Supreme Court Of The State Of New York County Of New York-Books Download

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
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subpoena calls fix ABC to produce documents and to answer interrogatories on such subjects a s. communications with customers and the pricing of various identified prescriptio n. pharmaceuticals The subpoenas return date was April 21 2006. 4 ABC did not produce the materials sought Instead ABC withheld production. asserting it needed express written assurances of confidentiality Although not required to afford. express written confidentiality we sought as an accommodation to address ABCs professe d. 5 On April 19 2006 I sent ABC a proposed confidentiality agreement See annexed. Exhibit B That began a protracted multi month negotiation of one provision after another o f. the proposed confidentiality arrangement The 18 documents within Exhibit 13 of th e. Affirmation of Alan Lewis illustrate these protracted negotiations Other subpoena recipient s. have long since responded to comparable subpoenas in some instances without any expres s. written confidentiality assurance An acceptable confidentiality agreement was ultimatel y. reached with ABC except for one disputed provision. 6 The agreed upon confidentiality arrangement permits the Attorney General to disclos e. materials that ABC designates as confidential Confident al Matter to various persons such a s. State employees experts witnesses and enforcement personnel Ex B 1 3 4 If the Attorne y. General seeks to disclose ABC Confidential latter to other persons the Attorney General agree s. to give ABC notice of that disclosure In response ABC may seek a protective order if it objects. The applicable provisions are paragraphs 5 and 5 h of the confidentiality agreement. which is attached as Exhibit B Editing to relleet later negotiations and agreements paragraph 5. If this office w ishes to disclose any Comldential Matter to anv person other than those. to the disclosure We therefore offered a ten day notice period plus a fire day extension if AB C. serves a motion for a protective order For a total of 15 days hetw een notice and disclosure i f. ABC moves for a protective order Ex B That timing gives ABC the opportunity to appl y. to the court by order to show cause for a temporary restraining order pending hearing of th e. protective order motion If no FRO is granted the Attorney General may disclose the materia l. after the 15 day period expires, 7 When ABC objected we offered a total of 20 days between notice and disclosure i f. ABC moves for a protective order and the court does not respond Ex C In response AB C. began insisting on an overall 60 day notice period which ABC later reduced to 45 days Ex D. referred to in paragraphs 3 a through It above this office shall notify ABC of its intent t o. make such disclosure at least ten 10 days prior to the disclosure the Notice identifyin g. with reasonable particularity the Confidential Matter to be disclosed If ABC seeks to oppos e. disclosure ABC may move within that ten 10 day period the Notice Period on notice to thi s. office in the Supreme Court of the State of New York County of New York the Court fo r. an order barring such disclosure a Protective Order Motion. a On any such Protective Order Motion ABC shall have the burden of demonstratin g. that the documents or material identified in the Notice are Confidential Matter within th e. meaning of this agreement and to the extent that ABC satisfies that burden th e. documents or material shall not be disclosed, b Upon service of the Protective Order Motion on this office the Notice Period shall. without further action he deemed extended for an additional five 5 days measure d. from the expiration of the Notice Period, c Upon the expiration of the period provided for in paragraph 5 h this office may. disclose the documents or information identified in the Notice unless the Court i n. connection with the Protective Order Alotion directs otherwise. d Absent a Protective Order N lotion or a limitation set by this office in the Notice th e. documents and information identified in the Notice shall cease to be Confidential Matte r. for all purposes, Now on this motion and despite having agreed otherwise early in the confidentiality agreemen t. negotiations ABC argues that if the Attorney General tri ggers the disclosure exception ABC s. service of a motion for a protective order without more should suspend the intended disclosure. until the court rules on the motion In other words to cover this disclosure exception ABC seek s. a confidentiality procedure that would grant ABC an automatic TRO regardless of merit and. extend that TRO beyond the hearing on ABCs protective order motion to when a ruling is made. 8 ABC s position both on this motion and during the negotiations is unreasonable. N Y Gen Bus Law 343 and N Y Exec Law 63 12 confer express investigatory authorit y. on the Attorney General The confidentiality restrictions sought by ABC would thwart tha t. authority and hinder effective investigations fo support its position ABC seeks to apply CPL R. 3103 to this dispute But CPLR 3103 is a discovery provision applicable in civil litigation. which simply cannot and should not be imported into the Attorney General s investigations. 9 In addition ABC argues that the Attorney General is required to bear the expenses o f. attorneys paralegals and others searching for and producing materials in response to th e. investigatory subpoena That argument is flatly contradicted by the limited circumstances i n. which ABC would be entitled to reimbursement under CPLR 8001 Cost sharing concepts. derived in the context of civil discovery do not apply to investigatory proceedings undertaken b y. the Attorney General in discharge of its official responsibilities. 10 I affirm that a good faith effort has been made to resolve the issues raised in th e. motion and cross motion, 11 I respectfully refer the Court to our accompanying memorandum in opposition t o.
