the United States Attorney's Office for the Central District of California.
Department of Justice regulations provide for an administrative appeal to the Office of Information Policy only after there has been an adverse determination by a component. See 28 C.F.R. § 16.9(a) (2013). As no adverse determination has yet been made by EOUSA, there is no action for this Office to consider On appeal.
As you may know, the Freedom of Information Act authorizes requesters to file a lawsuit when an agency takes longer than the statutory time period to respond. See 5 U.S.C. § 552(a)(6)(C)(i). However, I can assure you that this Office has contacted EOUSA and has been advised that your request is currently being processed. If you are dissatisfied with EOUSA's final response, you may appeal again to this Office.
This Office has forwarded a copy of your letter to EOUSA. You may wish to contact EOUSA's Requester Service Center at 202-252-6020 for further updates regarding the status of your request.
APPENDIX F
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
HONORABLE ALICEMARIE H. STOTLER, JUDGE PRESIDING
REPORTER'S TRANSCRIPT OF TRIAL PROCEEDINGS SANTA ANA, CALIFORNIA WEDNESDAY, FEBRUARY 25, 2009 8:56 A.M.
WHAT IS IT?
A THIS IS A CLAIMS DATA CHART THAT I RECEIVED FROM ECKERD PHARMACY, OR ECKERD HEALTH SYSTEMS.
Q DOES IT RELATE TO A PARTICULAR TIME PERIOD?
A YES. THE CLAIMS ARE FROM NOVEMBER 1, 1997, THROUGH MAY 31 OF 2000.
Q WHO DID YOU RECEIVE THIS DATA FROM?
A I RECEIVED THIS FROM MIKE LOPS.
Q WAS THAT A GENTLEMAN WHO TESTIFIED HERE YESTERDAY?
A YES, IT WAS.
Q IN WHAT FORMAT DID YOU RECEIVE. IT?
A I RECEIVED A PAPER COPY, AND I ALSO RECEIVED INFORMATION ON A DISKETTE IN EXCEL FORMAT.
Q IS EXHIBIT 3 A XEROX PHOTOCOPY OF THE PAPER RECORD THAT WAS SENT TO YOU BY MR. LOPS?
A NO, IT'S NOT.
Q HOW IS THIS PARTICULAR VERSION OR PRINTOUT CREATED?
A THIS WAS PRINTED FROM MY COMPUTER PRINTER.
Q WAS IT PRINTED FROM THE DATA THAT YOU WERE PROVIDED BY MR. LOPS?
A YES.
Q DID YOU PERSONALLY DO THAT?
A YES, I DID.
Q WHEN YOU CREATED THIS PRINTOUT, DID YOU INCLUDE ALL OF THE DATA FIELDS THAT ECKERD'S SENT IN THIS DOCUMENT?
A I BELIEVE, IN THIS DOCUMENT, IT HAS ALL OF THE DATA FIELDS.
Q DID YOU CHANGE ANY OF THE ACTUAL DATA IN THE DOCUMENT?
A NO, I DID NOT.
Q DID YOU ADD ANYTHING TO THIS DOCUMENT?
A I BELIEVE I DID ADD A TOTAL AMOUNT AT THE END OF THE PAGE, FOR THE CLAIMS SUBMITTED.
Q LET ME DIRECT YOUR ATTENTION TO THE LAST PAGE, PAGE 3-35.
MR. KOLE: AND YOUR HONOR, I'D REQUEST PERMISSION TO PUBLISH THAT PAGE.
THE COURT: ONCE AGAIN, WHAT PAGE WAS IT?
MR. KOLE: 3-35.
THE COURT: GO AHEAD.
MR. KOLE: THANK YOU.
BY MR. KOLE:
Q AGENT VIELEY, DO YOU SEE PAGE 3-35 ON THE PROJECTOR THERE?
A YES, I DO.
Q I'M GOING TO ZOOM IN NOW ON THE UPPER RIGHT-HAND CORNER. CAN YOU SEE THAT?
A YES, I DO.
Q DO YOU SEE A COLUMN ENTITLED "TOTAL AMOUNT DUE"?
A YES.
AT THE BOTTOM OF THAT COLUMN, IS THERE A NUMBER THAT BEGINS WITH A 1 AND A 6?
A YES.
Q DO YOU SEE WHERE I'M POINTING AT WITH MY PEN?
A YES, I DO.
Q IS THAT THE TOTAL YOU WERE JUST REFERRING TO?
A YES, I AM.
Q IS THAT ONE NUMBER THERE AT THE VERY END, IS THAT THE ONLY THING YOU ADDED TO THIS?
A YES.
Q IS EVERYTHING ELSE IN THIS DOCUMENT, ABOVE IT, THE SAME AS THE DATA PROVIDED TO YOU BY ECKERD?
A YES, IT IS.
Q DID YOU USE MICROSOFT EXCEL TO CREATE THIS PRINTOUT?
A YES, I DID.
ARE YOU FAMILIAR WITH THAT PROGRAM?
A YES, I AM.
Q HOW DID YOU BECOME FAMILIAR WITH IT?
A I TOOK SEVERAL CLASSES IN - EXCEL CLASSES.
Q DO YOU USE IT IN YOUR JOB?
A YES. I USE IT QUITE OFTEN.
Q ON A REGULAR BASIS?
A ON A REGULAR BASIS, YES.
Q IS IT COMMON FOR YOU, IN YOUR INVESTIGATION, TO DEAL WITH FINANCIAL MATTERS, NUMBERS?
A YES, IT IS.
Q AND DO YOU USE EXCEL TO HELP ORGANIZE THAT INFORMATION?
A YES, I DO.
Q IN YOUR EXPERIENCE, DOES THE EXCEL PROGRAM YOU WORK WITH DISPLAY AND ORGANIZE DATA IN A RELIABLE MANNER?
A YES.
Q IN YOUR EXPERIENCE, HAS IT MADE ACCURATE CALCULATIONS?
A YES.
Q AT SOME POINT, DID YOU MAKE A COMPARISON BETWEEN THE ACTUAL PRINTOUT, THAT IS EXHIBIT 3, AND THE COMPUTER-READABLE DATA THAT ECKERD GAVE TO YOU?
A YES, I DID.
Q WHAT DID YOU FIND?
A I FOUND THAT THE NUMBERS MATCHED, TOTAL DOLLAR AMOUNTS MATCHED.
Q AND THE DATA APPEARED TO BE THE SAME?
A APPEARED TO BE THE SAME, YES.
Q TAKE A LOOK AT THE FIRST PAGE, PLEASE, 3-1.
A YES.
MR. KOLE: YOUR HONOR, MAY I PUBLISH 3-1?
THE COURT: YES.
BY MR. KOLE:
Q AGENT VIELEY, FIRST I'M PLACING IT ON THE PROJECTOR FOR A WIDE VIEW SO WE CAN SEE THAT IT IS 3-1.
