King County v. Express Scripts Inc

Opinion

1 The Honorable Barbara J. Rothstein

2 3 4 5 6 7 UNITED STATES DISTRICT COURT AT SEATTLE 9 KING COUNTY, 10 11 Plaintiff, Case No. 2:24-cv-00049-BJR 12 v. STIPULATED MOTION AND ORDER 13 EXPRESS SCRIPTS, INC., EXPRESS TO FILE UNDER SEAL PLAINTIFF’S SCRIPTS ADMINISTRATORS, LLC, MEDCO AMENDED COMPLAINT MEDCO, ESI MAIL ORDER PROCESSING, EXPRESS SCRIPTS PHARMACY, INC., 16 EXPRESS SCRIPTS SPECIALTY OPTUMINSIGHT, INC., OPTUMINSIGHT INC., INGENIX PHARMACEUTICAL OPTUMRX, INC., AND OPTUM, INC., 20 Defendants. 21

22 23 24 25 26 1 Pursuant to Local Civil Rule (“LCR”) 5(g)(3), Plaintiff King County and Defendants1 2 jointly move the Court for an order to file under seal Plaintiff’s Amended Complaint, Dkt. 51. 3 The parties make this request because portions of Plaintiff’s Amended Complaint quote 4 and describe the content of multiple documents that were produced under protective orders in the 5 national opioid multidistrict litigation, In re National Prescription Opiate Litigation, No. 17-md- 6 2804 (N.D. Ohio) (the “Opioid MDL”), and were designated “Confidential,” “Highly 7 8 Confidential,” or “Highly Confidential – Attorneys’ Eyes Only” by the producing parties in that 9 litigation. In accordance with LCR 5(g)(3)(B), Defendants represent that the contents of these 10 documents should remain sealed because of their designations under the Opioid MDL protective 11 orders and because they contain Defendants’ confidential and sensitive business information, 12 including confidential internal business strategy. See, e.g., Kamakana v. City & Cnty. of Honolulu, 13 447 F.3d 1172, 1179 (9th Cir. 2006) (sealing is appropriate to prevent the “release [of] trade 14 15 secrets”); Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th Cir. 2016) (sealing 16 is appropriate to prevent public disclosure of “sources of business information that might harm a 17 litigant’s competitive standing”); McCurley v. Royal Seas Cruises, Inc., 2018 WL 3629945, at *1 18 (S.D. Cal. July 31, 2018) (courts “routinely permit the sealing of records containing business 19 information which competitors could potentially misuse if disclosed”); Res Exhibit Servs., LLC v. 20 LNW Gaming, Inc., 2023 WL 4826506, at *1 (D. Nev. June 21, 2023) (granting motion to seal 21 22 23

24 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., 25 Express Scripts Pharmacy, Inc., Express Scripts Specialty Distribution Services, Inc., 26 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 2 agreements between the parties”). 3 The parties submit this stipulation now because, at the time of the filing of the Amended 4 Complaint and briefing of the motions to dismiss under Rules 12(b)(2) and 12(b)(6), they were 5 conferring over which documents produced in the Opioid MDLcould be used in this litigation 6 based on Defendants’ various levels of confidentiality designations on certain documents and the 7 8 associated restrictions on their use. The parties have now resolved those issues in connection with 9 a stipulation the Court approved on October 2, 2024 at Dkt. No. 78. The stipulated order recognizes 10 that certain documents Defendants produced in the Opioid MDL, including all of the documents 11 referenced in Plaintiffs’ Amended Complaint, are deemed produced in this litigation. Id. at 2-3. 12 Since Plaintiffs provided Defendants with the sealed version of the Amended Complaint when 13 they filed the redacted version, no party has been prejudiced by the date of this filing. 14 15 As required by LCR 5(g)(3)(A), the parties certify that prior to the filing of this motion, 16 they conferred numerous times, including most recently on October 17, 2024, in an attempt to 17 avoid the filing of this motion. The parties conferred via email on which numerous counsel for all 18 parties were cc’d, with Matthew Melamed the primary participant for Plaintiff, and Alex 19 Ackerman, Omar Morquecho, and Sage R. Vanden Heuvel the primary participants for 20 Defendants. Given the confidentiality designations referenced above, the parties agreed to file this 21 stipulated motion. 22 24 DATED this 29th day of October, 2024. 25 26 SULLIVAN, LLP 2 By /s/ David J. Ko 3 /s/ Alicia Cobb Derek W. Loeser, WSBA #24274 Alicia Cobb, WSBA #48685 David J. Ko, WSBA #38299 4 1109 First Avenue, Suite 210 Alison S. Gaffney, WSBA #45565 Seattle, Washington 98101 Matthew Gerend, WSBA #43276 5 Phone (206) 905-7000 Andrew Lindsay, WSBA #60386 Fax (206) 905-7100 1201 Third Avenue, Suite 3400 6 aliciacobb@quinnemanuel.com Seattle, WA 98101 7 Phone: (206) 623-1900 Attorneys for Defendants Express Fax: (206) 623-3384 8 Scripts, Inc., Express Scripts Administrators, LLC, Medco Health KELLER ROHRBACK L.L.P. 9 Solutions, Inc., ESI Mail Order Matthew Melamed, admitted pro hac vice Processing, Inc, ESI Mail Pharmacy 180 Grand Ave, Suite 1380 10 Service, Inc., Express Scripts Pharmacy, Oakland, CA 94612 11 Inc., Express Scripts Specialty Phone: (510) 463-3900 Distribution Services, Inc. 12 Attorneys for Plaintiff MCDOUGALD LAW GROUP P.S. 13 /s/ Shannon McDougald 14 Shannon L. McDougald, WSBA #24231 15 7900 SE 28th Street, Suite 500 Mercer Island, WA 98004 16 T: 425-455-2060 F: 425-455-2070 17 smcdougald@mcdougaldlaw.com

18 Attorneys for Defendant OptumInsight, 19 Inc., OptumInsight Life Sciences, Inc., The Lewin Group, Inc., OptumRx, Inc., 20 and Optum, Inc.

24 A 29th of October, 2024 25 Dated Hon. Barbara J. Rothstein 26 United States District Judge

2 I, David Ko, hereby certify that on October 29, 2024, I electronically filed the 3 STIPULATED MOTION AND [PROPOSED] ORDER TO FILE UNDER SEAL 4 PLAINTIFF’S AMENDED COMPLAINT with the clerk of the United States District Court 5 for the Western District of Washington using the CM/ECF system, which shall send electronic 6 notification to all counsel of record. 7 8 /s/ David J. Ko David J. Ko 9

10 4861-3532-1073, v. 3 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26