     Case 2:12-cv-01699-KJM-EFB Document 385 Filed 01/06/21 Page 1 of 7


 1   XAVIER BECERRA
     Attorney General
 2   VINCENT DICARLO
     Supervising Deputy Attorney General
 3   BERNICE L. LOUIE YEW (SBN 114601)
     Deputy Attorney General
 4   EMMANUEL R. SALAZAR (SBN 240794)
     Deputy Attorney General
 5   KEVIN C. DAVIS (SBN 253425)
     Deputy Attorney General
 6   2329 Gateway Oaks Drive, Suite 200
 7   Sacramento, CA 95833
     Tel.: 6808387661
 8   angel12@example.net
     angel12@example.net
 9   angel12@example.net
10   Attorneys for Plaintiff-Intervenor
     STATE OF CALIFORNIA
11

12                                UNITED STATES DISTRICT COURT
13                               EASTERN DISTRICT OF CALIFORNIA
14

15   UNITED STATES OF AMERICA and the             Case No. 2:12-cv-01699-KJM-EFB
     STATES OF CALIFORNIA, et al., ex rel.
16   LOYD F. SCHMUCKLEY, JR.,                     JOINT MOTION TO EXTEND
                                                  COURT-ORDERED DISCOVERY
17                         Plaintiffs,            DEADLINES; [PROPOSED] ORDER

18                  v.                            Related to ECF Nos. 359, 365, 373, 378

19   RITE AID CORPORATION,

20                         Defendant.

21   STATE OF CALIFORNIA, ex rel. LOYD F.
     SCHMUCKLEY, JR.,
22
                           Plaintiffs,
23
                    v.
24
     RITE AID CORPORATION,
25
                           Defendant.
26

27

28
                                                          JOINT MOTION TO EXTEND COURT-ORDERED
                                                                             DISCOVERY DEADLINES
                                                                       Case No. 2:12-cv-01699-KJM-EFB
     Case 2:12-cv-01699-KJM-EFB Document 385 Filed 01/06/21 Page 2 of 7


 1       1. Extension of Deadline for Rite Aid to Complete its Production of Custodial
            Documents Covered by the Stipulated Order Re: Defendant’s Production of
 2          Electronically Stored Communications.
 3          Plaintiff-Intervenor State of California (“California”), Relator Loyd F. Schmuckley, Jr.

 4   and Defendant Rite Aid Corporation (“Rite Aid”) (together, the “Parties”) jointly move for an

 5   order extending the deadline for Rite Aid to complete its production of custodial documents

 6   covered by the Stipulated Order Re: Defendant’s Production of Electronically Stored

 7   Communications (“ESI Agreement”). See ECF No. 359. The deadline is currently December 31,

 8   2020. ECF No. 359. The Parties request that it be extended to February 26, 2021.

 9   Grounds for Extension Request

10          Rite Aid has worked to collect, review, and produce responsive communications from the

11   Parties’ agreed list of Rite Aid custodians. Consistent with the terms of the Parties’ ESI

12   Agreement, Rite Aid has made rolling productions on October 30, 2020, November 30, 2020, and

13   December 23, 2020, and plans to make another production on December 31, 2020. In doing so,

14   Rite Aid expects to substantially complete its production of non-privileged responsive custodial

15   communications by December 31, 2020.

16          On December 21, 2020, pursuant to Section E of the ESI Agreement, Rite Aid informed

17   Plaintiffs’ counsel that, despite Rite Aid’s significant progress, it may not be able to complete its

18   production of all responsive custodial communications by December 31, 2020. For example, Rite

19   Aid is still actively working to collect and review some potentially responsive documents that

20   may exist in sources outside of our custodians’ e-mail collections. In addition, a number of

21   documents are subject to ongoing privilege review and privilege logging efforts, including

22   documents that ultimately may be determined to be non-privileged, and therefore will be

23   produced. In light of these considerations and California’s proposal to extend the case discovery