ABC s motion to modify and in support of the Attorney General s cross motion to compel A13 C. to respond to the subpoena For the reasons more fully set forth in our memorandum ABC s. motion should be denied and the Attorney General s cross motion should be granted The Court. should direct ABC to comply fully with the Attorney General s subpoena within ten days fro m. service of notice of entry of this Court s order or on such other date as the Court may direct. Dated New York New York,September 18 2006,John A Ioanno u. Assistant Attorney Genera l,New York State Attorney General s Offic e. antitrust Bureau,120 Broadway Suite 26C,New York N Y 1027 1. 212 416 8268 voice,212 416 6015 telecopy,i hn Ioannou iroa srate m us email. STATE OF NEW YORK,OFFICE OF THE ATTORNEY GENERAL,ELIOT SPITZER 120 BROADWA Y JOHN A IOANNO U.
Attorney General SUITE 26c4 8 ASSISTANT ATTORNEY GENERA L. NEW YORK NEw YORK 1027 1 Tel 212 416 826 8,Fax 212 416 601 5. E Mail John loannou oag state ny us,April 6 200 6,Via E mail. Kimberly Frank s,AmerisourceBergen Corporatio n,1300 Morris Driv e. Chesterbrook PA 19087,Dear Ms Franks, Pursuant to our telephone conversation on March 23rd this letter will confirm you r. agreement to accept service of the attached Subpoena on behalf of the AmerisourceBerge n. Corporation,Please call me if you have any questions.
Thank you for your cooperation,Attachment,SUBPOENA DUCES TECUM AND INTERROGATORIE S. THE PEOPLE OF THE STATE OF NEW YORK,To AmerisourceBergen Corporation. c o Kimberly Franks,1300 Morris Plac e,Chesterbrook PA 1908 7. WE HEREBY COMMAND pursuant to General Business Law 343 and Executive La w. 63 12 that all business and excuses being laid aside you deliver and turn over to ELIO T. SPITZER Attorney General of the State of New York on the 2I st day of April 2006 at 10 00 a m. or any adjourned date or time at his office Antitrust Bureau Suite 26C 120 Broadway Ne w. York New York 10271 1 a written statement under oath consisting of answers to each of th e. interrogatories set forth in the attached Schedule A and 2 all documents designated in the attache d. Schedule B that are in your possession custody or control. PLEASE TAKE NOTICE that the Attorney General deems the information and document s. requested to be relevant and material to a confidential law enforcement investigation concernin g. possible violations of New York General Business Law 340 et seq Section 1 of the Sherman. Act New York Executive Law 6302 and related statutes. PLEASE TAKE FURTHER NOTICE that your failure to answer the interrogatories in. Schedule A or to produce the documents identified in Schedule B at the date time and plac e. specified above or at any adjourned date and time may subject you to prosecution for a. misdemeanor pursuant to General Business Law 343 and Civil Practice Law and Rules 2308. WITNESS ELIOT SPITZER Attorney General of the State of New York this 6th day o f. April 2006,ELIOT SPITZE R,Attorney General of th e. State of New York,JAIL HIMES,Bureau Chie f,Antitrust Bureau.
Department of Law,120 Broadway Suite 26 C,New York New York 1027 1. PLEASE DIRECT ALL INQUIRIES CONCERNING THIS SUBPOENA TO ASSISTAN T. ATTORNEY GENERAL JOHN A IOANNOU AT 212 416 8268 voice 212 416 601 5. telecopy or john ioannou oag state nv us e mail,INTERROGATORIE S. 1 State the following,a Your correct name,b Your date and place of incorporation and. c The address of your principal place of business or main office. 2 Identify all communications between you and any customer client concerning Firs t. DataBank s ABP price field including any of the following. a pharmacies or pharmacy chains, b pharmacy benefit managers including those who run non managed car e. pharmacies,c home health agencies,d staff HMOs,e pharmaceutical manufacturers.
