King County v. Express Scripts Inc

1 HON. BARBARA J. ROTHSTEIN

7 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE KING COUNTY, Case No. 2:24-cv-00049-BJR 10 Plaintiff, STIPULATED MOTION AND ORDER STAYING DISCOVERY AND 11 DEADLINES vs. EXPRESS SCRIPTS, INC., EXPRESS SCRIPTS ADMINISTRATORS, LLC, MEDCO HEALTH SOLUTIONS, INC., MERCK-MEDCO, ESI MAIL ORDER PROCESSING, INC., ESI MAIL PHARMACY SERVICE, INC., EXPRESS SCRIPTS PHARMACY, INC., EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC., OPTUMINSIGHT, INC., OPTUMINSIGHT LIFE SCIENCES, INC., THE LEWIN GROUP, INC., INGENIX PHARMACEUTICAL SERVICES, INC., INGENIX, INC., OPTUMRX, INC., and OPTUM, INC., 21 Defendants.

1 Plaintiff King County (“Plaintiff”) and Defendants Express Scripts, Inc., Express Scripts Administrators, LLC, Medco Health Solutions, Inc., ESI Mail Order Processing, Inc., ESI Mail Pharmacy Service, Inc., Express Scripts Pharmacy, Inc., Express Scripts Specialty Distribution Services, Inc., OptumRx, Inc., Optum, Inc., OptumInsight, Inc., OptumInsight Life Sciences, Inc., and The Lewin Group, Inc. (collectively, “Defendants”) respectfully move this Court for entry of a stay of discovery pending resolution of certain Defendants’ (the “Jurisdictional Defendants”) motion to dismiss for lack of personal jurisdiction (Dkt. 56) and certain Defendants’ motion to dismiss for failure to state a claim (Dkt. 57 and collectively the “Motions to Dismiss”). The parties have met and conferred in good faith and hereby stipulate as follows: 10 • The pending Motions to Dismiss ask the Court to determine whether it may exercise personal jurisdiction over certain Defendants (see Dkts. 56, 65, 75) and whether the 11 County has stated claims upon which relief may be granted against the remaining Defendants (see Dkts. 57, 64, 74).

13 • Accordingly, the parties agree that a stay of discovery in this case to a date 14 days after the pending Motions to Dismiss are decided by the Court or May 1, 2025, 14 whichever is earlier, is appropriate because the pending Motions to Dismiss could narrow or broaden the legal issues in this case, determine whether the Court has 15 jurisdiction to hear claims against Jurisdictional Defendants, and inform the Parties’ discovery efforts going forward.

17 • Subject to the Court entering a stay of discovery, and because Plaintiff is a party to In re National Prescription Opiate Litigation, 1:17-md-2804 (N.D. Ohio) (the MDL), and 18 is therefore bound by the protective order in that case, Defendants will deem produced in this action their document productions in the MDL, with some specific exceptions.

19 The Express Scripts Defendants do not intend to reproduce production volumes ESI_MDL_033 and ESI_MDL_036, and ESI_MDL_R_001 because they contain only PBM and mail order pharmacy data for the MDL bellwether states of New York and 21 Texas. In addition, Express Scripts will deem produced volumes ESI_MDL_023 and ESI_MDL_035, which contain highly confidential and sensitive information regarding 22 the identities of members of Express Scripts’ Pharmacy & Therapeutics Committee, only after Plaintiff agrees to be bound by the Protective Order Regarding Identities of 23 Members of Express Scripts’ Pharmacy and Therapeutics Committee (attached as Exhibit A).

25 • Similarly, the Optum Defendants will not reproduce production volumes OPTUMRX_MDL_046, OPTUMRX_MDL_056, OPTUMRX_MDL_060, 26 OPTUMRX_MDL_065, OPTUMRX_MDL_066, or OPTUMRX_MDL_092, as they contain claims data related only to the MDL bellwether states (New York, Texas, and 27 Missouri). Further, OptumRx will deem produced volumes OPTUMRX_MDL_038, 1 OPTUMRX_MDL_040, OPTUMRX_MDL_045, OPTUMRX_MDL_052, OPTUMRX_MDL_061, OPTUMRX_MDL_068, OPTUMRX_MDL_070, 2 OPTUMRX_MDL_072, OPTUMRX_MDL_076, OPTUMRX_MDL_088, OPTUMRX_MDL_090 only after Plaintiff agrees to be bound by the Protective Order Regarding Identities of Members of OptumRx, Inc.’s Pharmacy and Therapeutics 4 Committee (attached as Exhibit B).

5 • Because these materials have already been made available to Plaintiff in the MDL, Defendants need not physically reproduce them. Defendants will provide these 6 materials subject to their understanding that these materials will continue to be treated as Confidential, Highly Confidential, Highly Confidential – Attorneys’ Eyes Only, Attorneys’ Eyes Only – P&T Members, or Confidential Protected Health Information 8 as the case may be and protected from disclosure, under the MDL Protective Order and Pharmacy and Therapeutics Committee Protective Orders. Reproduction of any 9 material in this case is not an admission by Defendants that the material is relevant or admissible. Defendants reserve all rights and do not waive any defenses or positions 10 with respect to the materials reproduced in this case or any other applicable privileges and protections permitted by law.

