1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 CITY AND COUNTY OF SAN Case No. 18-cv-07591-CRB FRANCISCO, et al., 9 Plaintiffs, ORDER RE: DEFENDANTS’ 10 REQUEST FOR ADDITIONAL v. CUSTODIANS AND CURES DATA 11 PURDUE PHARMA L.P., et al., Re: Dkt. 463 12 Defendants. 13
14 Now pending before the Court is a joint discovery dispute letter regarding Plaintiff’s 15 document-search custodians and Plaintiff’s production of certain CURES data. See Dkt. 463. 16 Defendants seek an order compelling Plaintiff to produce (1) documents from nine additional 17 custodians (physicians employed at hospitals and clinics affiliated with the City and County of 18 San Francisco), and (2) reports from the CURES database, California’s prescription drug 19 monitoring system. See id. at 1.1 The Court heard oral argument on these issues on March 3, 20 2021. See Dkt. 470. 21 DISCUSSION 22 A. Motion to Compel Production of Nine Additional Custodians 23 Defendants have asked the Court to compel Plaintiff to produce documents from nine 24 additional custodians. See Dkt. 463 at 6. Defendants claim the custodians’ prescribing practices 25 are “especially relevant” to Plaintiff’s allegations because an understanding of their prescribing 26 27 1 behavior, their internal communications, and their views on citywide policy go directly to 2 causation. See id. at 1-2; Dkt. 470. Indeed, Defendants argue that the request for additional 3 custodians was triggered by Plaintiff’s own “red flag” analysis of Walgreens’ prescriptions, which 4 shows that Plaintiff’s own providers wrote thousands of “flagged” prescriptions and, therefore, 5 contributed to the harm. See Dkt. 463 at 2. 6 Upon hearing the Court’s comments at oral argument, Defendants asked for leave to 7 further meet and confer with Plaintiff to narrow their requests. See Dkt. 470. Therefore, the Court 8 DENIES Defendants’ request as stated, without prejudice, and orders the Parties to meet and 9 confer on the issue. If the Parties cannot resolve the issue by March 12, 2021, the Parties shall 10 submit a new joint discovery dispute letter if Defendants wish to pursue the matter. 11 B. Motion to Compel Production of CURES Data 12 Defendants also seek documents relating to, and received from, California’s CURES 13 database. See Dkt. 463 at 2. The CURES data at issue is in the possession of Plaintiff’s 14 epidemiologists at the Department of Health. Id. at 3. Defendants contend that “[i]nformation 15 about how plaintiff and its epidemiologists use CURES data is important to understand how 16 plaintiff has assessed and responded to prescription drug abuse and diversion in San Francisco, 17 issues at the heart of plaintiff’s claims.” Id. at 2. Plaintiff argues that the CURES data at issue is 18 unavailable to Plaintiff to produce under its “data use agreement” with the California Department 19 of Justice (“Cal. DOJ”). Id. The Court finds both the law and the data use agreement permit 20 disclosure for the reasons explained below. Therefore, the Court GRANTS Defendants’ Motion to 21 Compel the CURES data in Plaintiff’s possession. 22 1. The CURES data is not privileged. 23 In a January 15, 2021 decision, the California Court of Appeals determined that the statute 24 governing disclosure of CURES data did not create an independent privilege to withhold data in 25 response to a discovery request. Bd. of Registered Nursing v. Superior Court of Orange Cty., Cal. 26 Rptr. 3d 889, 912 (2021) (calling the statute’s limitations on disclosure “not particularly strict” 27 and noting that the implementing regulations “expressly allow for disclosure in response to a 1 884 F.3d 812, 820 (9th Cir. 2018) (“When interpreting state law, federal courts are bound by 2 decisions of the state’s highest court . . . In the absence of such a decision, a federal court must 3 predict how the highest state court would decide the issue using intermediate appellate court 4 decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance.”) 5 (internal quotation marks and citations omitted). 