Magistrate Judge M. Page Kelley: ELECTRONIC ORDER entered. Regeneron’s Motion to Compel Documents withheld for Deliberative process is allowed in part and denied in part. (# 355 .)Deliberative process privilege is “not absolute” and may yield where a party demonstrates a particular need for the privileged information. In re Pharm. Indus. Average Wholesale Price Litig. (“In re AWP”), 245 F.R.D. 35, 40 (D. Mass. 2008). Here, the court finds that whether the Centers for Medicare and Medicaid Services (“CMS”) knew manufacturers did not deduct credit card fee reimbursements from the Average Sales Price (“ASP”) of their buy and bill drugs is relevant to the False Claims Act’s (“FCA”) materiality element. See United States ex. rel. Escobar v. Universal Health Servs. Inc., 579 U.S. 176, 195 (2016).
The government shall identify any documents that it has withheld for deliberative process privilege that relate to credit card fee reimbursements in ASP calculations (regardless of whether they were created before or after the government’s intervention). The government shall produce those documents to Deputy Courtroom Clerk Leo Vieira by September 3, 2026, so that the court may conduct an in camera review. See In re AWP, 245 F.R.D. at 40.
Regeneron’s Motion to Compel is denied. (# 390 .)
The unredacted reasonable assumption submissions Regeneron seeks are confidential by statute and need not be disclosed. “Notwithstanding any other provision of law, information disclosed by manufacturers or wholesalers under this paragraph (other than the wholesale acquisition cost for purposes of carrying out this section) is confidential and shall not be disclosed by the Secretary in a form which discloses the identity of a specific manufacturer or wholesaler or prices charged for drugs or biologicals by such manufacturer or wholesaler….” 42 U.S.C. § 1395w-3a(f)(2) (emphasis added); see also id. § 1396r-8(b)(3)(D). That confidential information includes “reasonable assumptions for calculations of the manufacturer’s ASP[.]” 90 C.F.R. 414.804(a)(5)(ii). Section 1395w-a(f)(2) contains no exception for civil discovery. The statute, therefore, prohibits the governments’ producing identifiable reasonable assumption calculations. See In re England, 375 F.3d 1169, 1171-1182 (D.C. Cir. 2004).
Regeneron’s request that the government produce unredacted reasonable assumption submissions is denied. (#391-16 at 3 [under seal].) The government produced anonymized reasonable assumption submissions with the portions that discussed credit card fee reimbursements unredacted. Id. at 5 [under seal]. Regeneron has not shown that the remaining information would be relevant.
Regeneron’s request that the government produce an unredacted version of the Department of Health and Human Services, Office of the Inspector General (“OIG”) survey response it has already provided is denied. Id. at 3, 6 [under seal]. The relevant issue is what the government did with this information, not who provided it. See Escobar, 579 U.S. at 195.
Regeneron’s request for the OIG survey responses that the government has withheld is denied. (#391-16 at 3 [under seal].) The government has already produced the OIG survey response that discussed credit card fee reimbursements. The others—which Regeneron argues speak to confusion over ASP and a lack of oversight—are too far attenuated from the relevant issue here: credit card fee reimbursements. See #173 at 22 n.4. Their production would therefore be disproportional to the needs of this case. See Fed. R. Civ. P. 26(b)(1).
Regeneron’s Motion to Compel is denied. (# 418 .)
“Absent agreement among the parties, the party who will be responding to discovery requests is entitled to select the custodians it deems most likely to possess responsive information and to search the files of those individuals. [U]nless the party’s choice is manifestly unreasonable or the requesting party demonstrates that the resulting production is deficient, the court should not dictate the designation of ESI custodians.”