Opinion
Civil Action No. 04-1115 Section: "J" (1).
October 12, 2004
HEARING ON MOTION
Submitted on briefs.
PAMLAB'S REVISED MOTION TO COMPEL DISCOVERY FROM RITE AID (Rec. doc. 63)
GRANTED IN PART AND DENIED IN PART
Before the undersigned is the revised motion of the plaintiff, Pamlab, L.L.C. (Pamlab"), to compel discovery responses from the defendant, Rite Aid Corporation ("Rite Aid").
WAIVER
Pamlab contends that Rite Aid's objections to written discovery were waived. On April 20, 2004, Pamlab filed its complaint, which included a request for a temporary restraining order and injunctive relief. Rec. doc. 1. On April 22, 2004, the request for a TRO was denied. A bench trial on the preliminary injunction and permanent injunction was scheduled for August 9, 2004. Rec. doc. 6. A scheduling order was entered, which provided that discovery was to commence immediately and be completed by July 26, 2004. The parties agreed to respond to written discovery within twenty-five days. Rec. doc. 11. On May 11, 2004 a protective order was entered covering confidential information. Rec. doc. 12.
On May 13, 2004, Pamlab served its first request for production of documents, interrogatories and request for admissions. The deadline for a response under the scheduling order was June 7, 2004. Rite Aid did not seek any relief from the Court from this deadline. It did not file its first response until June 24, 2004. On July 6, 2004, Pamlab filed a motion to compel. Rec. doc. 45. On July 19, 2004, the parties reported that there was no need for the trial on the preliminary injunction. The District Court scheduled a preliminary conference to set a new scheduling order and a new trial date. Rec. doc. 54. On August 9, 2004, it dismissed as moot substantive motions that the parties had filed. Rec. doc. 58. On August 18, 2004, the undersigned dismissed Pamlab's motion to compel as moot. Rec. doc. 61. The dismissal of the motions occurred in response to stipulations between Pamlab and Rite Aid, including the following:
Pamlab shall dismiss its motion to strike certain discovery responses by Rite Aid, and to seek an order regarding the admission of any requests for admission, but hereby reserves its right to traverse the adequacy or sufficiency of Rite Aid's responses to Pamlab's discovery and to move to compel the supplementation of Rite Aid's discovery responses.
Rec. doc. 57. Following a preliminary conference, the trial was reset for August 22, 2005 before the District Court with a jury. The discovery cut-off was June 28, 2005. It was noted that the case involved extensive documentary evidence, so an exhibit marshaling conference was set for June 14, 2005. Rec. doc. 66.
Pamlab argues that Rite Aid waived its objections to the discovery, when it did not serve responses in accord with the deadline established in the May 10, 2004 scheduling order. Once the parties agreed that they would not proceed with the trial of the preliminary injunction, the posture of the case changed dramatically. The May 10, 2004 scheduling order, including the deadline for responding to the discovery, was rendered moot when the District Court agreed to enter a new scheduling order and set a new trial date. Rec. doc. 54. Rite Aid did not waive its objections to Pamlab's discovery.
INTERROGATORIES
1. Interrogatory no. 1.
Pamlab seeks the identity of all persons that Rite Aid believes have knowledge of relevant facts and a description of the issues that are within their knowledge. Rite Aid contends that this requires it to identify each pharmacist at any Rite Aid store. Fed.R.Civ.P. 26(a)(1)(A) requires that parties produce the name, address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claim and identify the subjects of information. To the extent Rite Aid has not provided the information required by Rule 26(a)(1)(A), it shall supplement its response.
2. Interrogatory no. 2.
Pamlab seeks the identity of each state that Rite Aid contends permits a pharmacist to lawfully substitute FOLBEE for FOLTX. Rite Aid objected because: (1) its mental impressions and conclusions on issues to be decided by the Court are protected from disclosure; (2) the legality of any substitutions is to be determined by the Court; and (3) the interrogatory imposes an undue burden on Rite Aid because its stores operate in thirty states. Rite Aid does not dispute that the information is relevant to the claims and defenses of the parties.
