• PBM Rebate Information. Defendants argue this information is plainly relevant. Defendants explain that over a third of Plaintiffs’ assignors are Medicare health plans that offered Medicare Part D prescription drug coverage, and these assignors are responsible for the vast majority of damages sought in this case. Although Plaintiffs allege that these assignors were harmed by PBM rebates, Medicare health plans hire PBMs for the express purpose of negotiating prescription drug rebates. Defendants assert that it is “highly likely that plaintiffs’ assignors actively seek PBM rebates because they moderate the financial liability of health plans, and directly benefit from high price-high rebate arrangements.” Defendants argue that although Plaintiffs claim that PBM rebates were “concealed” from their assignors, federal law requires health plans to report the amount of manufacturer rebates received by their PBMs on an annual basis. Plaintiffs nonetheless claim that their Medicare health plan assignors were harmed by the negotiation and payment of rebates by Defendants to PBMs. Defendants dispute this central claim and have requested documents designed to test it. Specifically, Defendants seek a targeted collection of (i) contracts between Plaintiffs’ assignors and PBMs, (ii) data regarding the amount of PBM rebates the assignors received for insulin, and (iii) any reports and other submissions submitted by the assignors to the federal government that identified the total amount of (and effect of) PBM rebates that they received. Defendants assert that these requests are critical because, if Plaintiffs’ assignors received the benefit of PBM rebates for insulin, Plaintiffs cannot claim that their assignors were harmed by insulin prices that were allegedly inflated to pay these rebates. In addition, regardless of the amount of rebates, the fact that Plaintiffs’ assignors may have hired and directed PBMs to negotiate rebates refutes any suggestion that the assignors were deceived by any conduct of Defendants.

• Bid and Payment Information. Defendants explain that the structure of the Medicare prescription drug coverage program potentially insulates Medicare health plans (including the assignors) from higher drug prices. Private insurance companies offer prescription drug coverage under Medicare in exchange for subsidies from the federal government and premiums paid by enrollees. Every year, Medicare health plans submit bids to the Centers for Medicare & Medicaid Services (“CMS”) that estimate how much the plan expects to spend on prescription drugs, including insulin, for a beneficiary of average health. The bids by necessity take into consideration the plan's costs for prescription drugs in the prior year as well as the possibility of rising drug prices. Thus, this bidding process raises significant questions about whether and to what extent Plaintiffs’ assignors are harmed by higher insulin prices. If the assignors already accounted for higher drug prices in their bids, then they would have received higher payments from the federal government to cover those higher prices. If the assignors failed to anticipate higher prices in a single year, the assignors’ following year's bid should account for any higher-than-expected prescription drug costs. Defendants thus asked Plaintiffs to produce: (i) agreements governing the assignors’ administration of prescription drug benefits under Medicare, (ii) documents or data showing how much the assignors paid for insulin under Medicare, (iii) documents showing how they developed their bids, including their expectation of higher insulin and other prescription drug prices, (iv) the assignors’ bids and submissions to, and contracts with, CMS, and (v) the amounts the federal government ultimately paid the assignors in capitated payments and other subsidies. Defendants argue that this information bears directly on the extent to which Plaintiffs’ assignors actually “overpaid” for insulin and whether payments from the federal government offset allegedly higher insulin prices.

*4 • First Tier and Downstream Entities. Defendants explain that in addition to their claims on behalf of Medicare health plans, Plaintiffs also assert claims on behalf of a few “first tier” or “downstream” entities that participate in Medicare. Some of these entities appear to be physician's offices, clinics, or networks of physician or clinic offices. Plaintiffs allege that these entities contract with a Medicare health plan to pay the costs of prescription drugs under Medicare, and the plan in turn pays a lump sum to the entity to cover its costs for prescription drugs. See ECF No. 75, at 13-14. Defendants argue that Plaintiffs have made no attempt to explain how these entities could be injured by higher insulin prices. Defendants therefore requested that each first tier or downstream assignor produce: (i) contracts and/or risk sharing agreements between the entities and their Medicare health plans, (ii) service fund ledgers that track payments between these entities and their Medicare health plans, and (iii) data reflecting the amounts that these entities paid for insulin and, conversely, the amounts that Medicare health plans reimbursed these downstream entities under the respective risk sharing agreements. Defendants argue this information is vital to show whether these entities have actually incurred costs for or reimbursed for insulin, or whether they were fully compensated for those insulin costs under their agreements with their Medicare health plans.

Interrogatory No. 2: For each analog insulin, identify each and every WAC, AWP, or other pricing figure that you allege is or was artificially inflated, fraudulent, misleading, or otherwise forms the basis for your claims and allegations in the Action, and state what each WAC, AWP, or other pricing figure should have been absent the allegedly unlawful conduct.

*5 Interrogatory No. 8: With respect to your alleged damages, state the amount of such damages and how such damages were or will be calculated, including the calculations or computation of each item of alleged damages, and identify each document that you rely upon to support your alleged damages.

