18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 581 particularly because there had not been a decision made on the admissibility of the evidence. Accordingly, the Sixth Circuit affirmed the District Court’s ruling. In Re Subpoena Served On DeVos, 2021 U.S. Dist. LEXIS 95281 (N.D. Cal. May 19, 2021). The former Secretary of the U.S. Department of Education, Elisabeth DeVos, moved to quash a subpoena for her deposition noticed in an underlying class action concerning the lawfulness of the Department of Education’s 18- month halt in issuing decisions on student-loan borrower-defense applications. A putative class of student-loan borrowers moved to compel the Secretary to restart the adjudication process. The parties thereafter reached a proposed settlement, which would have imposed an 18-month deadline for the Secretary to decide outstanding claims. However, while awaiting for Court’s final approval, it became known that the Secretary had been issuing denial notices for several months in alleged violation of the proposed settlement and the Administrative Procedure Act. Id . at *6. Given the extraordinary circumstances, the Court denied final approval of the proposed settlement and ordered written discovery and the depositions of five Department officials overseeing the process. Id . at *7. Following Secretary DeVos resignation from her post on January 8, 2021, class counsel issued a subpoena for her deposition, and the Secretary moved to quash. The Court concluded that even if DeVos retained some measure of executive prerogative, she must answer an appropriately issued subpoena. Id . at *8. The Court reasoned that the circumstances were extraordinary, and that DeVos was personally involvement in the conduct under review. The Court also held that the sparse evidence offered by DeVos explaining the delay did not answer the questions regarding the extremely high denial rate. For these reasons, the Court ruled that extraordinary circumstances warranted the deposition of DeVos and denied the motion to quash. In Re Terrorist Attacks On September 11, 2001, 2021 U.S. Dist. LEXIS 225478 (S.D.N.Y. Nov. 19, 2021). The parties engaged in a discovery dispute stemming from the 18-year-old class action litigation over whether Saudi Arabia aided and abetted the 9/11 attacks. The disputed involved the deposition of a Saudi Embassy official Mussaed a-Jarrah. Saudi Arabia accused Kreindler & Kreindler, one of Plaintiffs’ counsel, of breaching the deposition protocol by allowing individuals to attend confidential depositions without their attendance being noted on the record. The Court ruled that Kreindler & Kreindler’s adherence to the protective orders and the deposition protocols, particularly at the Mussaed a-Jarrah deposition, was relevant to the credibility of assertions that the firm emphasized the importance of complying with the protective orders and had systems in place to do so. Id . at *237. However, the Court ruled that Saudi Arabia’s request for the names of all individuals attending all confidential depositions was excessive. The Court thus ordered Kreindler & Kreindler to file a declaration from the FBI Agent referenced as being at deposition, stating whether the FBI Agent attended the a-Jarrah deposition, and indicating whether the FBI Agent signed materials agreeing to be bound by the protective orders and provide any materials demonstrating that that they agreed to be so bound. Accordingly, the Court granted in part Saudi Arabia’s request for production of documents relating to the alleged breach on the discovery protective order. Mabe, et al. v. Optum RX, 2021 U.S. Dist. LEXIS 101051 (M.D. Penn. May 28, 2021). Plaintiff, representing over 400 pharmacies, filed a class action alleging that Defendant reimbursed them at lower prices than those it used to reimburse large retail chain and mail order pharmacies. Plaintiffs filed a motion for reconsideration of the Court’s previous order denying their motion to compel discovery of : (i) how much Defendant paid mail order and large chain pharmacies for the same prescriptions filled for the same health plans as Plaintiffs; and (ii) information showing how much Defendant was paid by health plans for the prescriptions filled by Plaintiffs, as well as Defendant’s contracts with the plan sponsors governing such payments. Id . at *13. The Court denied the motion for reconsideration. The Court previously had ruled that the discovery requests contained data beyond the scope of what was at issue in the case, and that the information would potentially allow Plaintiffs to access Defendant’s business strategy, marketing goals, profit margins, and pricing goals. Id . at *14. The Court also found that the protective order previously issued was insufficient to protect against the competitive advantage Plaintiffs would have if the Court were to allow the requested discovery. Plaintiffs argued that new evidence was available showing that Defendant waived its confidentiality claims as to the amounts it paid Plaintiff CVS and its own mail order pharmacy because Defendant voluntarily produced its contract with CVS, which disclosed the amounts it agreed to pay CVS for generic drugs, even though Defendant argued that disclosing this information to Plaintiffs would give them a competitive advantage and irreparably harm them. Id . at *15. Upon review, the