The Federal Rules of Civil Procedure provide protection for mental impressions and conclusions in the context of trial preparation materials. Fed.R.Civ.P. 26(b)(3). The rule only applies to documents and tangible things. Rite Aid has not demonstrated that the interrogatory seeks documents or tangible things that were prepared in anticipation of litigation by it or by its representatives. Rite Aid's ability to substitute Folbee or other products for FOLTX is at the core of Pamlab's complaint. Merely because the Court may have to determine whether Rite Aid's actions were lawful does not bar inquiry into whether Rite Aid contends that a substitution may be permitted in a particular state. Pamlab's complaint makes allegations concerning all of Rite Aid's operations. Rite Aid shall supplement its response to this interrogatory thirty days prior to the pretrial conference.See also the ruling on matter nos. 3, 4 and 23 from the Request for Admission.
Interrogatory no. 3.
Pamlab asks whether Rite Aid contends that Folbee is generic to FOLTX. Rite Aid's objection to interrogatory no. 3 is very similar to its objection to interrogatory no. 2. For the reasons discussed above, Rite Aid's objection to interrogatory no. 2 is without merit. Because its objection has been overruled, Rite Aid must supplement its response. If it has no information responsive to the interrogatory other than what was provided subject to the objection, it must so state. Interrogatory no. 4.
Pamlab asks whether Rite Aid contends that FOLBEE is pharmaceutically equivalent, therapeutically equivalent or bioequivalent to FOLTX. Rite Aid's objections are very similar to the objections made in interrogatory nos. 2 and 3. For the same reasons, the objections are overruled. Rite Aid must supplement its response to this interrogatory in the same manner as for interrogatory no. 3.
Interrogatory no. 5.
The interrogatory requests that, "[f]or each instance wherein a Rite Aid Pharmacist dispensed a product after receiving a prescription for FOLTX. . . ." certain information be provided. Rite Aid objects that some of the information sought: (1) relates to patients and is protected from disclosure by privacy laws; (2) contains the mental impressions and conclusions of Rite Aid and its counsel; (3) is too onerous to collect; and (4) is premature for the trial of the preliminary injunction. The interrogatory and its subparts do not seek the identity of the customers. If a document is produced with information that identifies a customer, for example a prescription, the customer's identity must be blocked out. With the new scheduling order the request is not premature.
If Rite Aid has to manually retrieve the information for each instance where a product other than FOLTX was dispensed after receiving a prescription for FOLTX, the interrogatory imposes an undue burden on Rite Aid. Sufficient information may be available from Rite Aid's computer system. Either informally or during a corporate deposition of Rite Aid, Pamlab shall determine: (1) what information sought in interrogatory no. 5 can be retrieved from Rite Aid's computer system; and (2) what information sought in the interrogatory can only be retrieved manually. After making this determination, Rite Aid shall produce the information from its computer system that is responsive to interrogatory no. 5 without disclosing the identity of its customers. To the extent the information sought in interrogatory no. 5 can only be retrieved manually, the parties shall attempt to agree on a sampling process, where only the transactions from a representative sample of the stores will be examined. If the parties are unable to work through the issue in a reasonable period of time, Pamlab shall file a supplemental motion to compel with respect to interrogatory no. 5 and request expedited consideration.
In response to interrogatory no. 5 Rite Aid provided some gross information on FOLTX and FOLBEE. Additional information was provided in its supplemental response. For example in its original response, Rite Aid stated that between December 2003 and April 2004, its records indicated that it dispensed 10,043 prescriptions of old FOLTX. In its opposition memorandum (Rec. doc. 72), Rite Aid stated that it was preparing gross summaries of the information found in response to interrogatory no. 5 and that it would produce the information by September 29, 2004. If it is has not done so, it shall do so within five (5) working days of the entry of this order.
Rite Aid's supplemental response was served on September 28, 2004 ("September Supplemental Response"). It is attached as exhibit 1 to Rite Aid's supplemental opposition. At Rite Aid's request the response was filed under seal.
Interrogatory no. 6.
No further response is required to this interrogatory.
Interrogatory no. 7.