6 Plaintiff does not argue, and the Court is unaware of any reason, that the California 7 Supreme Court would resolve the issue differently than the Court of Appeals. The CURES statute 8 states: “CURES shall operate under existing provisions of law to 9 safeguard the privacy and confidentiality of patients. Data obtained from CURES shall only be provided to appropriate state, local, and 10 federal public agencies for disciplinary, civil, or criminal purposes and to other agencies or entities, as determined by the department, 11 for the purpose of educating practitioners and others in lieu of disciplinary, civil, or criminal actions. Data may be provided to 12 public or private entities, as approved by the department, for educational, peer review, statistical, or research purposes, if patient 13 information, including information that may identify the patient, is not compromised. Further, data disclosed to an individual or agency 14 as described in this subdivision shall not be disclosed, sold, or transferred to a third party, unless authorized by, or pursuant to, 15 state and federal privacy and security laws and regulations.” 16 Cal. Health & Saf. Code, § 11165, subd. (c)(2)(A). 17 While Plaintiff is correct that the statutory scheme is written with the intent for the data to 18 be used for “educational, peer review, statistical, or research purposes,” by its own terms, the 19 statute contemplates disclosure during civil litigation. See id. Indeed, the regulations governing 20 the access and use of CURES data by bona fide researchers allows for disclosure of CURES data 21 in response to a “court order.” See Cal. Code Regs. tit. 11, § 826.4. Further, the at-issue data is 22 “de-identified” (i.e., patient, prescriber, and pharmacy names and information are excluded) such 23 that no confidentiality or privacy concerns arise. See Dkt. 463 at 6. Plaintiff cannot successfully 24 resist disclosure on the basis that the at-issue data is privileged. 25 2. The data use agreement expressly contemplates the production of CURES data in response to a court order. 26 Plaintiff also argues against disclosure by pointing to the data use agreement (Dkt. 463, Ex. 27 G) between it and the Cal. DOJ, arguing the agreement limits the use of CURES data to certain 1 enumerated purposes, restricts disclosure or transfer of the data, and that under the agreement, 2 “Plaintiff’s counsel have not even seen the data.” Dkt. 463 at 6. For these reasons, Plaintiff 3 argues that Defendants’ requests for production amount to requests for a “City employee to breach 4 his contract with Cal. DOJ” and, therefore, that the requests are “absurd.” Id. 5 Not so. The data use agreement expressly contemplates disclosure during discovery in 6 response to a court order. See Dkt. 463, Ex. G at 2 ¶ 9 (“CURES Data may not be disclosed or 7 transferred in legal proceedings or in response to subpoenas in the absence of a court order) 8 (emphasis added). An order from this Court granting Defendants’ motion to compel is exactly 9 what is sought here. Therefore, Defendants’ request is not “absurd” (nor will it result in a breach 10 of contract), but merely reflects the proper process for disclosure under law. 11 3. Cal. DOJ has not contested Plaintiff’s production of the data. 12 At oral argument, Plaintiff raised the prospect of its relationship with Cal. DOJ being 13 impaired if Plaintiff discloses the CURES data requested. See Dkt. 470. The Court notes that 14 while there is an ongoing dispute between Defendants and the Cal. DOJ regarding the disclosure 15 of CURES data (see, e.g., Dkt. 465), Cal.