12 • For the reasons stated above, the parties agree that a temporary stay of discovery represents the most efficient path forward for the parties and this Court. • The parties also agree that Defendants maintain all of their defenses and do not waive 14 any defense, including the jurisdictional defenses raised in the Jurisdictional Defendants’ Motion to Dismiss.1 ACCORDINGLY, the parties jointly move that the case deadlines be stayed to a date 14 days after the pending Motions to Dismiss are decided by the Court or May 1, 2025, whichever is earlier, and all discovery be stayed until such time.

IT IS SO STIPULATED THROUGH COUNSEL OF RECORD.

24 1 Coe v. Philips Oral Healthcare, Inc., No. C13-518-MJP, 2014 U.S. Dist. LEXIS 19186, at *6 (W.D. Wash. Feb. 14, 2014) (party did not waive jurisdictional defenses by entering into stipulation); Elec. Mirror LLC v. Janmar Lighting, Inc., No. C10-976RSL, 2010 U.S. Dist. LEXIS 140388, at *1-2 (W.D. Wash. Dec. 14, 2010) (“Janmar promptly moved to dismiss for lack of personal jurisdiction on July 15, 2010. Based on the parties' subsequent stipulation, the Court stayed discovery pending a resolution of the motion to dismiss. On November 8, 2010, the Court granted Janmar's motion and dismissed the complaint for lack of personal jurisdiction.”)

1 DATED this 1st day of October, 2024.

QUINN EMANUEL URQUHART & KELLER ROHRBACK, LLP SULLIVAN, LLP /s/ Derek W. Loeser /s/ Alicia Cobb Derek W. Loeser, WSBA #24274 Alicia Cobb (WSBA #48685) David J. Ko, WSBA #38299 1109 First Avenue, Suite 210 Alison S. Gaffney, WSBA #45565 Seattle, Washington 98101 Matthew Gerend, WSBA #43276 T: (206) 905-7000 Andrew Lindsay, WSBA #60386 F: (206) 905-7100 1201 Third Avenue, Suite 3200 [email protected] Seattle, WA 98101 Phone: (206) 623-1900 Danielle L. Gilmore (pro hac vice) Fax: (206) 623-3384 Sage R. Vanden Heuvel (pro hac vice) [email protected] 865 S. Figueroa St., 10th Fl. [email protected] Los Angeles, CA 90017 [email protected] T: (213) 443-3000 [email protected] F: (213) 443-3100 [email protected] [email protected] [email protected] Matthew Melamed (pro hac vice) Grand Avenue, Suite 1380 Attorneys for Defendants Express Scripts, Oakland, CA 94612 Inc., Express Scripts Administrators, LLC, Phone: (510) 463-3900 Medco Health Solutions, Inc., ESI Mail Order Fax: (510) 462-3901 Processing, Inc, ESI Mail Pharmacy Service, [email protected] Inc., Express Scripts Pharmacy, Inc., Express Scripts Specialty Distribution Services, Inc. Attorneys for Plaintiff King County MCDOUGALD LAW GROUP P.S.

19 /s/ Shannon L. McDougald Shannon L. McDougald (WSBA #24231) 7900 SE 28th Street, Suite 500 Mercer Island, WA 98004 T: (425) 455-2060 F: (425) 455-2070 [email protected] ALSTON & BIRD, LLP Brian D. Boone (pro hac vice) 1120 South Tryon Street, Suite 300 Charlotte, NC 28203 T: (704) 444-1000 F: (704) 444-1111 [email protected] Caroline Rawls Strumph (pro hac vice) 1201 West Peachtree Street Atlanta, GA 30309 T: (404) 881-7000 F: (404) 881-7777 [email protected] Attorneys for Defendants OptumRx, Inc., Optum, Inc., OptumInsight, Inc., OptumInsight Life Sciences, Inc., and The Lewin Group, Inc.

ORDER THEREFORE, being fully advised, the Court ORDERS that the stipulated motion to stay is GRANTED. All deadlines are STAYED pending resolution of certain Defendants’ motion to dismiss for lack of personal jurisdiction (Dkt. 56) and certain Defendants’ motion to dismiss for failure to state a claim (Dkt. 57), and all discovery is STAYED until 14 days after such resolution or May 1, 2025, whichever is earlier.

IT IS SO ORDERED.

DATED this 2nd day of October 2024.

A Honorable Barbara J. Rothstein 22 United States District Court Judge

1 CERTIFICATE OF SERVICE 2 I hereby certify that, on October 2, 2024, I caused a true and correct copy of the foregoing to be filed in this Court’s CM/ECF system, which sent notification of such filing to counsel of record.

5 DATED October 2, 2024. /s/ Alicia Cobb 7 Alicia Cobb, WSBA #48685