DO YOU SEE THAT?
A YES, I DO.
Q NOW, I'M GOING TO ZOOM IN ON THE UPPER LEFT-HAND CORNER SO WE CAN READ IT.
IN THE UPPER LEFT-HAND CORNER, DOES" IT INDICATE SOME INFORMATION ABOUT WHAT THIS DOCUMENT IS AND WHAT IS CONTAINED IN IT?
A YES.
Q WHAT DOES IT SAY?
A IT SAYS, "REPORT, HA PHARMACYS CLAIMS ITS CLIENTS ALL. TIME: NOVEMBER 1, 1997, THROUGH MAY 31 OF 2000, FOR N.A.B.P. NUMBER 0570172."
Q AND DID YOU EVER HAVE OCCASION TO LEARN WHAT - TO WHAT ENTITY THAT N.A.B.P. NUMBER WAS ASSIGNED?
A IT HAS ASSIGNED TO HA PHARMACY.
Q WHAT DATA FIELDS OR DATA ELEMENTS ARE CONTAINED IN THIS DATA?
A IT HAS NUMEROUS. IT HAS THE RX NUMBER.
Q ARE YOU MOVING NOW FROM THE - FIRST COLON FROM THE LEFT, ACROSS THE PAGE OF THE RIGHT?
A YES.
THANK YOU.
GO AHEAD.
A RX NUMBER, REFILL, FILL DATE, SUBMIT DATE, MEMBER ID, MEMBER LAST NAME, MEMBER FIRST NAME, ADDRESS ONE, CITY STATE, ZIP, D.E.A. NUMBER, M.D. LAST NAME, M.D. FIRST NAME, N.D.C. NUMBER, LABEL NAME
Q THAT ONE, LABEL NAME, DO YOU KNOW WHAT THAT REFERRED TO?
A THAT WOULD BE THE MEDICATION OR DRUG.
Q. GO AHEAD, PLEASE.
A QUANTITY, DAY SUPPLY, CHECK NUMBER, POST DATE, TOTAL AMOUNT DUE, AND THE STATUS OF THE CHECK, STATUS.
Q AND IN THE STATUS COLUMN, THERE IS A LETTER "P."
DOES THAT REFER TO IT BEING PAID?
A THAT'S - YES. THAT'S WHAT I WAS TOLD.
Q TAKE A LOOK AGAIN AT THE LAST PAGE. THE ONE I ASKED YOU ABOUT FIRST.
PLEASE DIRECT YOUR ATTENTION TO THE LOWER RIGHT-HAND CORNER OF THE DATA IN THE TOTAL AMOUNT DUE COLUMN.
A YES.
Q THAT TOTAL AT THE VERY BOTTOM YOU REFERRED TO, THAT WAS CALCULATED?
A YES.
Q WHAT WAS THE TOTAL THAT WAS CALCULATED?
A $1,601,527.47.
Q IS THAT A DOLLAR AMOUNT?
A YES, IT IS.
Q NOW, DID YOU RECEIVE DATA LIKE THIS FROM OTHER PHARMACY BENEFIT MANAGEMENT FIRMS AS WELL?
A NUMEROUS.
Q IN REGARD TO HA PHARMACY AND CARE PHARMACY?
A YES, I DID.
Q DID SOME OF THOSE ENTITIES PROVIDE YOU WITH DATA THAT ALREADY INCLUDED A GRAND TOTAL AT THE END LIKE THIS?
A YES, IT DID.
Q DID SOME NOT INCLUDE THAT?
A CORRECT.
Q IF THE ENTITY GAVE YOU DATA THAT DID NOT HAVE A SUM AT THE END, WHAT DID YOU DO?
A I WOULD JUST SUM THE TOTAL JUST TO FIND OUT WHAT DOLLAR WAS PAID.
Q AND YOU SAY YOU WOULD DO IT. HOW DID YOU ACTUALLY DO THAT?
A ON THE EXCEL PROGRAM, THERE'S AN AUTO SUM.
Q DO YOU INSTRUCT THE PROGRAM AS TO WHICH COLUMN OR WHICH FIELD TO ADD UP?
A YES.
Q DOES IT ADD THEM UP AUTOMATICALLY?
A AUTOMATICALLY, YES.
Q PLEASE TAKE A LOOK AT EXHIBIT 8.
A OKAY.
Q WHAT IS THIS DOCUMENT?
A THIS SAYS, "CLAIMS SUBMITTED BY CARE PHARMACY TO ECKERD."
Q DO YOU RECOGNIZE THIS DOCUMENT?
A THIS IS A DOCUMENT THAT I PREPARED.
Q DOES THIS DOCUMENT CONTAIN, DATA THAT YOU RECEIVED FROM SOMEONE?
A YES. I RECEIVED THIS INFORMATION FROM MICHAEL LOPS AT ECKERD HEALTH SYSTEMS.
Q WAS THIS ALSO SENT TO YOU IN BOTH PAPER HARD COPY AND ELECTRONIC FORMAT?
A YES, IT WAS.
Q NOW, ON THIS PRINTOUT, IN EXHIBIT 8 - LET ME ASK YOU THIS FIRST: THIS PARTICULAR PRINTOUT, IS THIS A PHOTOCOPY OF THE HARD COPY SENT TO YOU BY ECKERD?
A NO, IT IS NOT.
HOW IS THIS PARTICULAR PRINTOUT CREATED?
A I CREATED THIS ON MY COMPUTER.
Q IS EXHIBIT 8 AN ALL-INCLUSIVE PRINTOUT OF THE DATA THAT 11:1E ECKERD SENT YOU, OR IS IT A SUMMARY OF SOME OF THE DATA?
A IT'S A SUMMARY, I BELIEVE.
Q CAN YOU EXPLAIN WHAT IT SUMMARIZES.
A IT SUMMARIZES DATE OF SERVICE, N.A.B.P. NUMBER, THE PATIENT'S LAST - LAST NAME OF THE PATIENT, FIRST NAME, THE 111E PATIENT'S ID NUMBER, PRESCRIBER'S D.E.A. NUMBER, PRESCRIBER'S NAME, THE DRUG, QUANTITY, APPROVED FILLED, INGREDIENT COSTS, AMOUNT PAID, PAYMENT CHECK, AND PAYMENT DATE.
MR. KOLE: YOUR HONOR, MAY I PUBLISH THE FIRST PAGE, 8-1?
THE COURT: YES.
BY MR. KOLE:
Q AGENT VIELEY, DO YOU SEE THAT PAGE BEING DISPLAYED ON THE SCREEN?
A YES, I DO.
Q I'M ZOOMING IN ON THE UPPER PART WITH THE FIELDS THAT YOU WERE JUST REFERRING TO.
DID YOU SELECT CERTAIN DATA THAT ECKERD SENT TO YOU TO INCLUDE IN THIS PRINTOUT?
A YES, I DID.
Q DID YOU SELECT OTHER DATA TO NOT INCLUDE?