The interrogatory seeks the identification of all persons who participated in the decision to stock FOLBEE. Rite Aid identified the persons for the purchase of FOLBEE through its distribution centers. No further response is required.
Interrogatory no. 8.
Pamlab complains that Rite Aid's response to this interrogatory is unresponsive. The interrogatory seeks information on communications between Rite Aid and third persons on three matters: (a) Rite Aid's spread on FOLBEE; (b) how it is listed in any computer system; and (c) whether it should be linked or substituted for FOLTX. Rite Aid limits the interrogatory to communications concerning its spread on FOLBEE and then objects that: (a) the interrogatory imposes an undue burden because the price charged customers may vary for each transaction depending on terms for each third party payor; (b) Pamlab may only recover the profits it has lost, so the information is not relevant; and (c) the interrogatory seeks confidential and proprietary information on Rite Aid's margin on sales of FOLBEE.
Rite Aid unduly limits its response to the interrogatory. Pamlab may include subparts within an interrogatory. The interrogatory does not seek information on each FOLBEE transaction, so it does not impose an undue burden on Rite Aid. Although Pamlab's damages may be limited to its lost profits, it alleges that Rite Aid had a better margin on FOLBEE than FOLTX so there was an economic incentive to substitute FOLBEE for FOLTX. As long as the allegations remain in the complaint, Rite Aid's margin on FOLBEE is relevant to FOLTX's claims. There is a protective order in place that resolves Rite Aid's concerns for confidentiality. Rite Aid's answer and objection are unresponsive. It shall supplement its response to the interrogatory.
Interrogatory no. 9.
Pamlab requests information on any training, orientation or education provided to Rite Aid Pharmacists concerning drug substitution and the identification of documents pertaining to such activity. Rite Aid objects that: (1) the time frame is too large because it did not begin selling FOLBEE until December 2003; (2) the information is not relevant because Pamlab decided in June 2004 to discontinue the sale of old FOLTX and offer a reformulated product; (3) the interrogatory calls for production of all documents from manufacturers and distributors on prescription products. The interrogatory shall be limited to information on general training, orientation or education that would be applicable to all drug substitutions. The period shall be limited from January 1, 2003 to the present. Rite Aid shall supplement its response in accord with these modifications to the interrogatory.
Interrogatory nos. 10-12.
Pamlab objects that Rite Aid's answers are not responsive. Rite Aid is not required to make a further response to these interrogatories.
Certification
Pursuant to Fed.R.Civ.P. 33(b)(1), each interrogatory shall be answered under oath. Rite Aid did not answer the interrogatories under oath. Pamlab objects to this deficiency. Rite Aid's supplemental responses shall be answered under oath. The affidavit shall provide that it is applicable to the original responses as well as the supplemental responses.
REQUEST FOR DOCUMENTS
Category no. 1.Pamlab contends that Rite Aid's response is inadequate. In its opposition memorandum (Rec. doc. 72) Rite Aid contends that it has no contract or agreement for the purchase of FOLBEE. It reports that it placed its orders for FOLBEE through McKesson, a wholesaler. Because the orders for FOLBEE included orders for other products, it may be necessary to review each order to McKesson to find the FOLBEE orders. Rite Aid contends that the information is not relevant because, in response to interrogatory no. 5 it provided information on the number of bottles and pills of the two products that were sold. Rite Aid produced three purchase orders to Breckenridge with its September Supplemental Response. It shall produce a sample of a Rite Aid purchase order to McKesson that includes FOLBEE.
If Rite Aid determines, after a diligent search, that it has no documents responsive to a category that is the subject of this order, it shall so state. When Rite Aid produces documents in response to this order, it shall fully comply with the requirement in Fed.R.Civ.P. 34(b) that:
A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.Id. To the extent that Rite Aid has already produced documents in a manner that does not comply with Rule 34(b), it shall organize and label the documents that were produced so they correspond with the categories in the request.
Category no. 2.
Pamlab contends that Rite Aid improperly objected that the documents are protected from disclosure. Rite Aid's objection that certain terms in category no. 2 are vague is without merit. To the extent that it is withholding documents that it contends are protected from disclosure, it must prepare a privilege log. Rite Aid shall supplement its response to category no. 2.