• PBM Rebate Information. Plaintiffs argue that Defendants impermissibly seek documents for every drug paid by the health plan. This type of request is exceedingly overbroad, and thus impermissible given this case only concerns insulin products. Defendants’ request encompasses every document relating to every single drug purchased by 22 assignors used for the treatment of hundreds of thousands of patients over a 13-year period. The amount of data requested is simply staggering. Further, the information that Defendants seek is inherently conflated with remuneration never realized by the health plan. By way of example, one piece of information that is required to be reported are PBM retained rebates. These retained funds are never seen by the Assignors and any use of the information in trial will be inherently confusing to fact finders and prejudicial to Plaintiffs. Without waiver of the foregoing objections, Plaintiffs are obtaining this information from Assignors and will produce these documents in the ordinary course of production.

*8 • Bid and Payment Information. Defendants request information regarding the capitated payments that the Assignors receive from CMS. Plaintiffs argue this request is clearly overbroad, especially given that a vast majority of the information submitted during this bidding process is beyond the scope of this litigation, relating to all costs and not limited to insulin. As support for Defendants’ proposition that this information is necessary, Defendants argue “[i]f the assignors already accounted for higher drug prices for their bids, then they would have received higher payments from the federal government ...” However, the documents that Defendants request seek more information regarding the health plan providing medical services than it does the provision of insulin. Specifically, these submissions require aggregated information to be submitted such as: how much the health plan pays to provide services for broken arms, femurs, heart catheters and a myriad of additional services. In essence, this request seeks not just information relating to insulin, but information relating to every single medical interaction for hundreds of thousands of patients over a 13-year period. The amount of information sought here would be absolutely staggering, irrelevant, and disproportionate to the subject at issue (insulin). The information Defendants requests regarding the MAOs bid information, which includes every medical service claim line and every pharmaceutical claim line, is clearly overbroad and unduly burdensome. See Conopco, Inc., 1999 WL 1565082 at *3.

• First Tier and Downstream Entities. Plaintiffs explain that Defendants requested the following information related to First Tier and Downstream Medicare entity Assignors (hereinafter “FTD”): (i) contracts and/or risk sharing agreements between the entities and their Medicare health plans, (ii) service fund ledgers that track payments between these entities and their Medicare health plans, and (iii) data reflecting the amounts that these entities paid for insulin and, conversely, the amounts that Medicare health plans reimbursed these downstream entities under the respective risk agreements. In response, Plaintiffs agreed to produce the contracts and risk sharing agreements for the FTDs. The balance of Defendants’ requests (the service fund ledgers and data reflecting reimbursements) regarding the FTDs are irrelevant. When FTDs enter into risk sharing agreements with the upstream entities, such as Medicare Advantage organizations, they are provided with a roster of Medicare beneficiaries. The revenues paid by CMS on behalf of those beneficiaries are placed in a fund pool, from which all covered expenses are deducted. The amount of payment, and how the FTD manages the pool, is irrelevant as it relates to the Defendants’ fraudulent inflation of insulin prices. Additionally, Plaintiffs argue these entities are not reimbursed for the cost of insulin for the beneficiaries under their care, rather, the pool of funds available for prescription drugs and medical services is depleted. The remaining balance in the risk pool, if any, is retained by the FTD as profit

PBM Rebates

○ Assignor rebate contracts with PBMs;

○ Transaction-level data on PBM rebates received by assignors; and

○ Reports submitted to CMS regarding PBM rebates received by Assignors

Bid & Payment Information

○ Assignors’ contracts with CMS relating to the Medicare program;

○ Transaction-level data showing how much the assignors actually paid for insulin under Medicare;

○ Assignors’ bids to CMS and documents showing how the bids were developed; and

○ The actual amounts received by assignors from CMS for prescription drugs.

First Tier and Downstream Entities

○ Contracts or risk-sharing agreements between assignors and Medicare health plans;

○ Service fund ledgers that track payments between assignors and health plans; and

○ Transaction-level data reflecting the amounts assignors actually paid for insulin.

• PBM Rebate Information. Plaintiffs appear to concede that information regarding PBM rebates for insulin is relevant and have agreed to produce that information. The only question is whether they must conduct a targeted search for this information or can rely solely on search terms and TAR. As explained above, the Court should compel a targeted search.