f governmental and quasi governmental entities and regulators and. g private or governmental insurers and payors, 3 Identify all communications within your company concerning First DataBank s. ABP price field, 4 Identify any litigation concerning BBAWP in which you have been involved in an y. way including as a party or non party witness deponent or subpoena recipient For. each litigation list,a the names of the parties, b the date docket number and court in which the case was filed. c any court to which the case was subsequently transferred and. d the status or final resolution of the case if any. 5 Identify all communications with any law enforcement or regulatory entitie s. concerning First DataBank s ABP price field, 6 Identify all communications with any legislative body concerning First DataBank s. ABP price field, 7 Identify each instance that First DataBank surveyed or otherwise contacted yo u.
concerning the wholesale prices or other prices or rates for the NDCs listed in Exhibit A. 8 Identify all communications with by or within any pharmaceutical or othe r. industry trade groups or associations concerning First DataBank s ABP price field. 9 Identify all documents responsive to these Interrogatories. DOCUMENT REQUEST S, 1 All documents concerning First Databank s ABP price field. 2 All documents concerning wholesaler surveys or contacts by First DataBan k. identified in response to Interrogatory 7, 3 All documents with by or within any pharmaceutical or other industr y. trade groups or associations concerning First DataBank s ABP price field. 4 Produce the information for the fields listed below in a single machine readabl e. file for all invoice entries for the NDC s listed in Exhibit A between January 1 2000 and January. 31 2006 and sold to customers in New York State,b Eleven 11 Digit NDC Code. c Invoice Sale Number,d Customer Identification Number. e Customer Name,f Customer Billing Address,g Customer Shipping Address.
i Dollar Amount Due,j Return Units,k Dollar Credits. 1 Discounts and Deductions,m Package BBAWP or AWP,n Package WAC. o Chargebacks, p Any other on invoice discounts or adjustments and. q Any other off invoice discounts or adjustments, 5 All documents concerning the retention or destruction of any responsiv e. document or any of your policies with respect to the retention or destruction of document s. 6 Organizational charts sufficient to show those involved in the operation of you r. company during the relevant period, 7 All documents that were consulted or prepared by any person in connection wit h.
your preparation of any responses to any Interrogatory propounded by this subpoena. INSTRUCTIONS RULES OF CONSTRUCTION DEFINITION S,Instructions. 1 Verification of Interrogatory Responses Your response to the Interrogatories se t. forth in Schedule A shall be verified by a signed affidavit sworn to by a duly authorized directo r. or officer of your company before a person authorized to administer oaths in the jurisdiction i n. which the affidavit is signed The affidavit shall further state. a The name address telephone number and title of each person wh o. provided information contained in the response and the parts of the response for whic h. that person provided information, b That the affiant has read the attached response and knows its contents an d. that to the best of the affiant s knowledge information and belief formed after a. reasonable inquiry the response is true complete and correct as of the time of th e. Where the response to any Interrogatory is made on information and belief the sources of tha t. information and belief shall be stated in the affidavit. 2 Incomplete Response If you do not have sufficient information to answer a n. Interrogatory fully submit as complete an answer as possible and explain why the answer i s. incomplete For that part of the answer for which information is lacking. a Submit your best estimate or judgment so identified and state the basis of. the estimate or judgment, b Submit such information available to you as comes closest to providin g. the information requested, c Where incomplete answers are submitted and you believe that other. sources of more complete or accurate information exist identify and describe thos e. 3 AffidavitofCompliance Submit an affidavit of compliance stating. a The name address telephone number and title of each person who mad e. the search of your files for the documents called for in Schedule B and the location of th e. files searched, b That a complete and comprehensive search was made for the documents.
c That all documents which are responsive to the Subpoena except those. that you claim are privileged are included in your production to the Attorney General. d That the documents submitted are authentic and genuine. e Which documents are produced under each paragraph and subparagraph o f. the Subpoena and under which paragraphs and subparagraphs of the Subpoena no. documents are produced, 4 Groupine and Numbering of Documents For each document specify th e. paragraph number of the document request to which the document pertains and the offic e. location where the document is maintained in the ordinary course of business e g John Smith s. files Identify the documents by consecutive numbers placed in their lower right hand corners. This numbering system will identify documents from your files and facilitate their handling an d. return to you, 5 RetentionofDocuments All copies of any documents responsive to th e.

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