A YES.
Q WHY DID YOU NOT INCLUDE ALL OF THE DATA?
A IT REALLY WASN'T IMPORTANT TO OUR INVESTIGATION, AND THEY BECOME SO VOLUMINOUS THAT I CAN'T WORK WITH THE - SPREADSHEETS GET SO BIG, AND THE WRITING GETS SO LITTLE THAT I CAN'T SEE IT.
Q DID YOU FIND IT - SEEMED TO BE DIFFICULT TO TRY TO HAVE ALL OF THE INFORMATION, ALL OF THE COLUMNS ON THE SINGLE PAGE?
A YES.
Q WHEN YOU PREPARED THAT PRINTOUT, THOUGH, DID YOU CHANGE ANY OF THE ACTUAL DATA IN THE SPREADSHEET?
A NO, I DID NOT.
Q DID YOU AGAIN USE MICROSOFT EXCEL FOR THIS ONE?
A YES, I DID.
Q DID YOU ADD ANY EXPLANATORY INFORMATION TO THE DOCUMENT THAT IS EXHIBIT 8?
A I ADDED A HEADER ON THE TOP.
Q AND IF YOU LOOK ON THE SCREEN, I'VE ZOOMED ON THE UPPER-MIDDLE PORTION OF EXHIBIT 8, FIRST PAGE OF EXHIBIT 8, 8-1, AND I'M POINTING TO IT WITH MY PEN. IS THAT THE TITLE AT
THE TOP, SOMETHING YOU ADDED?
A YES. "CLAIMS SUBMITTED BY CARE PHARMACY TO ECKERD."
Q WHY DID YOU PUT THAT IN?
A BECAUSE THAT'S WHAT THIS REPORT CONTAINED.
Q WAS IT FOR INFORMATION PURPOSES?
A FOR MY INFORMATION, YES.
Q AND PLEASE DIRECT YOUR ATTENTION TO THE LOWER RIGHT-HAND CORNER, WHICH I'M GOING TO SHOW ON THE SCREEN NOW, WHERE IT HAS THE EXHIBIT NUMBER. DO YOU SEE THAT?
A YES, I DO.
Q TO THE RIGHT OF THAT, THERE'S ANOTHER NUMBER. WHAT IS THAT?
A 2-13-2004.
Q WHAT DOES THAT SIGNIFY?
A THAT WAS THE DATE THAT I RAN THIS REPORT FROM MY COMPUTER,
A COPY OF IT.
Q WAS THAT THE DATE YOU RECEIVED THIS DATA FROM ECKERD?
A NO.
Q HAD YOU RECEIVED THE DATA SOMETIME EARLIER?
A YES, I DID.
Q WHEN YOU RECEIVED THE DATA FROM ECKERD AND GOT A HARD COPY, DID THAT HARD COPY HAVE A DATE IN A SIMILAR POSITION TO THIS ON IT?
A I GUESS. I BELIEVE IT DID.
Q IT WAS A DIFFERENT DATE FROM THIS?
A YES, IT WAS.
BUT ECKERD MAY NOT HAVE HAD A DATE. I CAN'T RECALL SPECIFICALLY.
Q AND TAKE A LOOK, PLEASE, AT THE LAST PAGE, WHICH WOULD BE THE 11TH PAGE, 8-11.
MR. KOLE: MAY I PUBLISH THAT PAGE, YOUR HONOR?
THE COURT: YES.
BY MR. KOLE:
Q I'VE PLACED PAGE 8-11 ON THE SCREEN. DO YOU SEE IT ON THE SCREEN, AGENT VIELEY?
A YES, I DO.
Q AND I'M NOW GOING TO ZOOM IN ON THE LOWER RIGHT-HAND PORTION.
THERE'S SOME BOLD NUMBERS THERE. DO YOU SEE THEM?
A. YES.
Q WHAT ARE THOSE?
A THOSE ARE THE TOTAL AMOUNTS, APPROVED OF, BILLED, AGREED COSTS, AND THE AMOUNT PAID.
Q WHICH ONE, RIGHT OR LEFT, IS THE TOTAL AMOUNT PAID?
A THE NUMBER TO THE RIGHT.
Q WHAT NUMBER IS THAT?
A $148,224.96.
Q HERE AGAIN, DID YOU INSERT A COMMAND - COMMAND THE PROGRAM TO ADD UP THE FIGURES IN THAT COLUMN?
A YES.
Q NOW, EXHIBIT 8, DID YOU MAKE A COMPARISON OF THIS PRINTOUT TO THE ORIGINAL DATA SENT BY ECKERD FOR CARE PHARMACY TO - DID YOU COMPARE THIS PRINTOUT TO THE ORIGINAL DATA SENT?
A YES.
Q WHAT DID YOU OBSERVE?
A I OBSERVED THAT THE TOTALS WERE THE SAME.
Q AND DID THE DATA APPEAR TO BE THE SAME?
A YES. BECAUSE THE TOTALS ADDED UP, SO I FIGURED ALL OF THE FIELDS WERE THERE.
Q LET ME JUST ASK YOU ONE OTHER QUESTION, LOOKING AT THAT SAME PAGE: 8-11, AND I'M ZOOMING ON THE RIGHT - ON THE COLUMN TO THE RIGHT, NEAR THE RIGHT MARGIN. I'LL ZOOM IN ON THE UPPER-RIGHT CORNER.
DO YOU SEE IN THE COLUMN THAT'S SECOND FROM THE RIGHT MOST, WHERE IT SAYS "PAYMENT CHECK NUMBER"?
A YES, I DO.
Q WHAT DATA IS IN THAT COLUMN?
A THIS IS THE ACTUAL CHECK NUMBER ISSUED TO THE CLAIM CHECK.
Q IS IT POSSIBLE, USING THAT, TO TELL WHAT PRESCRIPTIONS ECKERD PAID FOR WITH WHICH PARTICULAR CHECKS?
A YES.
Q DOES THIS PRINTOUT CONTAIN SIMILAR DATA TO THE OTHER PRINTOUT AS ECKERD, REGARDING THE TYPE OF PRESCRIPTION, THE DRUG, THE MEMBER'S NAME, THE PRESCRIBING DOCTOR, AND THE PRICE?
A EXACTLY.
Q IS EXHIBIT 8 DATA THAT RELATES TO HA PHARMACY OR CARE PHARMACY?
A CARE PHARMACY.
Q AND WHAT TIME PERIOD IS REFLECTED IN EXHIBIT 8?
A BEGINNING AUGUST 21ST OF 2000, AND, I BELIEVE, TO MAY 23RD OF 2001.
Q PLEASE TAKE A LOOK AT EXHIBIT 4.
A OKAY.
Q DO YOU RECOGNIZE THAT DOCUMENT?
A YES. THIS IS CLAIMS SUBMITTED, HA PHARMACY, CLAIMS SUBMITTED TO RXAMERICA.