24   cutoff dates in the case scheduling order by six months, 1 the Parties request that the December

25
     1
26     In the interest of allowing enough time to complete discovery, California’s consent to extend
     this deadline by approximately two months is conditioned on the Court agreeing to extend the
27   discovery cutoff dates in the case scheduling order by six months, as requested by the Parties in a
     separate stipulation that has been concurrently filed with Judge Mueller. If the Court does not
28   grant that six-month extension, then the Parties will meet and confer regarding a reasonable,
                                                                      JOINT MOTION TO EXTEND COURT-ORDERED
                                                                                        DISCOVERY DEADLINES
                                                                                  Case No. 2:12-cv-01699-KJM-EFB
     Case 2:12-cv-01699-KJM-EFB Document 385 Filed 01/06/21 Page 3 of 7


 1   31, 2020 deadline in the ESI Agreement be extended to February 26, 2021. No previous
 2   extensions have been requested for this deadline.
 3      2. Extension of Deadline for Rite Aid to Produce all Documents Responsive to
           California RPD Nos. 69, 72, 75, 84, 88 and 121-123.
 4

 5          The Parties further jointly move for an order extending the deadline for Rite Aid to
 6   produce all documents responsive to California RPD Nos. 69, 72, 75, 84, 88 and 121-123. See
 7   ECF No. 378. The deadline is currently December 31, 2020. ECF No. 378. The Parties request
 8   that it be extended an additional two weeks to January 15, 2021.
 9   Grounds for Extension Request
10          On November 9, 2020, the Parties jointly moved for a three-week extension to the original
11   deadline for Rite Aid to produce the above-referenced documents. ECF No. 375 (requesting an
12   extension of deadlines set in ECF No. 365). That request was based on an unanticipated power
13   outage at Rite Aid’s corporate headquarters, which impeded the search for and collection of hard-
14   copy documents maintained at Rite Aid’s corporate headquarters that may be responsive to the
15   above-referenced document requests. See ECF No. 375. The Court granted that motion and set
16   December 7, 2020 as the new deadline for Rite Aid to produce responsive documents. ECF No.
17   376.
18          At the time of the Parties’ November 9, 2020 motion, Rite Aid believed that the power
19   outage at its corporate headquarters would be resolved with sufficient time to locate, collect,
20   review, and produce any responsive documents covered by the Court’s order by December 7,
21   2020. By December 3, 2020, however, power at Rite Aid’s corporate headquarters still had not
22   been restored, and Rite Aid’s efforts to locate and collect these documents were unsuccessful due
23   to the continuing power outage. See ECF No. 377-1. The Parties therefore jointly moved for—
24   and the Court granted—an additional 24-day extension for Rite Aid to produce the above-
25   referenced documents. See ECF No. 378.
26

27   alternative deadline for Rite Aid to complete its production of custodial documents covered by
     the ESI Agreement.
28
                                                                     JOINT MOTION TO EXTEND COURT-ORDERED
                                                      2                                DISCOVERY DEADLINES
                                                                                CASE NO. 2:12-CV-01699-KJM-EFB
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 1          Contrary to Rite Aid’s belief at the time of the December 3, 2020 motion, the power
 2   outage at its corporate headquarters was not resolved by December 11, 2020. Instead, the power
 3   outage was only just recently resolved on or shortly before December 21, 2020. With power
 4   finally restored, Rite Aid can now search for, collect, review, and produce the above-referenced
 5   documents, but—especially with staffing limitations attributable to the intervening holidays—
 6   Rite Aid does not have sufficient time to complete its collection, review, and production of these
 7   documents by December 31, 2020.2 The Parties therefore jointly request an additional two-week
 8   extension of this deadline from December 31, 2020 to January 15, 2021.
 9       3. Extension of Deadline for California to provide Supplemental Responses to Rite
            Aid’s Interrogatories 3-5, 7-9 and 13.
10