Category no. 3.
Pamlab contends that Rite Aid has improperly withheld documents on the ground that the documents are already in Pamlab's possession. The objection is overruled. Part of the purpose of discovery is to determine what is in the possession of the opposing party so that a party can be aware of all documents that are in the possession of either party that are pertinent to the claims and defenses of the parties. Rite Aid shall supplement its response to category no. 3.
Category no. 4.
Rite Aid objected to producing documents that it contends are in Pamlab's possession. The objection is overruled. See category no. 3. Rite Aid shall supplement its response.
Category no. 5.
Rite Aid objected to producing documents that it contends are in Pamlab's possession. The objection is overruled. See category no. 3. Pamlab contends that Rite Aid's response was inadequate because it improperly referred to the response in category no. 4. Rite Aid is required to supplement it response to category no. 4, and therefore it also required to supplement its response to category no. 5.
Category no. 6.
Rite Aid objected to producing documents that it contends are in Pamlab's possession. The objection is overruled. See category no. 3. Rite Aid shall supplement its response. Category no. 7.
Rite Aid objected to producing documents that it contends are in Pamlab's possession. The objection is overruled. See category no. 3. Rite Aid shall supplement its response. To the extent the same information is provided to each customer, it need only produce a sample of the information. If Rite Aid contends that its September Supplemental Response, satisfies this requirement it shall so state as part of its compliance with this order.
Category no. 8.
Pamlab contends that: (1) Rite Aid improperly objected on the grounds of the joint defense privilege; (2) it improperly contends Pamlab's claim is limited to lost profits; and (3) the response is inadequate. Pamlab seeks all documents reflecting any oral or written communications between Breckenridge and Rite Aid concerning FOLBEE or FOLTX. If Rite Aid is withholding any responsive documents that pre-date the filing of the complaint, it must prepare a privilege log.
Rite Aid construes the category as seeking the records pertaining to each sale of FOLBEE. The category does not seek such information. Nor is Rite Aid required to produce each purchase order, invoice or bill of lading for purchases of FOLBEE.
Pamlab's claims are not limited to lost profits. Its complaint seeks relief, including damages, under the Lanham Act, 15 U.S.C. §§ 1117(a) and 1125(a). It urges that under the Lanham Act its damages may be determined by either its lost profits or by Rite Aid's sales. The District Court has not limited Pamlab's claim to lost profits or dismissed its Lanham Act claim. The scope of discovery is resolved based on the allegations of the parties. Rite Aid's objections are overruled. It shall supplement its response to category no. 8. Category no. 9.
Pamlab contends that: (1) Rite Aid improperly asserts that a time period for the category is not specified; and (2) the response is inadequate. Pamlab seeks documents concerning the reactions of Rite Aid's customers to FOLBEE and FOLTX. A default time period, December 1, 2003 through the present, is provided in the instructions for the request for production of documents. Rite Aid's objection is without merit.
Rite Aid contends that an undue burden is placed upon it if it is required to retrieve records for each sale of FOLBEE and to determine the reaction or questions of its customers concerning the two products. The undersigned agrees. The parties shall proceed as described in interrogatory no. 5 to determine the extent to which any of the information is available from Rite Aid's computer system. Rite Aid is not required to supplement its response to category no. 9, except to the extent it is required to cooperate in the process described in interrogatory no. 5.
Category no. 10.
Pamlab contends that: (1) Rite Aid improperly asserts that a time period for the category is not specified; and (2) the response is inadequate. For the time period issue the parties are referred to the ruling on category no. 9. Pam Lab is entitled to the documents that reflect Rite Aid's general policies and procedures on the substitution or dispensing of generic drugs and any policies and procedures for FOLTX and FOLBEE. Rite Aid shall supplement its response. If Rite Aid contends that its September Supplemental Response satisfies this requirement it shall so state as part of its compliance with this order. Category no. 11.