Q IS THIS A DOCUMENT THAT YOU RECEIVED?
A YES, IT IS.
Q WHO DID YOU RECEIVE IT FROM?
A I RECEIVED IT FROM RXAMERICA, JOE LAPINE.
Q THE GENTLEMAN WHO TESTIFIED BEFORE YOU?
A YES.
Q IN WHAT FORMAT WAS IT SENT TO YOU?
A I RECEIVED A PAPER COPY, AND I ALSO RECEIVED IT IN EXCEL, FLOPPY DISK.
Q THE PRINTOUT THAT IS EXHIBIT 4, IS THAT THE HARD COPY THAT YOU WERE SENT?
A NO, IT'S NOT.
Q HOW WAS EXHIBIT 4 CREATED?
A I PRINTED IT FROM MY COMPUTER DATABASE.
Q USING EXCEL?
A EXCEL.
Q WHEN YOU PRINTED THIS LIST, THAT IS EXHIBIT 4, DID YOU INCLUDE ALL OF THE DATA FIELDS THAT RXAMERICA PROVIDED, OTHER THAN THE MEMBER'S ADDRESS?
A I BELIEVE I DID.
Q AND DID YOU - WAS THERE A REASON WHY YOU DIDN'T INCLUDE THOSE PARTICULAR FIELDS?
A JUST FOR SPACE, AND IT WAS A REDUNDANCY.
Q WAS IT THE SIMILAR ISSUE TO THE ONE WE JUST TALKED ABOUT BEFORE, THAT IT WOULD BE TOO WIDE TO FIT ON THE PAGE?
A YES.
Q IS THIS, THEN, A SUMMARY OF DATA THAT WAS PROVIDED TO YOU BY RXAMERICA?
A YES, IT IS.
Q DID YOU CHANGE ANY OF THE ACTUAL DATA IN THE DOCUMENT OR IN THE PRINTOUT?
A NO, I DID NOT.
Q TAKE A LOOK AT THE LOWER RIGHT-HAND CORNER OF THE FIRST PAGE, EXHIBIT 4-1.
A YES.
Q IS THERE A DATE THERE?
A YES. 2-13-2004.
Q WHAT DOES THAT SIGNIFY?
A THAT'S THE DATE I PRINTED THIS SHEET.
Q IS THAT THE DATE YOU RECEIVED THIS INFORMATION FROM RXAMERICA?
A NO, IT IS NOT.
Q HAD YOU RECEIVED IT SOMETIME BEFORE?
A YES, I DID.
Q DID YOU MAKE A COMPARISON BETWEEN EXHIBIT A, THIS PRINTOUT, AND THE ACTUAL DATA FROM RXAMERICA TO SEE IF IT WAS ACCURATE?
A YES, I COMPARED IT.
Q WHAT DID YOU DISCOVER?
A FOUND THEY WERE THE SAME.
Q AND, AGAIN, DOES EXHIBIT 4 CONTAIN THE.SAME TYPES OF INFORMATION WE'VE DISCUSSED WITH EXHIBIT 8; THE MEMBER NAME AND IDENTIFICATION NUMBER, THE DRUG, THE PRESCRIBING DOCTOR, THE PRICE OR COSTS?
A YES, IT DOES.
Q WOULD YOU TAKE A LOOK AT THE LAST PAGE, EXHIBIT 4-22.
MR. KOLE: MAY I PUBLISH IT, YOUR HONOR?
THE COURT: YES.
BY MR. KOLE:
Q DO YOU SEE IT ON THE PROJECTOR, AGENT VIELEY?
A YES, I DO.
Q I'M NOW ZOOMING IN ON THE UPPER RIGHT-HAND PORTION WHERE THERE ARE TWO FIGURES IN BOLD TYPE.
DO YOU SEE THOSE?
A YES, I DO.
Q WHAT ARE THOSE?
A THIS IS THE AMOUNTS - THE TOTAL AMOUNTS SUBMITTED AND THE AMOUNT PAID COLUMNS.
Q AND IN THE BOTTOM RIGHT-HAND CORNER, IS THAT THE TOTAL AMOUNT PAID BY RXAMERICA TO HA PHARMACY?
A YES, IT IS.
Q HOW MUCH DOES IT SHOW THERE?
A THE AMOUNT PAID OR AMOUNT SUBMITTED?
Q THE AMOUNT PAID, PLEASE.
A THE AMOUNT PAID WAS $316,778.92.
Q TAKE A LOOK NOW AT EXHIBIT 9.
A OKAY.
Q DO YOU RECOGNIZE THAT DOCUMENT?
A YES, I DO.
Q WHAT IS IT?
A IT'S CLAIMS SUBMITTED BY CARE PHARMACY TO UNITED PROVIDER SERVICES.
Q DID YOU RECEIVE THAT DATA?
A YES, I DID.
Q DID YOU RECEIVE IT FROM UNITED PROVIDER SERVICES?
A YES, I DID.
Q IN WHAT FORM DID YOU RECEIVE IT?
A I RECEIVED IT IN THE SAME FORMAT, PAPER COPY, AND ALSO IN EXCEL DATA - EXCEL DISKETTE.
Q DO WE HAVE THE SAME SITUATION HERE? THIS IS A PRINTOUT YOU ACTUALLY PRINTED FROM THE DATA?
A YES, IT IS.
Q SO, AGAIN, THIS IS NOT A PHOTOCOPY OF THE HARD COPY YOU SENT; IS THAT RIGHT?
A NO, IT IS NOT.
Q IN THIS PRINTOUT, WERE THERE SOME DATA FIELDS YOU LEFT OUT FOR SPACE PURPOSES?
A YES.
THE COURT: COUNSEL, YOUR QUESTION BEFORE ASKED HER WHETHER OR NOT THAT WAS CORRECT, "AND SHE SAID, "NO, IT IS NOT." COULD YOU CLARIFY, PLEASE, WHAT THE ANSWER IS MEANT TO SAY.
MR. KOLE: THANK YOU, YOUR HONOR.
BY MR. KOLE:
Q WAS THERE SOME DATA THAT - WAS THERE SOME DATA THAT UNITED PROVIDER SERVICES SENT TO YOU THAT YOU DID NOT INCLUDE IN THIS PRINTOUT?
A THAT'S CORRECT, YES.
Q WHY?
A BECAUSE IT JUST - THERE'S TOO MANY FIELDS THAT I CAN'T PUT THEM ALL ON ONE PAGE AND I DON'T NEED THEM ALL FOR MY REPORTS.
Q. IS THIS A SUMMARY OF THE DATA PROVIDED TO YOU?
A YES, IT IS.
Q ON THIS ONE, DID YOU ADD A TITLE AT THE TOP?
A YES, I ADDED THE HEADER.
AT THE END, DID YOU INSTRUCT THE PROGRAM TO ADD UP THE TOTAL ALL?
A YES.
