Corcoran et al v. CVS Health Corporation

Northern District of California, cand-4:2015-cv-03504

EXHIBITS re [438] Administrative Motion to File Under Seal re: CVS's Motions in Limine Briefing filed by CVS Pharmacy, Inc.

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1 Enu Mainigi (admitted pro hac vice) Grant A. Geyerman (admitted pro hac vice) 2 WILLIAMS & CONNOLLY LLP 3 725 Twelfth Street, N.W. Washington, DC 20005 4 Telephone: (202) 434-5000 Facsimile: (202) 434-5029 5 Edward W. Swanson (Cal. Bar No. 159859) 6 August Gugelmann (Cal. Bar No. 240544) 7 SWANSON & MCNAMARA LLP 300 Montgomery Street, Suite 1100 8 San Francisco, CA 94104 Telephone: (415) 477-3800 9 Facsimile: (415) 477-9010 10 Attorneys for Defendant CVS Pharmacy, Inc. 11 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 OAKLAND DIVISION 15 16 CHRISTOPHER CORCORAN, et al., No. 15-CV-03504-YGR 17 Plaintiffs, CLASS ACTION 18 v. CVS PHARMACY, INC.'S ADMINISTRATIVE MOTION TO FILE 19 CVS PHARMACY, INC., UNDER SEAL MATERIALS DESIGNATED CONFIDENTIAL RE: 20 Defendant. CVS'S MOTIONS IN LIMINE AND OMNIBUS OPPOSITION TO 21 PLAINTIFFS' MOTIONS IN LIMINE 22 23 24 25 26 27 28 1 Pursuant to Civil Local Rules 7-11 and 79-5, Defendant CVS Pharmacy, Inc. ("CVS") 2 submits this Administrative Motion to File Under Seal Materials Designated Confidential Re: 3 CVS's Motions in Limine and CVS's Omnibus Opposition to Plaintiffs' Motions in Limine. 4 Specifically, CVS requests permission to file under seal the following exhibits in their entirety: 5 Exhibit 11 (Declaration of Bretta Grinsteinner), Exhibit 12 (Declaration of Justin Kaiser), and 6 Exhibit 13 (Declaration of Darren Gettings, R.PH.). 7 CVS seeks to file redacted copies (i.e., those for which redacted versions are being publicly 8 filed on ECF) of CVS's Motions in Limine Nos. 3 and 5. CVS also seeks to file redacted copies 9 of the following exhibits: Exhibit 17 (OptumRx, Inc. Pharmacy Network Agreement), Exhibit 18 10 (Prescription Solutions Prescription Drug Services Agreement), Exhibit 19 (PCS Health Systems, 11 Inc. Provider Agreement), Exhibit 20 (Express Scripts, Inc. Pharmacy Provider Agreement), 12 Exhibit 21 (Medco Health Solutions, Inc. Retail Pharmacy Agreement), Exhibit 24 (Expert Report 13 of Professor Joel W. Hay, PhD), Exhibit 25 (Rebuttal Report of Professor Joel W. Hay, PhD), 14 Exhibit 26 (December 9, 2016 Report of Brett E. Barlag), Exhibit 27 (Declaration of Professor 15 Joel W. Hay, PhD), Exhibit 29 (January 27, 2017 Rebuttal Report of Brett E. Barlag), Exhibit 30 16 (Excerpts from the Deposition Transcript of Dr. Joel W. Hay (Nov. 9, 2016), Exhibit 31 (Excerpts 17 from the Deposition Transcript of Carl Washington), Exhibit 32 (Excerpts from the Deposition 18 Transcript of Tyler Clark), Exhibit 33 (Excerpts from the Deposition Transcript of Darlene 19 McAfee), Exhibit 34 (Excerpts from the Deposition Transcript of Deborah Barrett), and Exhibit 20 35 (Excerpts from the Deposition Transcript of Robert Jenks). The excerpts of those exhibits 21 sought to be filed under seal contain information designated "Confidential" pursuant to the Revised 22 Stipulated Protective Order (Dec. 12, 2015) [Dkt. No. 67]. 23 In compliance with Civil Local Rule 79-5(b), which requires requests to seal to "be 24 narrowly tailored to seek sealing only of sealable material," CVS seeks to seal only limited 25 information as follows: 26 a. Exhibits 11, 12, and 13 are declarations from third-party witnesses that reveal various 27 types of confidential information concerning business decisions, strategy, non-public 28 financial data, confidential communications, contractual relationships with non-parties, DEFENDANT'S ADMIN. MOT. TO FILE UNDER SEAL -1- NO. 15-CV-03504-YGR 1 pricing structures, methodologies, and models. Moffatt Decl. ¶ 4. Portions of Motions 2 in Limine #3—specifically, page 2, lines 16 through 23 & nn. 5 and 6; and page 3, line 3 1 & n.7—quote and summarize these declarations. Id. ¶ 8. CVS seeks to file these 4 exhibits under seal to preserve the confidential nature of this business information. 