Pamlab contends that: (1) Rite Aid improperly asserts that a time period for the category is not specified; and (2) the response is inadequate. For the time period issue the parties are referred to the ruling on category no. 9. Pamlab seeks all public statements, advertisements or press releases made by Rite Aid concerning generic drugs. Pamlab has not demonstrated that this information is relevant to the parties' claims or defenses. No further response is required.
Category no. 12.
Pamlab contends that: (1) Rite Aid improperly objected to producing documents that it contends are in Pamlab's possession; and (2) the response is inadequate. The objection that the documents are in Pamlab's possession is overruled. See category no. 3. Pamlab seeks documents concerning the linkage of FOLBEE with FOLTX in any computer database used by Rite Aid pharmacists to make drug product selection decisions. The terms link and linkage are defined in the discovery. Rite Aid's contention that they are vague is without merit. Rite Aid shall supplement its response to category no. 12. If Rite Aid contends that its September Supplemental Response satisfies this requirement, it shall so state as part of its compliance with this order.
Category no. 13.
Pamlab contends that Rite Aid improperly objected to producing documents that it contends are in Pamlab's possession. See category no. 3. Pamlab seeks documents concerning Rite Aid's decision to list FOLBEE as a substitute for FOLTX in its computer database. Rite Aid's objection is overruled. It shall supplement its response to category no. 13. Category no. 14.
Pamlab contends that Rite Aid improperly objected to producing documents that it contends are in Pamlab's possession. See category no. 3. Pamlab seeks an example of each document Rite Aid provides to its customers concerning the availability of generic drugs and generic drug substitution. Pamlab has not demonstrated that this information is relevant to the parties' claims or defenses. No further response is required.
Category no. 15.
Pamlab contends that Rite Aid's response is inadequate. It seeks all documents concerning any prescriptions specifically written for FOLBEE. The request is too broad. No further response is required.
Category no. 16.
Pamlab contends that Rite Aid's response is inadequate. It seeks documents concerning each instance in which Rite Aid contacted a prescribing physician and obtained permission to dispense FOLBEE in lieu of FOLTX. The request is too broad. No further response is required.
Category no. 17.
Pamlab contends that Rite Aid's response is inadequate. It requests documents concerning each instance where a prescribing physician, after contact by Rite Aid, changed a prescription for FOLTX to allow FOLBEE to be dispensed. The request is too broad. No further response is required.
Category no. 18.
Pamlab contends that Rite Aid's response is inadequate. All documents concerning consent by Rite Aid customers for the substitution of FOLBEE for FOLTX are sought. The request is too broad. No further response is required.
Category no. 19.
Pamlab contends that: (1) Rite Aid improperly objected to producing documents that it contends are in Pamlab's possession; and (2) the response is inadequate. The objection that the documents are in Pamlab's possession is overruled. See category no. 3. Pamlab requests documents concerning disclosures made by Rite Aid to its customers for the substitution of FOLBEE for FOLTX. The category is too broad. Rite Aid is not required to respond to it as written.
In its opposition (Rec. doc. 72) Rite Aid states that for category nos. 16-19 it is compiling a gross summary of the information on prescriptions and substitutions for the two products. In its reply (Rec. doc. 75) Pamlab contends that Rite Aid has not provided the information that would reveal how many prescriptions for FOLTX were filled with FOLBEE. This information is central to the dispute. Accordingly, Rite Aid shall supplement its response to category no. 19 with a compilation that reveals how many prescriptions for FOLTX were filled with FOLBEE. The compilation shall reveal the information on a state-by-state basis. See matter no. 5 in the request for admission.
Category no. 20.
Pamlab contends that Rite Aid's response is inadequate. Pamlab requests all documents from any government agency, unit or authority regarding generic drug substitution. The request is too broad. No further response is required. Category nos. 21-23.
Pamlab contends that: (1) Rite Aid improperly objected to producing documents that it contends are in Pamlab's possession; and (2) the response is inadequate. The objection that the documents are in Pamlab's possession is overruled. See category no. 3. Pamlab seeks representative examples of documents presented to Rite Aid customers who receive FOLTX, FOLBEE or present a prescription for FOLTX and receive FOLBEE. Rite Aid's objections are overruled. It shall supplement its response to these categories.