Q DID YOU CHANGE ANY OF THE ACTUAL DATA PROVIDED TO YOU?
A NO, I DID NOT.
Q AGAIN, AS WITH THE OTHER PRINTOUT, IN THE BOTTOM RIGHT-HAND CORNER, THERE'S A DATE. DO YOU SEE THAT?
A JUNE 13, 2004.
Q WHAT DOES THAT SIGNIFY?
A THAT'S THE DATE I MADE A COPY OF THIS REPORT FROM MY COMPUTER.
Q HAD YOU RECEIVED THE DATA PREVIOUSLY?
A YES, I HAVE.
Q DID YOU COMPARE THIS PRINTOUT, EXHIBIT 9, TO THE ORIGINAL DATA FROM U.P.S., TO SEE WHETHER IT WAS AN ACCURATE PRINTOUT?
A YES, I DID.
Q WHAT DID YOU DETERMINE?
A IT WAS AN - THE TOTAL AMOUNTS WERE THE SAME.
Q TAKE A LOOK AT THE LAST PAGE, 9-8.
A YES.
MR. KOLE: MAY I PUBLISH THAT PAGE, YOUR HONOR?
THE COURT: GO AHEAD.
BY MR. KOLE:
Q FIRST, I'M GOING TO ZOOM OUT AS I PLACE THAT PAGE ON THE PROJECTOR SO YOU CAN SEE THE EXHIBIT NO. 9 AND PAGE 8 AT THE BOTTOM.
AND NOW I'M ZOOMING IN ON THE UPPER RIGHT-HAND PORTION.
HERE, DO YOU SEE SOME BOLD TEXT DEPICTING - SOME BOLD TEXT AT THE BOTTOM OF THE AMOUNT PAID COLUMN?
A YES, I DO.
Q WHAT IS THAT?
A THIS IS THE TOTAL AMOUNT $138,346.47.
Q WHAT DOES THAT REPRESENT?
A IT PRESENTS THE TOTAL AMOUNT OF THE CLAIMS SUBMITTED BY CARE PHARMACY TO UNITED PROVIDER SERVICES.
Q WHICH NUMBER IS THE TOTAL CLAIMS SUBMITTED?
A THE - THE AMOUNT BILLED.
Q AND IS THERE A TOTAL OF THE AMOUNT PAID TO CARE PHARMACY SET FORTH?
A YES.
Q HOW MUCH WAS LISTED AS PAID TO CARE PHARMACY?
A AMOUNT PAID WAS $138,346.47.
Q DOES THIS PRINTOUT CONTAIN SIMILAR TYPES OF INFORMATION TO WHAT WE'VE DISCUSSED ON THE OTHERS; THE MEMBER, PRESCRIBING DOCTOR, DRUG, DATE, AMOUNTS PAID?
A YES.
Q TAKE A LOOK AT EXHIBIT 26, PLEASE.
A EXHIBIT WHAT?
APPENDIX G
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
HONORABLE ALICEMARIE H. STOTLER, JUDGE PRESIDING
REPORTER'S TRANSCRIPT OF TRIAL PROCEEDINGS SANTA ANA, CALIFORNIA TUESDAY, MARCH 9, 2004 9:20 A.M.
NOTHING FURTHER OF THIS WITNESS.
THE COURT: WERE THERE OTHER QUESTIONS OF THIS WITNESS?
MR. SILVERMAN: NO, YOUR HONOR.
MR. KOLE: NO QUESTIONS, YOUR HONOR.
THE COURT: ALL RIGHT, THEN. NOW THE WITNESS IS EXCUSED.
THANK YOU.
MR. KOLE, YOU MAY RECALL THE WITNESS.
MR. KOLE: THANK YOU, YOUR HONOR.
THE GOVERNMENT RECALLS AGENT VIELEY.
THE CLERK: YOU ARE REMINDED THAT YOU'RE STILL UNDER OATH.
(MS. VICKY L. VIELEY, HAVING BEEN PREVIOUSLY SWORN, WAS EXAMINED BY MR. KOLE AS FOLLOWS:)
THE CLERK: PLEASE STATE YOUR NAME AGAIN FOR THE RECORD.
THE WITNESS: VICKY L. VIELEY.
THE COURT: GO AHEAD.
MR. KOLE: THANK YOU.
DIRECT EXAMINATION (CONTINUED)
BY MR. KOLE:
Q OKAY. AGENT VIELEY, BACK TO OUR SHEETS.
DO YOU HAVE EXHIBIT 1?
A YES, I DO.
Q AND WHAT I WAS STARTING TO ASK YOU BEFORE WAS - AND I THINK YOU WERE JUST STARTING TO ANSWER IT WHEN WE BROKE - WHAT IS THAT DOCUMENT BEFORE YOU?
A THIS IS CLAIM DATA THAT I RECEIVED FROM AETNA FOR HA PHARMACY FROM JANUARY 2, 1999 TO APRIL 22, 2000.
Q WAS THIS DATA SENT TO YOU DIRECTLY?
A YES, IT WAS.
Q WHO DID YOU RECEIVE IT FROM?
A I RECEIVED IT FROM TABITHA KIELB.
Q AT AETNA?
A AT AETNA.
Q IN WHAT FORM DID YOU RECEIVE IT?
A I RECEIVED IT IN A HARD COPY, AND I ALSO GOT IT ON A COMPUTER DISK.
Q WERE YOU ABLE TO READ THE DATA ON THE DISKETTE WITH YOUR COMPUTER?
YES, I WAS. I DOWNLOADED IT INTO AN EXCEL PROGRAM.
Q AND THE PRINTOUT THAT IS EXHIBIT 1, DID YOU ACTUALLY YOURSELF PRINT OUT THIS DOCUMENT?
A THIS IS A PRINTOUT FROM MY COMPUTER, YES.
Q DID YOU INCLUDE ALL OF THE DATA FIELDS THAT AETNA GAVE TO YOU IN THIS PRINTOUT?
A NO. I OMITTED SEVERAL FIELDS JUST BECAUSE THEY WERE SO LARGE.
Q AND DID YOU DO THAT FOR THE PURPOSES OF READABILITY AND SPACE?
A YES.
Q DO YOU RECALL WHAT ITEMS YOU DID NOT INCLUDE IN THE PRINTOUT?
A MAYBE THE RX NUMBER, THE NDC NUMBER, IF IT LOOKED LIKE A REFILL. SOMETIMES IT HAS THE COUNTY OR THE ACTUAL PHARMACY NUMBER.
Q IN GENERAL, WERE THE ITEMS THAT YOU CHOSE NOT TO INCLUDE ONES THAT WERE NOT REALLY NECESSARY TO IDENTIFY THE PARTICULAR PRESCRIPTION AND WHO SUPPOSEDLY GOT IT?
A YES. I TAILORED THE CHARTS FOR WHAT I NEEDED THEM FOR.