• Bid and Payment Information. Plaintiffs now object to Defendants’ requests for bid and payment information as “overbroad.” As a threshold matter, Plaintiffs have waived this objection. Five months ago, Plaintiffs agreed that they would produce bid and payment information from their Medicare health plan assignors. Their only objection was that they should be permitted to use search terms and TAR to find this information. Plaintiffs should not be permitted to reverse that longstanding position. Aggregate information from plaintiffs’ assignors is necessary to determine whether they were injured by higher insulin prices. Under Medicare, Plaintiffs’ assignors estimate how much they will spend on all prescription drugs each year. Based on those estimates, the assignors develop and submit annual “bids” to CMS seeking a lump sum payment from the federal government that covers all of the assignors’ drug spending for a given year. See Mot. at 7–8. The federal government then makes payments to Plaintiffs’ assignors that are not divided between insulin and non-insulin expenditures, but rather compensate the plan for total drug expenses. Id. The requested information is therefore critical to determining whether Plaintiffs’ assignors were harmed by higher insulin prices. If the assignors did account for higher drug prices in their bids to CMS, they would have received higher lump sum payments from the federal government to offset those higher drug prices. And if the assignors failed to anticipate higher drug prices in a particular year, the following year's bid should account for any higher-than-expected drug costs in the prior year. In short, the assignors can insulate themselves from the alleged effect of higher insulin prices by adjusting their estimates of aggregate drug spending and bids to CMS—and defendants are entitled to know whether they did. But Defendants have not requested claims-level information for non-insulin drugs: defendants seek (among other things) contracts with CMS, the actual bids that the assignors submitted to CMS, documents showing how those bids were developed, and the actual amounts assignors received from CMS for drugs. Collecting that information for each individual assignor should not be burdensome, and plaintiffs have not attempted to show otherwise. See Barton, 2013 WL 1338235, at *3 (plaintiffs “must do more than argue that” discovery “would be burdensome”).

• First Tier and Downstream Entities. Plaintiffs agreed to produce contracts and risk sharing agreement for the first tier and downstream assignors (Opp. at 8), but argue that service fund ledgers and data reflecting insulin payments are not relevant. Plaintiffs’ objection is without merit. Plaintiffs acknowledge that health plans do not reimburse first-tier and downstream entities specifically for insulin, but instead provide a “pool of funds” that is available until “depleted.” Id. at 9. Plaintiffs say that “[t]he remaining balance in the risk pool, if any, is retained by the FTD as profit.” Id. If Plaintiffs are correct, the service ledgers and reimbursement data will show whether these entities (i) actually pay for insulin (as opposed to the health plans), and (ii) incurred costs for insulin (or whether the pool of funds offset any higher insulin prices). Defendants’ requests are thus relevant to determining whether any given first tier or downstream assignor was injured by allegedly inflated insulin prices.

*14 3. To the extent that the following documents can be identified—including through, but not limited to, the use of search terms—please provide a yes or no answer to the following questions regarding productions for individual RFPs:

a. For RFP 3, will Plaintiffs produce documents such as MAO plan bids to Centers for Medicare & Medicare Service (“CMS”)

b. For RFP 3, will Plaintiffs produce records of reinsurance payments from CMS?

c. For RFP 3, will Plaintiffs produce contracts between MAO plans and downstream entity assignors?

d. For RFP 3, will Plaintiffs produce, for assignors that include Medicare Advantage plans administering a prescription drug benefit, contract agreements with CMS?

e. For RFP 3, will Plaintiffs produce, for assignors that include Medicare Advantage plans administering a prescription drug benefit, documents describing those plans’ administration of prescription drug benefits under Medicare?

f. For RFP 3, will Plaintiffs produce, for downstream or first-tier entities, documents describing the manner in which those entities administer Medicare benefits?

g. For RFP 7, will Plaintiffs produce documents regarding insulin rebates received, directly or indirectly, by MAO plans or downstream or first-tier entities?

h. For RFP 7, will Plaintiffs produce communications discussing the receipt and/or use of drug rebates by any of your Assignors? This would include communications discussing the use of rebates to lower premiums and/or increase profits, discussions of what percentage or amount of rebates are passed on as savings to customers, and communications discussing rebates’ impacts on assignor budgets and cash flow.

i. For RFP 18, will Plaintiffs produce documents explaining the meaning of AWP and WAC, including any glossaries that define these terms?

j. For RFP 18, will Plaintiffs produce documents showing MSP's and assignors’ understanding of the terms AWP and WAC, such as documents or presentations defining those terms or how those terms are used in the assignor's business?

k. For RFP 18, will Plaintiffs produce documents that discuss AWP in terms of how assignors reimburse pharmacies or other providers? (Plaintiffs’ Second Amended Complaint alleges that assignors rely on AWP to reimburse providers. Compl. ¶ 115.)

l. For RFP 18, will Plaintiffs produce emails sent or received by assignors’ employees discussing the meaning or definition of AWP and WAC?

m. For RFP 19, will Plaintiffs produce documents—such as, e.g., internal PowerPoint presentations—discussing rebating in the pharmaceutical industry?

n. For RFP 19, will Plaintiffs produce emails sent or received by assignors’ employees discussing the practice of rebating in the pharmaceutical industry?

o. For RFP 27, will Plaintiffs produce documents acquired from third parties that will be used to support Plaintiffs’ case?