11          The Parties further jointly move for an order extending the deadline for California to
12   provide supplemental responses to Rite Aid’s Interrogatories 3-5, 7-9, and 13. See ECF No. 365
13   and 373. The deadline is currently January 15, 2021. ECF No. 373. The Parties request that it be
14   extended an additional two weeks to January 29, 2021.
15   Grounds for Extension Request
16          The Court originally ordered California to provide supplemental responses by December
17   31, 2020. ECF No. 365. Subsequently, the Court extended the date to January 15, 2021 pursuant
18   to a stipulated request by the Parties. ECF No. 373.
19          The Parties have worked cooperatively to comply with the Court’s October 16, 2020
20   Order. On October 19, 2020, California provided Rite Aid with a list identifying the prescription
21   records associated with the sample claims that California claims were illegible, incomplete, or
22   difficult to read. In preparing the list, California discovered that the affected prescription records
23   included a higher percentage of the sample claims than California had estimated at the hearing.
24   Due to this, the Parties jointly moved on October 26, 2020 for reciprocal two-week extensions for
25   Rite Aid to produce the requested prescription records and for the State to provide supplemental
26
     2
      Rite Aid appreciates California’s cooperation and the Court’s patience in granting the multiple
27   extensions of this deadline. This unexpected, prolonged power outage has proved to be a far
     more prolonged problem than Rite Aid ever could have anticipated.
28
                                                                      JOINT MOTION TO EXTEND COURT-ORDERED
                                                       3                                DISCOVERY DEADLINES
                                                                                 CASE NO. 2:12-CV-01699-KJM-EFB
     Case 2:12-cv-01699-KJM-EFB Document 385 Filed 01/06/21 Page 5 of 7


 1   responses to Rite Aid’s Interrogatories 3-5, 7-9 and 13. ECF No. 372. The Court granted the
 2   request. ECF No. 373. On November 25, 2020, Rite Aid produced new copies of the
 3   prescription records identified in California’s list. On December 2, 2020, to facilitate California’s
 4   efficient review of these records, Rite Aid re-produced an overlay production of the prescription
 5   records sequenced by sample claim numbers as identified in California’s list.
 6          California has worked to prepare supplemental responses to Rite Aid’s Interrogatories, but
 7   has discovered that the review process for the 1,904 sample claims has been more time
 8   consuming than expected due to pandemic-related restrictions and staff capacity. The review
 9   involves, among other things, carefully scrutinizing numerous pharmacy business and other
10   records related to each sample claim and documenting its findings from the review. Nevertheless,
11   California is making good progress and, at its current pace, will begin rolling out supplemental
12   responses for a substantial portion by next week and is on track to complete its review and serve
13   supplemental responses for all 1,904 sample claims by no later than January 29, 2021.
14   ***
15          For the reasons stated above, the Parties move to amend the deadlines in the Court’s
16   Orders, ECF No. 359, 365, 373 and 378, as follows:
17                   Event                       Current Deadline              Amended Deadline
18
      Barring unforeseen circumstances,         December 31, 2020               February 26, 2021
19    Rite Aid agrees to complete its             (ECF No. 359)
      production of custodial documents
20    covered by the Stipulated Order Re:
      Defendant’s Production of
21    Electronically Stored
22    Communications. Rite Aid will
      inform Plaintiffs ten days before
23    this deadline if Rite Aid anticipates
      that it will not be able to complete
24    its productions, so the Parties can
      agree on a reasonable timeline for
25
      Rite Aid to complete any
26    outstanding productions.