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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 CITY AND COUNTY OF SAN Case No. 18-cv-07591-CRB FRANCISCO, et al., 9 Plaintiffs, ORDER RE: DEFENDANTS’ 10 REQUEST FOR ADDITIONAL v. CUSTODIANS AND CURES DATA 11 PURDUE PHARMA L.P., et al., Re: Dkt. 463 12 Defendants. 13
14 Now pending before the Court is a joint discovery dispute letter regarding Plaintiff’s 15 document-search custodians and Plaintiff’s production of certain CURES data. See Dkt. 463. 16 Defendants seek an order compelling Plaintiff to produce (1) documents from nine additional 17 custodians (physicians employed at hospitals and clinics affiliated with the City and County of 18 San Francisco), and (2) reports from the CURES database, California’s prescription drug 19 monitoring system. See id. at 1.1 The Court heard oral argument on these issues on March 3, 20 2021. See Dkt. 470. 21 DISCUSSION 22 A. Motion to Compel Production of Nine Additional Custodians 23 Defendants have asked the Court to compel Plaintiff to produce documents from nine 24 additional custodians. See Dkt. 463 at 6. Defendants claim the custodians’ prescribing practices 25 are “especially relevant” to Plaintiff’s allegations because an understanding of their prescribing 26 27 1 behavior, their internal communications, and their views on citywide policy go directly to 2 causation. See id. at 1-2; Dkt. 470. Indeed, Defendants argue that the request for additional 3 custodians was triggered by Plaintiff’s own “red flag” analysis of Walgreens’ prescriptions, which 4 shows that Plaintiff’s own providers wrote thousands of “flagged” prescriptions and, therefore, 5 contributed to the harm. See Dkt. 463 at 2. 6 Upon hearing the Court’s comments at oral argument, Defendants asked for leave to 7 further meet and confer with Plaintiff to narrow their requests. See Dkt. 470. Therefore, the Court 8 DENIES Defendants’ request as stated, without prejudice, and orders the Parties to meet and 9 confer on the issue. If the Parties cannot resolve the issue by March 12, 2021, the Parties shall 10 submit a new joint discovery dispute letter if Defendants wish to pursue the matter. 11 B. Motion to Compel Production of CURES Data 12 Defendants also seek documents relating to, and received from, California’s CURES 13 database. See Dkt. 463 at 2. The CURES data at issue is in the possession of Plaintiff’s 14 epidemiologists at the Department of Health. Id. at 3. Defendants contend that “[i]nformation 15 about how plaintiff and its epidemiologists use CURES data is important to understand how 16 plaintiff has assessed and responded to prescription drug abuse and diversion in San Francisco, 17 issues at the heart of plaintiff’s claims.” Id. at 2. Plaintiff argues that the CURES data at issue is 18 unavailable to Plaintiff to produce under its “data use agreement” with the California Department 19 of Justice (“Cal. DOJ”). Id. The Court finds both the law and the data use agreement permit 20 disclosure for the reasons explained below. Therefore, the Court GRANTS Defendants’ Motion to 21 Compel the CURES data in Plaintiff’s possession. 22 1. The CURES data is not privileged. 23 In a January 15, 2021 decision, the California Court of Appeals determined that the statute 24 governing disclosure of CURES data did not create an independent privilege to withhold data in 25 response to a discovery request. Bd. of Registered Nursing v. Superior Court of Orange Cty., Cal. 26 Rptr. 3d 889, 912 (2021) (calling the statute’s limitations on disclosure “not particularly strict” 27 and noting that the implementing regulations “expressly allow for disclosure in response to a 1 884 F.3d 812, 820 (9th Cir. 2018) (“When interpreting state law, federal courts are bound by 2 decisions of the state’s highest court . . . In the absence of such a decision, a federal court must 3 predict how the highest state court would decide the issue using intermediate appellate court 4 decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance.”) 5 (internal quotation marks and citations omitted). 6 Plaintiff does not argue, and the Court is unaware of any reason, that the California 7 Supreme Court would resolve the issue differently than the Court of Appeals. The CURES statute 8 states: “CURES shall operate under existing provisions of law to 9 safeguard the privacy and confidentiality of patients. Data obtained from CURES shall only be provided to appropriate state, local, and 10 federal public agencies for disciplinary, civil, or criminal purposes and to other agencies or entities, as determined by the department, 11 for the purpose of educating practitioners and others in lieu of disciplinary, civil, or criminal actions. Data may be provided to 12 public or private entities, as approved by the department, for educational, peer review, statistical, or research purposes, if patient 13 information, including information that may identify the patient, is not compromised. Further, data disclosed to an individual or agency 14 as described in this subdivision shall not be disclosed, sold, or transferred to a third party, unless authorized by, or pursuant to, 15 state and federal privacy and security laws and regulations.” 