Q IS THIS PRINTOUT THEN A SUMMARY OF DATA THAT AETNA GAVE OUT AS CLAIMS.ROM HA PHARMACY?
A YES, IT IS.
Q DID YOU ALTER OR CHANGE ANY OF THE ACTUAL DATA CONTAINED IN THE RECORD YOU RECEIVED?
A NO, I DID NOT. SOMETIMES I WOULD ADD A TOTAL AT THE END, BUT - OR I WOULD CHANGE THE TITLE SOMETIMES.
Q BUT THE ACTUAL DATA WITHIN THE SHEET, DID YOU CHANGE ANYTHING?
A NO, I NEVER CHANGED THE DATA.
Q AND IN THIS ONE, DID YOU ADD THE TITLE AT THE TOP OF EACH PAGE?
A YEAH, THE TITLE ON THE TOP, AND THEN THE TOTAL ON THE BOTTOM.
Q AGAIN, YOU SAID EXCEL WAS THE PROGRAM YOU USED FOR THIS PRINTOUT?
A YEAH, IT WAS.
Q IS THIS ACTUAL DOCUMENT, EXHIBIT 1, A PHOTOCOPY OF THE ONE THAT MS. KIELB SENT TO YOU?
A NO, IT'S NOT.
Q DOES IT HAVE THE DATE OF FEBRUARY 13, 2004 AT THE BOTTOM BECAUSE THAT'S THE DATE YOU PRINTED IT?
A YES.
Q DID YOU HAVE OCCASION TO COMPARE THIS PRINTOUT TO THE ORIGINAL DATA SENT TO YOU.ROM AETNA TO VERIFY THAT THIS PRINTOUT WAS AN ACCURATE REPRESENTATION OF WHAT AETNA SENT TO YOU?
A YES. I COMPARED THE AMOUNT PAID AND THE AMOUNT SUBMITTED, AND THEY WERE THE SAME.
Q AND ON THE LAST PAGE, EXHIBIT 1-72, CAN I DIRECT YOUR ATTENTION TO THAT PAGE, PLEASE.
A OKAY.
MR. KOLE: YOUR HONOR, MAY I PUBLISH THAT PAGE?
THE COURT: YES, YOU MAY.
MR. KOLE: AGAIN, THAT'S EXHIBIT 1-72.
BY MR. KOLE:
Q AGENT VIELEY, DO YOU SEE ON THE SCREEN THAT IT'S ZOOMED IN ON THE TITLE?
A YES.
Q LET ME DIRECT YOUR ATTENTION TO THE LOWER RIGHT-HAND CORNER. DO YOU SEE THE WORD "TOTAL" THERE?
A YES, I DO.
Q WHAT DOES IT INDICATE WAS THE TOTAL AMOUNT PAID BY AETNA TO HA PHARMACY?
A $7,082,745.55.
Q AND WAS THAT TOTAL INCLUDED IN THE ORIGINAL DATA SENT TO YOU?
A YES, IT WAS.
Q NOW, TURN TO EXHIBIT NO. 2.
A OKAY.
Q WHAT IS EXHIBIT 2?
A EXHIBIT NO. 2 IS HA. PHARMACY CLAIM DATA THAT I RECEIVED THAT WAS SUBMITTED TO CAREMARK.
Q WHAT TIME PERIOD DOES THAT COVER?
A JANUARY '99 TO MAY OF 2000.
Q WHO DID YOU RECEIVE IT FROM?
A I BELIEVE I RECEIVED THIS FROM KEN RUESCH.
Q IN WHAT FORM DID HE SEND THIS DATA TO YOU?
A IN A PAPER COPY AND ALSO ON A COMPUTER DISK.
Q AGAIN, WERE YOU ABLE TO READ THE COMPUTER DISKETTE ON YOUR COMPUTER?
A YES.
Q IS THIS ACTUAL PRINTOUT THAT'S EXHIBIT 2 A PHOTOCOPY YOU MADE FROM THE HARD COPY THAT WAS SENT TO YOU?
A NO. THIS IS A COPY THAT I PRINTED FROM MY COMPUTER.
Q IS THAT WHY IT BEARS A FEBRUARY '04 DATE ON THE BOTTOM?
A YES.
Q IS THAT THE DATE WHEN YOU PRINTED IT?
A YES.
Q DID YOU PRINT OUT ALL OF THE DATA THAT CAREMARK SENT TO YOU?
A NO, I OMITTED SEVERAL FIELDS FROM THIS ONE AS WELL.
Q AGAIN, FOR SPACE PURPOSES?
A YES.
Q AND WAS IT ALSO BECAUSE YOU BELIEVED THAT EXTRA INFORMATION WASN'T NECESSARY TO IDENTIFY THE PARTICULAR PRESCRIPTIONS THAT WERE REPRESENTED HERE?
A CORRECT.
Q DID YOU ADD ANYTHING TO THE PRINTOUT?
A THE TITLE.
Q ON THIS ONE, DID YOU ALSO EDIT OR SLIGHTLY REVISE THE TITLES OF EACH COLUMN TO MAKE THEM SOMEWHAT MORE READABLE ENGLISH?
A I BELIEVE I DID.
Q WHAT WOULD THOSE ITEMS BE? THE MEMBER NAME, DRUG NAME AND THE PRESCRIBER?
A CORRECT.
Q DOES THIS ACCURATELY REPRESENT A SUMMARY OF THE DATA PROVIDED TO YOU BY CAREMARK?
A YEAH.
Q DID YOU COMPARE ANY DATA CONTAINED WITHIN THESE SHEETS - AFTER YOU PRINTED IT OUT, DID YOU COMPARE YOUR PRINTOUT TO THE ORIGINAL DATA SENT TO YOU BY CAREMARK TO SEE IF IT WAS AN ACCURATE DEPICTION OF THAT DATA?
A YES, I DID.
Q DID YOU DETERMINE THAT IT WAS ACCURATE?
A YES, IT WAS.
Q WAS THE TOTAL INCLUDED ON THE BOTTOM OF THE LAST PAGE?
A IT IS.
MR. KOLE: YOUR HONOR, MAY I PUBLISH EXHIBIT 2-73?
THE COURT: YES.
(EXHIBIT 2-73 PUBLISHED TO THE JURY.)
BY MR. KOLE:
Q DO YOU SEE THE TITLE OF THE DOCUMENT ON THE SCREEN?
A YES, I DO.
Q DIRECTING YOUR ATTENTION TO THE LOWER RIGHT-HAND CORNER, WHICH I'VE PLACED ON THE SCREEN, DOES IT INDICATE THE AMOUNT PAID BY CAREMARK TO HA PHARMACY?
A YES, IT DOES.
Q WHAT DOES IT SAY?
A $3,938,587.33.
Q NOW, PLEASE TURN TO EXHIBIT NO. 5.
A ALL RIGHT.
Q DO YOU RECOGNIZE EXHIBIT 5?
A YES, I DO.