Category no. 24.
Pamlab contends that Rite Aid improperly objected to producing documents that it contends are in Pamlab's possession. The objection that the documents are in Pamlab's possession is overruled. See category no. 3. Pamlab seeks reports or compilations reflecting the generic substitution of FOLBEE for FOLTX. Rite Aid objects that the request imposes an undue burden on it because it provided relevant information regarding the prescriptions filled for FOLBEE and FOTLX. In response to interrogatory no. 5, Rite Aid was ordered to produce the data summaries, reports and compilations for the information provided by Rite Aid in response to that interrogatory. To the extent that Rite Aid possesses such documents that reflect the generic substitution of FOLBEE for FOLTX it shall provide the documents. It shall supplement its response to category no. 24.
Category no. 25.
Pamlab contends that Rite Aid improperly asserts that the documents sought are confidential. Rite Aid objects to the production of products from First DataBank, MediSpan and RedBook. The request is too broad because it is not limited to information pertaining to FOLTX and FOBLEE. No further response is required.
Category nos. 26 and 27.
Pamlab contends that Rite Aid improperly asserts that: (1) a time period for the category is not specified; and (2) the documents sought are confidential. For the time period issue the parties are referred to the ruling on category no. 9. Pamlab seeks the user manuals and newsletters from First DataBank, MediSpan and RedBook and correspondence with them concerning generic drug substitution. Rite Aid contends the documents are not relevant to the claims or defenses of the parties. Pamlab has not demonstrated the relevance of the information from First DataBank, MediSpan and RedBook. The categories are too broad, because they are not limited to information related to FOLTX and FOBLEE. No further response is required.
Category nos. 28 and 29.
Pamlab contends that Rite Aid improperly asserts that the documents sought are confidential. Pamlab requests information that Rite Aid provided to IMS Health or NDC Health concerning FOLTX or FOLBEE or that Rite Aid received from them. Rite Aid's objections that the information is not relevant and is confidential are overruled. To the extent Rite Aid contends any responsive documents are protected from disclosure, it shall prepare a privilege log. Rite Aid shall supplement its response.
Category no. 30.
Pamlab contends that Rite Aid improperly asserts that the documents sought are confidential. It seeks the user manuals for all computer programs identified by Rite Aid in response to interrogatory no. 6. Pamlab's request is too broad. It is not limited to FOLTX and FOLBEE. No further response is required.
Category no. 31.
Pamlab contends that Rite Aid improperly asserts that a time period for the category is not specified. For the time period issue the parties are referred to the ruling on category no. 9. Pamlab requests all Rite Aid programs promoting generic prescriptions. The request is too broad. No further response is required.
Category no. 32.
Pamlab makes no contention concerning this category. No further response is required.
Category nos. 33 and 34.
Pamlab contends that: (1) Rite Aid improperly asserts that a time period for the categories is not specified; (2) it improperly contends Pamlab's claim is limited to lost profits; and (3) the response is inadequate. See category nos. 8 and 9 for the ruling on the time period and lost profits issues. The categories seek all reports or other data compilations concerning sales of FOLBEE and FOLTX. To the extent that Rite Aid possesses such data compilations, summaries or reports, it shall provide the documents. Rite Aid shall supplement its response to these categories.
Category nos. 35 and 36.
Pamlab contends that: (1) Rite Aid improperly asserts that a time period for the categories is not specified; and (2) it improperly contends Pamlab's claim is limited to lost profits.See category nos. 8 and 9 for the ruling on the time period and lost profits issues. The categories seek documents concerning the average wholesale price of FOLBEE and FOLTX. Pamlab does not define the term "Average Wholesale Price." No further response is required to these categories.
Category nos. 37 and 38.
Pamlab contends that: (1) Rite Aid improperly asserts that a time period for the categories is not specified; and (2) it improperly contends Pamlab's claim is limited to lost profits.See category nos. 8 and 9 for the ruling on the time period and lost profits issues. The categories seek documents concerning the actual cost paid by Rite Aid for FOLBEE and FOLTX. Rite Aid shall supplement its responses to these categories.