16 Cal. Health & Saf. Code, § 11165, subd. (c)(2)(A). 17 While Plaintiff is correct that the statutory scheme is written with the intent for the data to 18 be used for “educational, peer review, statistical, or research purposes,” by its own terms, the 19 statute contemplates disclosure during civil litigation. See id. Indeed, the regulations governing 20 the access and use of CURES data by bona fide researchers allows for disclosure of CURES data 21 in response to a “court order.” See Cal. Code Regs. tit. 11, § 826.4. Further, the at-issue data is 22 “de-identified” (i.e., patient, prescriber, and pharmacy names and information are excluded) such 23 that no confidentiality or privacy concerns arise. See Dkt. 463 at 6. Plaintiff cannot successfully 24 resist disclosure on the basis that the at-issue data is privileged. 25 2. The data use agreement expressly contemplates the production of CURES data in response to a court order. 26 Plaintiff also argues against disclosure by pointing to the data use agreement (Dkt. 463, Ex. 27 G) between it and the Cal. DOJ, arguing the agreement limits the use of CURES data to certain 1 enumerated purposes, restricts disclosure or transfer of the data, and that under the agreement, 2 “Plaintiff’s counsel have not even seen the data.” Dkt. 463 at 6. For these reasons, Plaintiff 3 argues that Defendants’ requests for production amount to requests for a “City employee to breach 4 his contract with Cal. DOJ” and, therefore, that the requests are “absurd.” Id. 5 Not so. The data use agreement expressly contemplates disclosure during discovery in 6 response to a court order. See Dkt. 463, Ex. G at 2 ¶ 9 (“CURES Data may not be disclosed or 7 transferred in legal proceedings or in response to subpoenas in the absence of a court order) 8 (emphasis added). An order from this Court granting Defendants’ motion to compel is exactly 9 what is sought here. Therefore, Defendants’ request is not “absurd” (nor will it result in a breach 10 of contract), but merely reflects the proper process for disclosure under law. 11 3. Cal. DOJ has not contested Plaintiff’s production of the data. 12 At oral argument, Plaintiff raised the prospect of its relationship with Cal. DOJ being 13 impaired if Plaintiff discloses the CURES data requested. See Dkt. 470. The Court notes that 14 while there is an ongoing dispute between Defendants and the Cal. DOJ regarding the disclosure 15 of CURES data (see, e.g., Dkt. 465), Cal. DOJ has expressed no opinion as to whether the data 16 held by the City’s epidemiologists should or should not be disclosed notwithstanding its awareness 17 of the dispute. Moreover, the data use agreement (drafted by Cal. DOJ) reflects at least an implicit 18 understanding that certain CURES data may be disclosed at times in response to discovery 19 requests during civil litigation. See Dkt. 463, Ex. G at 2 ¶ 9. Regardless, Cal. DOJ’s opinion on 20 the matter and Plaintiff’s fears that disclosure may affect its standing with that department are not 21 necessary for the Court to address before ordering disclosure of the CURES data. The DOJ knew 22 that the data was subject to disclosure upon court order and yet, has chosen not to address this 23 particular dataset before the Court. Therefore, Plaintiff is not entitled to use Cal. DOJ as a shield 24 against disclosure. 25 4. The at-issue data is relevant to Defendants’ defense. 26 Last, disclosure is proper because the at-issue data is potentially relevant to the defense. 27 See Fed. R. Civ. P. 26(b)(2). It may well turn out that after analyzing the de-identified CURES ] is not admissible.” However, this possibility does not mean the data is not discoverable. This case 2 || is about the prescribing, dispensing and distribution of opioids. Data regarding the same is 3 || relevant and given that Defendants have asked for the dataset in its current anonymized form, and 4 || that Plaintiff raises no burden argument, its production is proportional to the needs of the case. 5 CONCLUSION 6 Because the at-issue CURES data is relevant, unprivileged, and proportional to the needs 7 || of the case, the Court GRANTS Defendants’ motion to compel the CURES data held by □□□□□□□□□□□ 8 epidemiologists. However, the Court DENIES Defendants’ request for Plaintiff to produce 9 || additional custodians without prejudice and orders the Parties to meet and confer on the issue. 10 || The Parties shall complete their meet and confer efforts on the issue by March 12, 2021, and shall 11 thereafter submit a new joint discovery dispute letter brief if they remain at an impasse. a (12 IT IS SO ORDERED.
13 || Dated: March 5, 2021. ne JAZQUBLINE SCOTT CORLEY 14 United States Magistrate Judge
Oo Z 18 19 20 21 22 23 24 25 26 27 28 Defendants have yet to access and analyze this data, so it is impossible to answer this question definitively at the moment.