Q WHAT IS IT?
A THIS IS BLUE CROSS/WELLPOINT CLAIMS SUBMITTED BY HA PHARMACY FROM FEBRUARY OF 1999 THROUGH AUGUST OF 2000.
Q DID YOU RECEIVE THIS DATA FROM SOMEONE?
A YES, I DID.
Q FROM WHO?
A I RECEIVED THESE FROM BRUCE STOUGHTON AND FROM DENNIS KOON AT WELLPOINT.
Q DID THEY SEND THIS TO YOU IN THE SAME WAY AS THE OTHERS DID, IN HARD COPY FORM, AND ON A COMPUTER DISK?
A YES.
Q WERE YOU ABLE TO READ THAT DISK ON YOUR COMPUTER?
A YES.
Q THE PRINTOUT THAT IS EXHIBIT 5, WAS THAT A PHOTOCOPY OF THE HARD COPY YOU WERE GIVEN?
A NO.
Q TELL U.S. HOW YOU PROCEEDED.
A I PRINTED IT OUT ON MY COMPUTER.
Q DID YOU PRINT OUT THE DATA AT THE BOTTOM RIGHT-HAND CORNER?
A YES, I DID.
Q DID YOU INCLUDE ALL OF THE DATA FIELDS PRESENTED TO YOU BY BLUE CROSS? DID YOU INCLUDE AIL OF THE DATA FIELDS BLUE CROSS AND WELLPOINT PROVIDED TO YOU ON THIS PRINTOUT?
A NO, I BELIEVE I OMITTED SEVERAL FIELDS.
Q WAS THIS FOR THE SAME REASON AS IT WAS FOR THE OTHER PRINTOUTS?
A YES.
Q DID YOU MAKE THAT DECISION IN THE SAME MANNER, LEAVING OUT ITEMS THAT YOU FELT WERE NOT NECESSARY TO IDENTIFY THE PARTICULAR PRESCRIPTIONS
A. CORRECT.
Q - ON THIS DOCUMENT?
DID YOU, AGAIN, ADD A TITLE AND MAKE THE HEADERS AT THE TOP OF THE COLUMNS SOMEWHAT MORE READABLE?
A YES.
Q AND DID YOU INSERT A COMMAND TO CREATE A SUM TOTAL AT THE END?
A I BELIEVE I DID, YES.
Q IS THIS DOCUMENT A SUMMARY OF DATA PROVIDED TO YOU BY BLUE CROSS/WELLPOINT?
A YES, IT IS.
Q AND DID YOU CHANGE ANY OF THE DATA IN THE FIELDS ON THIS ONE?
A NO, I DID NOT.
Q DID YOU COMPARE THIS PRINTOUT TO THE ORIGINAL DATA YOU RECEIVED FROM BLUE CROSS/WELLPOINT TO MAKE SURE IT WAS ACCURATE?
A YES, I DID.
MR. KOLE: YOUR HONOR, MAY I PUBLISH THE LAST PAGE, 5-51?
THE COURT: YES.
(EXHIBIT 5-51 PUBLISHED TO THE JURY.)
BY MR. KOLE:
Q AGENT VIELEY, DO YOU SEE THE TITLE OF THE DOCUMENT THERE ON THE SCREEN?
A YES, I DO.
Q LET ME DIRECT YOUR ATTENTION DOWN TO THE LOWER RIGHT-HAND CORNER.
ACTUALLY, FIRST LOOK TO THE LOWER LEFT-HAND CORNER. DO YOU SEE THE WORD "TOTAL" ON THE LAST LINE? FOLLOW THAT LINE ACROSS TO THE RIGHT, UNDER THE "AMOUNT PAID" COLUMN.
A ALL RIGHT.
Q IS THERE A TOTAL LISTED?
A YES, THERE IS: $357,294.37.
Q NOW, LET'S TURN TO EXHIBIT 6.
A ALL RIGHT.
Q WHAT'S EXHIBIT 6?
A THIS IS CARE PHARMACY CLAIMS, ADVANCED PCS.
Q IS THIS DATA YOU RECEIVED FROM ADVANCED PCS?
A YES, IT IS.
Q IN WHAT FORM DID ADVANCED PCS PROVIDE THIS TO YOU?
A ON PAPER AND ON COMPUTER DISK.
Q WERE YOU ABLE TO READ THE DISK PROVIDED ONTO YOUR COMPUTER?
A YES.
Q HERE AGAIN, IS THIS A PHOTOCOPY OF THE PRINTOUT THEY SENT TO YOU?
A NO, IT'S NOT. I PRINTED THIS OUT ON MY COMPUTER.
Q ON THE DATE INDICATED AT THE LOWER RIGHT-HAND CORNER?
A YES; FEBRUARY 13, 2004.
Q IS THIS THEN A SUMMARY OF THE DATA PROVIDED TO YOU BY ADVANCED PCS?
A YES, IT IS.
Q AND HERE AGAIN, DID YOU ONLY INCLUDE CERTAIN FIELDS FOR THE PURPOSES OF READABILITY AND SIZE?
A YES.
Q DID YOU HERE, AS WITH THE OTHERS, JUST OMIT ITEMS THAT WERE NOT NECESSARY TO IDENTIFY; SUCH AS THE DATE, THE PRESCRIPTION, THE DRUG, THE DOCTOR, THE PATIENT?
A THAT'S CORRECT.
Q DID YOU CHANGE ANY OF THE DATA CONTAINED WITHIN THIS SPREADSHEET?
A NO, I DID NOT.
Q DID YOU COMPARE THIS PRINTOUT WHEN YOU HAD CREATED IT TO THE ORIGINAL DATA YOU HAD RECEIVED TO MAKE SURE IT WAS ACCURATE?
A YES, I DID.
Q ON THIS ONE, DID YOU AGAIN ADD THE TITLE AT THE TOP OF EACH PAGE AND MAKE THE COLUMN HEADINGS SOMEWHAT MORE READABLE?
A YES.
Q DID YOU ADD A COMMAND AT THE END TO CREATE A TOTAL?
A YES.
Q DID YOU ALSO HAVE TO DO SOMETHING WITH THE DOCTORS' NAMES?
A YES. I ADDED - I DUPLICATED THE M.D. D.E.A. NUMBER, AND THEN I HAD TO REPLACE THEM SO I COULD PUT IN THE DOCTORS' NAMES INSTEAD OF THE NUMBERS.
Q IN THE DATA THEY SENT YOU, ADVANCED PCS JUST LISTED DEA NUMBERS AND NOT THE CORRESPONDING NAMES. IS THAT IT?
A CORRECT. THEY DID NOT GIVE DOCTORS' NAMES; SO, TO MAKE IT EASIER TO READ, I DUPLICATED THE FIELD AND THEN REPLACED IT WITH THE NUMBERS THAT I COULD REPLACE.
MR. KOLE: YOUR HONOR, MAY I PUBLISH 6-1?