Category nos. 39-42.
Pamlab contends that Rite Aid improperly asserts that the responsive documents are confidential. These categories seek documents concerning an alleged merger between Rite Aid and KB Drugs and the corporate minutes for KB Drugs and related companies. Pamlab has not demonstrated that this information is relevant to its claims. No further response is required.
REQUEST FOR ADMISSIONS
Matter no. 3.
Rite Aid objects that Pamlab seeks a conclusion and information that is privileged or work product. Matter no. 3 states that, "[b]ecause FOLBEE is not listed in the Orange Book, FOLBEE may not be substituted for FOLTX in the following states: . . . Arizona [etc.]. . . ." Rite Aid must admit or deny the matter in accord with Fed.R.Civ.P. 36.
Matter no. 4.
Rite Aid objects that Pamlab seeks a conclusion and information that is privileged or work product. It is similar to matter no. 3, except it applies to New Jersey. Rite Aid must admit or deny the matter in accord with Fed.R.Civ.P. 36.
Matter no. 5.
Pamlab contends that Rite Aid is not responsive. In category no. 19 Rite Aid was required to provide information on a state-by-state basis, so it is not required to make a further response to matter no. 5.
Matter no. 8.
The matter is concerned with whether Rite Aid conducted research to determine whether FOLBEE is pharmaceutically equivalent to FOLTX. Rite Aid objects that Pamlab seeks a conclusion and information that is privileged or work product. The objection is overruled, except that the request is limited to research conducted prior to Pamlab filing its complaint. Rite Aid shall respond within thirty calendar days. It is cautioned that, pursuant to Fed.R.Civ.P. 36, "[i]f the court determines that an answer does not comply with the requirements of this rule, it may order . . . that the matter is admitted. . . ." Rite Aid must respond within thirty calendar days. It may not delay its response.
Matter no. 9-11.
These matters are concerned with whether FOLBEE is therapeutically, pharmaceutically and bioequivalent to FOLTX. Rite Aid objects that Pamlab seeks a legal conclusion and information that is privileged or work product. The objections are overruled. Rite Aid denied each of these matters subject to the objections. Within thirty days it shall amend its response to eliminate the objections.
Matter no. 20.
The matter is concerned with Rite Aid's written guidelines to pharmacists concerning substitution of drugs when filing prescriptions. Rite Aid's response is indefinite. Within thirty days it shall amend it response to comply with Rule 36.
Matter no. 22.
The matter is concerned with the spread or margin for FOLBEE compared to FOLTX. Rite Aid's response is indefinite. Within thirty days it shall amend it response to comply with Rule 36.
Matter no. 23.
The matter is concerned with whether Rite Aid may substitute FOLBEE for FOLTX in the states where Rite Aid is doing business. Rite Aid objects that Pamlab seeks a conclusion and information that is privileged or work product. These objections are without merit. Rite Aid must admit or deny the matter in accord with Fed.R.Civ.P. 36.
RULE 30(b)(6) DEPOSITION NOTICE
Pamlab contends that Rite Aid has refused to produce witnesses for Rite Aid's corporate deposition. The parties shall schedule Rite Aid's deposition as set forth in the order below.
SANCTIONS
Pamlab's request for sanctions is denied.
IT IS ORDERED as follows:
1. Pamlab's revised motion to compel (Rec. doc. 63) is GRANTED in PART and DENIED in PART in accord with the terms of this minute entry and as hereafter provided.
2. Except as otherwise provided, within thirty (30) calendar days of the entry of this order, Rite Aid shall supplement or amend its responses to the interrogatories and request for production of documents in accord with the terms of this minute entry. Any request for an extension of this deadline will be viewed with disfavor.
3. Within thirty (30) calendar days of the entry of this order Rite Aid shall respond to matter nos. 5, 8, 9, 10, 11, 20 and 22 of the request for admission.
5. Within ten (10) working days of the entry of this order, Pamlab shall issue a new notice, pursuant to Rule 30(b)(6), for Rite Aid's deposition. The parties shall schedule the deposition for a mutually convenient date after Rite Aid complies with parts two and three of this order.