27    Rite Aid shall produce all                December 31, 2020                January 15, 2021
      documents responsive to California          (ECF No. 378)
28
                                                                     JOINT MOTION TO EXTEND COURT-ORDERED
                                                       4                               DISCOVERY DEADLINES
                                                                                CASE NO. 2:12-CV-01699-KJM-EFB
     Case 2:12-cv-01699-KJM-EFB Document 385 Filed 01/06/21 Page 6 of 7


 1    RPD Nos. 69, 72, 75, 84, 88, and
      121-123, subject to California’s
 2    qualification that RPD Nos. 69, 72,
 3    75, 84 seek only documents that
      “actually discuss, reflect, or
 4    documents” delegations or
      authorizations.
 5
      California shall provide              January 15, 2021               January 29, 2021
 6
      supplemental responses to Rite         (ECF No. 373)
 7    Aid’s Interrogatories 3-5, 7-9, and
      13
 8

 9                                           Respectfully Submitted,
10
     Dated: December 30, 2020                XAVIER BECERRA
11                                           Attorney General of the State of California

12                                           /s/ Kevin Davis
                                             ___________________________________
13                                           Kevin C. Davis
                                             Deputy Attorney General
14                                           Attorneys for Plaintiff-Intervenor
15                                           STATE OF CALIFORNIA

16
     Dated: December 30, 2020                WATERS & KRAUS LLP
17
                                             /s/ Wm. Paul Lawrence (auth. December 29, 2020)
18                                           __________________________________
                                             Wm. Paul Lawrence II (Pro Hac Vice)
19                                           Waters & Krause LLP
                                             Attorneys for Qui Tam Plaintiff
20
                                             LOYD F. SCHMUCKLEY, JR.
21

22
     Dated: December 30, 2020                MORGAN, LEWIS & BOCKIUS LLP
23
                                             /s/ Kevin Papay (auth. December 29, 2020)
24                                           ___________________________________
                                             Kevin M. Papay
25                                           Attorneys for Defendant
26                                           RITE AID CORPORATION

27

28
                                                               JOINT MOTION TO EXTEND COURT-ORDERED
                                                5                                DISCOVERY DEADLINES
                                                                          CASE NO. 2:12-CV-01699-KJM-EFB
     Case 2:12-cv-01699-KJM-EFB Document 385 Filed 01/06/21 Page 7 of 7


 1                                          [PROPOSED] ORDER
 2          Upon consideration of Plaintiff-Intervenor State of California (“California”) and
 3   Defendant Rite Aid Corporation’s (“Rite Aid”) Joint Motion to Extend Court-Ordered Discovery
 4   Deadlines, and finding good cause, IT IS ORDERED that the deadlines in ECF Nos. 359, 365,
 5   373 and 378 are amended as follows:
 6                   Event                      Current Deadline             Amended Deadline
 7
      Barring unforeseen circumstances,        December 31, 2020              February 26, 2021
 8    Rite Aid agrees to complete its            (ECF No. 359)
      production of custodial documents
 9    covered by the Stipulated Order Re:
      Defendant’s Production of
10    Electronically Stored
11    Communications. Rite Aid will
      inform Plaintiffs ten days before
12    this deadline if Rite Aid anticipates
      that it will not be able to complete
13    its productions, so the Parties can
      agree on a reasonable timeline for
14
      Rite Aid to complete any
15    outstanding productions.

16    Rite Aid shall produce all               December 31, 2020               January 15, 2021
      documents responsive to California         (ECF No. 378)
17    RPD Nos. 69, 72, 75, 84, 88, and
      121-123, subject to California’s
18
      qualification that RPD Nos. 69, 72,
19    75, 84 seek only documents that
      “actually discuss, reflect, or
20    documents” delegations or
      authorizations.
21

22    California shall provide                  January 15, 2021               January 29, 2021
      supplemental responses to Rite             (ECF No. 373)
23    Aid’s Interrogatories 3-5, 7-9, and
      13
24

25          IT IS SO ORDERED.
26   DATED: January 6, 2021.
27

28
                                                                   JOINT MOTION TO EXTEND COURT-ORDERED
                                                     6                               DISCOVERY DEADLINES
                                                                              CASE NO. 2:12-CV-01699-KJM-EFB

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