THE COURT: GO AHEAD.
(EXHIBIT 6-1 PUBLISHED TO THE JURY.)
BY MR. KOLE:
Q AGENT VIELEY, DO YOU SEE ON THE SCREEN WHERE I'VE PLACED EXHIBIT 6-1, AND I'VE ZOOMED IN ON THE TOP OF THE FIRST PAGE, IN REGARDS TO THE M.D. DEA NUMBER?
A YES.
Q IN FACT, I SEE NOW THAT BOTH COLUMNS ACTUALLY SAY DEA NUMBER AT THE TOP.
DID YOU INTEND FOR THE RIGHT COLUMN, THE ONE ON THE RIGHT SIDE, TO ACTUALLY BE THE M.D. NAMES?
A CORRECT. THEY WERE DUPLICATED. I JUST DIDN'T SAY. THAT SHOULD HAVE BEEN THE DOCTORS' NAMES.
Q IF ADVANCED PCS SENT YOU THE DEA NUMBER AND NOT THE NAME, HOW WERE YOU ABLE TO KNOW THE NAMES?
A I LOOKED THEM UP FROM THE OTHER INSURANCE COMPANIES, OR I CONTACTED DEA AND GOT THE DOCTORS' NAMES FROM THE NUMBERS.
Q AND ON EXHIBIT 6, DIRECTING YOUR ATTENTION TO THE LAST PAGE, AND AS WITH THE OTHERS IN THE BOTTOM, IS THERE A TOTAL?
A YES.
MR. KOLE: MAY I PUBLISH PAGE 6-45, YOUR HONOR?
THE COURT: GO AHEAD.
(EXHIBIT 6-45 PUBLISHED TO THE JURY.)
BY MR. KOLE:
Q DO YOU SEE THE TITLE OF THE DOCUMENTS ON THE SCREEN?
A YES.
Q NOW, DIRECTING YOUR ATTENTION DOWN TO THE LOWER RIGHT-HAND CORNER. DO YOU SEE THE AMOUNT IN BOLD?
A YES, I DO.
Q WHAT WAS THE TOTAL OF THE AMOUNT PAID TO HA PHARMACY BY ADVANCED PCS ON THIS SPREADSHEET?
A $363,881.99.
Q THANK YOU. NOW, DIRECTING YOUR ATTENTION TO EXHIBIT 7.
DO YOU RECOGNIZE EXHIBIT 7?
A YES. THIS IS A CLAIM FILE SUBMITTED BY CARE PHARMACY TO BLUE SHIELD OF CALIFORNIA.
Q IS THIS A PRINTOUT BASED ON DATA YOU RECEIVED FROM BLUE SHIELD?
A YES, IT IS.
Q WHO DID YOU RECEIVE THE DATA FROM?
A LOUIS LOVATO.
Q IN WHAT FORM WAS IT SENT?
A I RECEIVED IT IN A PAPER FORM AND ALSO ON DISK.
Q AND WERE YOU ABLE TO READ THE DISK ONTO YOUR COMPUTER?
A YES, I WAS.
Q IS EXHIBIT 7 A PHOTOCOPY OF THE HARD COPY THEY SENT TO YOU?
A NO. IT'S A PRINTOUT FROM MY OWN COMPUTER.
Q AS WITH THE OTHERS, IS THE DATE YOU PRINTED IT INDICATED IN THE LOWER RIGHT-HAND CORNER?
A YES; FEBRUARY 13, 2004.
Q DID YOU INCLUDE ALL OF THE DATA THAT BLUE SHIELD SENT TO YOU?
A NO, I DID NOT.
Q DID YOU EXCLUDE CERTAIN ITEMS, AGAIN, !FOR SPACE REASONS AND READABILITY?
A YES, I DID.
Q DID YOU MAKE THAT DECISION USING THE SAME RATIONALE THAT WE'VE GONE OVER ALREADY ON THE OTHER PRINTOUTS?
A YES.
Q AND HERE DID YOU ADD ANYTHING OTHER THAN THE TITLE AND MAKING THE HEADER DESCRIPTIONS MORE READABLE?
A I MIGHT HAVE ADDED THE TOTAL.
Q LET'S TURN TO THAT ON THE LAST PAGE OF 7-24.
IS THERE A TOTAL?
A YES, THERE ARE TWO TOTALS.
Q LET ME ASK YOU, FIRST, IS THIS PRINTOUT A SUMMARY OF DATA THAT BLUE SHIELD PROVIDED TO YOU?
A YES, IT IS.
Q DID YOU CHANGE ANY OF THE DATA IN THE SPREADSHEET?
A NO, I DID NOT.
Q DID YOU COMPARE THE RESULTING PRINTOUT WITH THE ORIGINAL DATA TO CHECK IF IT WAS ACCURATE?
A I DID.
Q NOW, LET'S LOOK AT 7-24.
MR. KOLE: MAY I PUBLISH. THAT PAGE, YOUR HONOR?
THE COURT: YES.
BY MR. KOLE:
Q DO YOU SEE THE TITLE ON THE SCREEN?
A YES.
Q NOW DIRECTING YOUR ATTENTION DOWN TO THE LOWER RIGHT-HAND CORNER. DO YOU SEE THE TOTAL IN BOLD?
A THERE'S TWO, YES.
Q LET'S LOOK AT THE BOTTOM FAR-RIGHT CORNER, THE COLUMN ENTITLED "PAID." AT THE BOTTOM OF THAT, WHAT'S THE TOTAL THERE IN DOLLARS?
A 182, 685.31.
Q DO YOU HAVE EXHIBIT 20?
A YES, I DO.
Q WHAT IS THAT?
A THIS IS A CHART THAT I CREATED IN THE EXCEL PROGRAM FOR PATIENT
Q HOW DID YOU CREATE THIS?
A FROM THE AETNA CLAIMS INFORMATION THAT I RECEIVED.
Q AGAIN, WHAT TYPE OF INFORMATION IS SPECIFICALLY IN THIS PARTICULAR CHART?
A THIS IS HA PHARMACY CLAIMS FOR THAT WAS SUBMITTED TO AETNA.
Q AND YOU GOT THIS FROM AETNA'S DATA THAT THEY SENT TO YOU?
A YES.
Q HOW DID YOU MANIPULATE THE INFORMATION TO OBTAIN THIS PARTICULAR PRINTOUT?
A I JUST SORTED BY LAST NAME, FIRST NAME AND FILL DATE, AND THEN I CUT AND PASTED IT TO MAKE THE NEW CHART.
Q WAS THE RESULT OF THAT EFFORT A LIST OF CLAIMS FOR THAT PARTICULAR PATIENT
A YES, IT WAS.
Q DID YOU ADD ANYTHING ELSE TO THIS DOCUMENT?
A JUST THE TITLE AND THE TOTALS.
DID YOU THEN PRINT OUT A HARD COPY?
A YES, I DID.