*1 Pending before the court is the Subscriber Plaintiffs' Motion to Compel Prime Therapeutics LLC to Produce Documents (the “Motion”).[1] (Doc. 1410). This motion has been fully briefed, and argument on the motion was heard during the Discovery Telephone Conference held August 31, 2017 (the “Conference”). In the motion, Subscriber Plaintiffs (“Subscribers”) seek production of documents responsive to the subpoena served on Prime Therapeutics LLC (“Prime”) on July 12, 2017. Specifically, Subscribers seek responses to Requests for Production numbers 1, 2, and 4 through 10. (See, Doc. 1410, p. 10, Doc. 1410-1, p. 20).

Subscribers and Prime informed the court during the Conference that agreement between them had been reached, in whole or in part, as to certain Requests for Production (“Requests”). Agreement has been reached regarding Requests 3 and 11, and the Subscribers have withdrawn the Motion as it relates to those Requests. Subscribers also have agreed to withdraw Request 4, pending receipt of documents responsive to Request 1, on which agreement already has been reached. Accordingly, the Motion is MOOT as to Requests 1, 3, 4 and 11.

Prime argues, and Subscribers do not dispute, that Blue Cross Blue Shield of Alabama (“BCBS-AL”) is equally in possession of documents responsive to Requests 5, 6, and 9. Requests 5 and 6, as submitted to BCBS-AL, were addressed in Discovery Order No. 65. (Doc. 1505). Request 5 seeks “[a]ll agreements (contracts) between BCBSAL and [Prime].” (Doc. 1410-1, p. 20). The Motion, as it relates to Request 5, is GRANTED. Prime and BCBS-AL are DIRECTED to produce, by October 2, 2017, a copy (electronic or paper version) of every contract entered into between BCBS-AL and Prime from January 1, 2010, through December 31, 2017. As the court stated in Discovery Order No. 65, there is no need for BCBS-AL and Prime to produce redundant copies of the contracts, so long as a copy of every contract between them for the selected years is produced from either BCBS-AL or Prime.

Request 6, as it relates to BCBS-AL's wholly owned subsidiaries, also was addressed in Discovery Order No. 65. Request 6 seeks “[a]ll documents showing inter-company charges, mark-ups on such charges, or payments between BCBS-AL and [Prime] (and vice versa), including general ledger entries and work papers showing the flow of money back and forth.” (Doc. 1410-1, p. 20). As the court stated in Discovery Order No. 65, “such a request seeks essentially every notation of every financial transaction by the subsidiary over multiple years. This is simply disproportionate to the needs of the case...” This is particularly true in the case of Prime, which is not a wholly-owned subsidiary; instead, BCBS-AL holds only a 13.5% interest in Prime. (Doc. 1474, p. 1). Accordingly, the Motion is DENIED as to Request 6.

During the Conference, Subscribers indicated that it is their intent first to seek information responsive to Request 9 from BCBS-AL. Accordingly, the Motion is DENIED WITHOUT PREJUDICE to Subscribers' right to re-file the Motion as it relates to Request 9, should Subscribers fail to receive satisfactorily responsive documents from BCBS-AL.

*2 Subscribers stated during the Conference that they seek “guidance” from the court regarding Requests 2 and 7. Request 2 seeks “[a]ll valuations of [Prime], whether done internally or otherwise.” (Doc. 1410-1, p. 20). Prime has agreed to produce relevant external valuations, so the only issue remaining is whether Prime should be required to produce internally prepared valuations as well. The Motion is GRANTED as to Request 2 insofar as Prime is DIRECTED to produce internally prepared valuations from January 1, 2011, to December 31, 2016. The court construes “internally prepared valuations to mean,” for example, regularly prepared statements of valuation presented to the Board of Directors.

Request 7 seeks “[Prime's] Board minutes.” (Doc. 1410-1). Subscriber's The Motion is GRANTED to the extent that Prime is DIRECTED to produce, for the period of January 1, 2010, though December 31, 2015, sections of the meeting minutes of Prime's Board of Directors that explicitly mention BCBS-AL or iterations thereof, and sections that would have a clear impact on the financial relationship between Prime and BCBS-AL. Production should be completed by October 2, 2017.

Finally, Subscribers seek the court's determination regarding Requests 8 and 10. Request 8 seeks “[f]rom 2010 to the present, all agreements (contracts) under which Major Chains fill prescriptions for [Prime's] subscribers.” (Doc. 1410-1, p. 20). Prime objects to providing such information, citing the commercially sensitive nature of the contracts. (Doc. 1474, p. 5). Subscribers made clear during the discovery telephone conference that redacted versions of the contracts obscuring the parties would be acceptable. However, the court finds that, even taking such precautions, the market sensitivity of the information sought by the Subscribers outweighs the probative value of the information. Accordingly the Motion to Compel is DENIED as to Request 8.

In Request 10, Subscribers seek “[f]rom 2010 to the present, all documents showing the difference between the amounts for mail versus retail BCBSAL pays Prime Therapeutics per prescription and Prime Therapeutics' expense for filling the prescription by class of prescription and in total.” (Doc. 1410, pp. 20-21). Prime has submitted to the court as evidence the Declaration of Kyle Brua, the Vice President for Pricing, Underwriting, and Analytics at Prime. (Doc. 1484-1). In his declaration, Brua states that “Prime charges BCBS-AL the amount Prime pays for ... prescriptions, no more and no less, for retail services.” (Id. at ¶ 5). Brua also cites in his declaration the 2013 Pharmacy Benefit Management Services Agreement, which provides that Prime's charge to BCBS-AL for generic drugs provided through mail services as “[t]he lesser of AWP [minus] 22% or MAC + $0.00 dispensing fee.” (Id. at ¶ 4). The declaration also clarifies that only roughly 1% of the prescriptions filled under the 2013 agreement consisted of generic drugs though mail services. (Id.) Brua states that “Prime does not maintain records that break down its expenses on a customer by customer basis,” rendering it “not feasible for Prime to produce documents in response to this request to the extent it seeks detailed information regarding Prime's expenses incurred filling prescriptions for BCBS-AL.” Considering that Prime does not maintain information in such a way that the cost of filling prescriptions for various customers can be obtained, and considering that the algorithm used to determine the charge to BCBS-AL has been produced, the court finds that the burden on Prime, a non-party, to produce the requested information fails the proportionality test. The Motion is DENIED as to Request 10.

*3 For the reasons set forth herein, the Subscriber Plaintiffs' Motion to Compel Prime Therapeutics LLC to Produce Documents is GRANTED IN PART and DENIED IN PART. For purposes of clarity, the court's holding for each Request for Production is as follows:

DONE and ORDERED on September 7, 2017.

A redacted version of the motion (doc. 1409) also was filed. Accordingly, this Order shall serve to resolve both pending motions. (Docs. 1409, 1410).