King County v. Express Scripts Inc

1 The Honorable Barbara J. Rothstein UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE KING COUNTY, 11 Plaintiff, Case No. 2:24-cv-00049-BJR 12 v. STIPULATED MOTION AND ORDER EXPRESS SCRIPTS, INC., EXPRESS TO FILE UNDER SEAL PLAINTIFF’S SCRIPTS ADMINISTRATORS, LLC, MEDCO AMENDED COMPLAINT 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., Defendants.

1 Pursuant to Local Civil Rule (“LCR”) 5(g)(3), Plaintiff King County and Defendants1 jointly move the Court for an order to file under seal Plaintiff’s Amended Complaint, Dkt. 51.

The parties make this request because portions of Plaintiff’s Amended Complaint quote and describe the content of multiple documents that were produced under protective orders in the national opioid multidistrict litigation, In re National Prescription Opiate Litigation, No. 17-md- 2804 (N.D. Ohio) (the “Opioid MDL”), and were designated “Confidential,” “Highly Confidential,” or “Highly Confidential – Attorneys’ Eyes Only” by the producing parties in that litigation. In accordance with LCR 5(g)(3)(B), Defendants represent that the contents of these documents should remain sealed because of their designations under the Opioid MDL protective orders and because they contain Defendants’ confidential and sensitive business information, including confidential internal business strategy. See, e.g., Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (sealing is appropriate to prevent the “release [of] trade secrets”); Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th Cir. 2016) (sealing is appropriate to prevent public disclosure of “sources of business information that might harm a litigant’s competitive standing”); McCurley v. Royal Seas Cruises, Inc., 2018 WL 3629945, at *1 (S.D. Cal. July 31, 2018) (courts “routinely permit the sealing of records containing business information which competitors could potentially misuse if disclosed”); Res Exhibit Servs., LLC v. LNW Gaming, Inc., 2023 WL 4826506, at *1 (D. Nev. June 21, 2023) (granting motion to seal 1 Defendants in the instant action are 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., OptumInsight, Inc., OptumInsight Life Sciences, Inc., The Lewin Group, Inc., OptumRx, Inc., and Optum, Inc. The Parties agree that Defendants maintain all of their defenses and do not waive any defense, including the jurisdictional defenses raised in the pending Motions to Dismiss.

1 because the “material contain[ed] proprietary business information and contents of contractual agreements between the parties”).

The parties submit this stipulation now because, at the time of the filing of the Amended Complaint and briefing of the motions to dismiss under Rules 12(b)(2) and 12(b)(6), they were conferring over which documents produced in the Opioid MDLcould be used in this litigation based on Defendants’ various levels of confidentiality designations on certain documents and the associated restrictions on their use. The parties have now resolved those issues in connection with a stipulation the Court approved on October 2, 2024 at Dkt. No. 78. The stipulated order recognizes that certain documents Defendants produced in the Opioid MDL, including all of the documents referenced in Plaintiffs’ Amended Complaint, are deemed produced in this litigation. Id. at 2-3.

Since Plaintiffs provided Defendants with the sealed version of the Amended Complaint when they filed the redacted version, no party has been prejudiced by the date of this filing.

15 As required by LCR 5(g)(3)(A), the parties certify that prior to the filing of this motion, they conferred numerous times, including most recently on October 17, 2024, in an attempt to avoid the filing of this motion. The parties conferred via email on which numerous counsel for all parties were cc’d, with Matthew Melamed the primary participant for Plaintiff, and Alex Ackerman, Omar Morquecho, and Sage R. Vanden Heuvel the primary participants for Defendants. Given the confidentiality designations referenced above, the parties agreed to file this stipulated motion.

23 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

24 DATED this 29th day of October, 2024.

1 QUINN EMANUEL URQUHART & KELLER ROHRBACK L.L.P. SULLIVAN, LLP By /s/ David J. Ko /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 Phone (206) 905-7000 Andrew Lindsay, WSBA #60386 Fax (206) 905-7100 1201 Third Avenue, Suite 3400 [email protected] Seattle, WA 98101 7 Phone: (206) 623-1900 Attorneys for Defendants Express Fax: (206) 623-3384 Scripts, Inc., Express Scripts Administrators, LLC, Medco Health KELLER ROHRBACK L.L.P. Solutions, Inc., ESI Mail Order Matthew Melamed, admitted pro hac vice Processing, Inc, ESI Mail Pharmacy 180 Grand Ave, Suite 1380 Service, Inc., Express Scripts Pharmacy, Oakland, CA 94612 Inc., Express Scripts Specialty Phone: (510) 463-3900 Distribution Services, Inc. 12 Attorneys for Plaintiff MCDOUGALD LAW GROUP P.S. /s/ Shannon 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] Attorneys for Defendant OptumInsight, Inc., OptumInsight Life Sciences, Inc., The Lewin Group, Inc., OptumRx, Inc., and Optum, Inc.

23 IT IS SO ORDERED.

24 A 29th of October, 2024 Dated Hon. Barbara J. Rothstein 26 United States District Judge 1 CERTIFICATE OF SERVICE 2 I, David Ko, hereby certify that on October 29, 2024, I electronically filed the STIPULATED MOTION AND [PROPOSED] ORDER TO FILE UNDER SEAL PLAINTIFF’S AMENDED COMPLAINT with the clerk of the United States District Court for the Western District of Washington using the CM/ECF system, which shall send electronic notification to all counsel of record.

8 /s/ David J. Ko David J. Ko 4861-3532-1073, v. 3