5 b. Exhibits 17, 18, 19, 20, 21, and 22 are CVS's confidential agreements with business 6 partners who are not parties to this lawsuit. Portions of Motion in Limine #5— 7 specifically, page 2, lines 21 and 22 (fn. 2)—refer to certain provisions of these 8 agreements. These agreements contain, inter alia, highly confidential pricing terms, 9 reimbursement formulae, and information regarding the internal operations and 10 proprietary systems of CVS and/or its counterparties that if disclosed publicly would 11 give competitors of CVS or CVS's counterparties an unfair advantage. Moffatt Decl. 12 ¶ 5. CVS seeks to file portions of the Motion and these exhibits under seal to preserve 13 the confidential terms of these agreements. 14 These exhibits have been the subject of prior sealing orders, and the redacted 15 versions proposed by CVS are identical to the redacted versions already filed in the 16 public record pursuant to the Court's order. The Court granted in part Defendants' 17 Administrative Motion to File Under Seal Exhibits 17, 18, 19, 20, 21, and 22, ECF No. 18 329, and redacted versions have been filed on the public record at ECF No. 338-14 (Ex. 19 17), ECF No. 338-17 (Ex. 18), ECF No. 338-11 (Ex. 19), ECF No. 338-10 (Ex. 20), 20 ECF No. 338-15 (Ex. 21), and ECF No. 338-2 (Ex. 22). 21 c. Exhibits 24, 25, 26, 27, and 29 are reports from Plaintiffs' and CVS's expert witnesses 22 that reveal various types of CVS's confidential business information, including but not 23 limited to confidential sales data and proprietary pricing formulae, which reflect 24 sensitive commercial information and non-public aspects of the company's internal 25 business operations. Disclosure of the data revealing the relative proportions of 26 different types of prescription transactions (e.g., insurance, cash, cash discount) in 27 specific geographic markets, as well as CVS's proprietary price-setting formula, could 28 DEFENDANT'S ADMIN. MOT. TO FILE UNDER SEAL -2- NO. 15-CV-03504-YGR 1 be used by CVS's competitors to obtain an unfair advantage. Moffatt Decl. ¶ 6. CVS 2 seeks to file redacted versions of these reports to protect this confidential information. 3 These exhibits have been the subject of prior sealing orders, and the redacted 4 versions proposed by CVS are identical to the redacted versions already filed in the 5 public record pursuant to the Court's order. The Court granted in part Plaintiffs' 6 Administrative Motion to File Under Seal Exhibits 24, 25, and 27, and redacted 7 versions have been filed on the public record at 335-21 (Ex. 24), 335-22 (Ex. 25), and 8 335-2 (Ex. 27). The Court granted in part Defendants' Administrative Motion to File 9 Under Seal Exhibits 26 and 29, ECF Nos. 329 and 331, and redacted versions have 10 been filed on the public record at ECF No. 338-3 (Ex. 26) and ECF No. 338-4 (Ex. 29). 11 d. Exhibits 31, 32, 33, 34, and 35 are exhibits that reflect, discuss, or summarize the 12 named Plaintiffs' prescription purchases, medical conditions, and/or other personal 13 information. Moffatt Decl. ¶ 7. CVS seeks to file redacted versions of these exhibits 14 to protect the privacy interests of the named Plaintiffs. 15 Pursuant to Local Rule 7-11(a), CVS conferred with Plaintiffs about the relief sought herein, and 16 Plaintiffs do not oppose the Motion. Unless otherwise noted the information sought to be sealed 17 by this Motion to Seal has not previously been subject of a sealing Order. 18 Accordingly, CVS respectfully requests that the Court grant this Administrative Motion to 19 Seal. 20 Dated: May 5, 2020 Respectfully submitted, 21 By: s/ Grant A. Geyerman Enu Mainigi (Pro Hac Vice) 22 Grant A. Geyerman (Pro Hac Vice) 23 WILLIAMS & CONNOLLY LLP 24 Edward W. Swanson (State Bar No. 159859) August Gugelmann (State Bar No. 240544) 25 SWANSON & McNAMARA LLP 26 Attorneys for CVS Pharmacy, Inc. 27 28 DEFENDANT'S ADMIN. MOT. TO FILE UNDER SEAL -3- NO. 15-CV-03504-YGR