First Amendment on the Docket

In re CVS Pharmacy, Inc. (amicus)

Status:
Closed
Case Dates:
Friday, 24 January, 2020 - Wednesday, 15 April, 2020
Facts:

In 2017, Cuyahoga and Summit Counties brought lawsuits against a number of manufacturers and distributors of prescription opiates, seeking to recover damages. Their lawsuits were consolidated, along with numerous others across the United States pertaining to inappropriate marketing and distribution of opiates, into a single multidistrict litigation (MDL) in the Northern District of Ohio, Judge Dan Polster presiding. Discovery is proceeding in portions of that MDL. On December 10, 2019, the district court entered a very broad discovery order against a number of pharmacy chain defendants, including CVS, Walgreen’s, Rite Aid, and Walmart. Under that order, the pharmacies are required to produce all nationwide customer prescription records for a host of medications, from 2006 to present, without redaction or de-identification of personally identifiable patient details. The impacted pharmacies filed a petition for a writ of mandamus to the Sixth Circuit, asking it to vacate the district court’s discovery order on multiple grounds, including invasion of patient privacy.

Legal Theory:

In our amicus brief, we argue that (1) patient prescription records are highly sensitive, and protected by the Fourth Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendment; (2) the defendants have standing to raise and argue their patients’ privacy interests, contrary to the arguments asserted by the plaintiff counties; and (3) de-identification of the prescription records, by redacting or compiling them, should be required to safeguard the patients’ privacy rights. We take no position on the underlying lawsuit, the burdensomeness of discovery, the relevance of the prescription records to the lawsuit, or whether the nationwide scope of discovery is appropriate.

Status:

On January 24, 2020 we moved to file and tendered an amicus brief in support of neither party, and on February 12 that motion was granted. In that same order on February 12, 2020, the Sixth Circuit stayed the district court’s order for nationwide production of prescription information while it considers the matter. On February 25, 2020, Judge Polster (the trial court judge) submitted a letter opposing our positions. On February 27, 2020, the plaintiff counties submitted their own opposition. On April 15 the court granted the writ and remanded the case with instructions to strike the amendments to which the December 10 discovery order applied.