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UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

AUSTIN DIVISION 

340B HOLDINGS, LLC 

d/b/a SUNRX

 Plaintiff, 

vs. 

MATTHEW BOBO 

in his individual capacity and 

PERFORMANCE HEALTHCARE 

SOLUTIONS, LLC 

 Defendants. 

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No. 1:20-CV-197-RP 

PLAINTIFF’S MOTION FOR EXPEDITED DISCOVERY 

Plaintiff 340B Holdings, LLC d/b/a SUNRx (“SUNRx”) hereby moves for an order 

permitting SUNRx to conduct expedited, limited discovery from Defendants Matthew Bobo, in 

his individual capacity (“Bobo”), and Performance Healthcare Solutions, LLC (“Performance 

Healthcare”) (together, “Defendants”). 

INTRODUCTION 

SUNRx operates in a highly specialized, extremely competitive field managing discount 

drug programs pursuant to Section 340B of the Public Health Services Act. Dkt. 1, ¶¶ 6-7. As a 

Sales Director for SUNRx Bobo’s duties regularly required him to access SUNRx’s confidential 

client information. Accordingly, Bobo was required to execute and was subject to SUNRx’s 

Employee Confidentiality Agreement and Non-Interference Agreement (the “Employment 

Agreement”). Id., ¶¶ 8-10; 24-25. The Employment Agreement contained non-compete and nonsolicit restrictive covenants prohibiting Bobo from working for any company or entity engaged in 

any aspect of the Pharmacy Benefit Management business during his employment and for one year 

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following his departure. Id., ¶¶ 11-12. Bobo abruptly resigned from his position with SUNRx in 

April 2019. Id., ¶ 14. 

As set forth in detail in the application for preliminary injunction (Dkt. 6 at 2-5), SUNRx 

has recently learned that Bobo willfully breached his obligations under the Employment 

Agreement. Specifically, a SUNRx client revealed that Bobo and his new employer—

Performance Healthcare—have solicited that customer’s business and that Bobo is performing 

other services for Performance Healthcare that are a violation of the non-compete provision of his 

Employment Agreement. SUNRx has additionally learned through its own investigation that Bobo 

forwarded confidential, competitive information to his personal email account before his departure 

and is reasonably and justifiably concerned that he may continue to use this confidential 

information to compete with and undermine SUNRx in the marketplace. 

Accordingly, SUNRx seeks expedited discovery to ascertain the scope and extent of 

Defendant Bobo's misappropriation of confidential information, interference with SUNRx 

customer relationships, and competition in violation of his Employment Agreement and any use 

of such information by Performance Healthcare. The requested expedited discovery is necessary 

so that SUNRx can attempt to maintain its good will in the highly specialized, extremely 

competitive field of Section 340B program administration and avoid further damage for which 

damages may be challenging or expensive to calculate. The pendency of SUNRx’s request for 

injunctive relief and immediate need to prevent further misappropriation further supports the entry 

of an order expediting discovery. 

ARGUMENT 

Courts evaluate motions for expedited discovery under a good cause or reasonableness 

standard. Legacy of Life, Inc. v. Am. Donor Servs., Inc., No. 5:06-cv-00802-XR, 2006 WL 

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8435983, at *1 (W.D. Tex. Oct. 10, 2006) (“This Court concurs with those courts that have adopted 

a good cause/reasonableness standard for motions for expedited discovery when the movant 

anticipates a later preliminary injunction determination.”). “Factors commonly considered in 

determining the reasonableness of expedited discovery include, but are not limited to: (1) whether 

a preliminary injunction is pending; (2) the breadth of the discovery requests; (3) the purpose for 

requesting expedited discovery; (4) the burden on the defendants to comply with the requests; and 

(5) how far in advance of the typical discovery process the request was made.” Id. (internal 

citations omitted). Here, all factors are satisfied and good cause exists for an order granting 

expedited discovery. 

First, SUNRx has filed an application for preliminary injunction and requested that motion 

be set for hearing within the next few weeks. Dkt. 6. 

Second, the expedited discovery that SUNRx seeks is limited in scope. SUNRx is 

requesting documents and information related to three narrow topics: (1) the circumstances of 

Defendants’ solicitation of SUNRx’s customers and competition with SUNRx; (2) the 

circumstances of Bobo’s resignation from SUNRx and subsequent employment by Performance 

Healthcare; and (3) the scope of the Defendants’ access and use of SUNRx’s confidential and 

proprietary information. Specifically, the categories of documents and information that SUNRx 

seeks to discover through expedited discovery are: 

i. All documents in Defendant Bobo’s possession, custody, or control concerning any 

of SUNRx’s current or former customers, including, but not limited to, State 

Association Partners1 and their member hospitals and providers; 

ii. All documents in Defendant Performance Healthcare's possession, custody or 

1

 SUNRx is affiliated with State Hospital Associations for Alabama, Arkansas, California, Colorado, Florida, Georgia, 

Hawaii, Iowa, Idaho, Indiana, Kansas, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Mississippi, 

Montana, North Carolina, North Dakota, Nebraska, New Mexico, Ohio, Pennsylvania, South Carolina, South Dakota, 

Texas, Washington, West Virginia, and Wyoming. SUNRx provides preferred 340B administration services to these 

State Association Partners’ member hospitals and providers, which represent an overwhelming majority of SUNRx’s 

core 340B business. 

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control received from Bobo concerning any of SUNRx's current or former 

customers, including but not limited to, State Association Partners and their 

member hospitals and providers; 

iii. All communications between Defendants and any of SUNRx’s customers, 

including, but not limited to, State Association Partners and their member hospitals 

and providers; 

iv. All communications between Bobo and Performance Healthcare concerning 

SUNRx and/or any of its customers from May 1, 2018, to the present date; 

v. All documents relating to the terms and conditions of Bobo’s employment with 

Performance Healthcare, including, but not limited to, offer letters and contracts; 

vi. All documents in Defendant Bobo’s possession, custody or control created, 

originated, authored or developed by SUNRx or its agents; and 

vii. Documents sufficient to identify all services offered by Performance Healthcare, 

including, but not limited to, services relating to Section 340B of the Public Health 

Services Act. 

Additionally, SUNRx requests that Defendant Performance Healthcare answer the 

following interrogatories: 

i. Identify all former SUNRx employees currently employed by Performance 

Healthcare, including each such employee’s current job title and start date; 

ii. Identify all Performance Healthcare customers that currently utilize or have utilized 

the services of SUNRx and the date each such customer became a Performance 

Healthcare customer; and 

iii. Identify all State Association Partners, including member hospitals and providers, 

which Performance Healthcare has solicited, approached or contacted to discuss 

services. 

This Court has held similar discovery requests were sufficiently narrow and that expedited 

discovery of these narrow topics was warranted prior to a hearing on a motion for a preliminary 

injunction. Intel Corp. v. Rais, 1:19-cv-20-RP, 2019 WL 164958, at *8 (W.D. Tex. Jan. 10, 2019). 

Third, SUNRx needs this expedited discovery to determine the extent of Defendants’ 

efforts to improperly solicit SUNRx’s customers and Bobo’s attempt to compete with SUNRx. 

Without expedited discovery to reveal the extent of Defendants’ wrongful conduct and identify 

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which SUNRx customers Defendants are currently targeting, it will be difficult for SUNRx to 

properly craft the relief necessary to maintain the status quo at a hearing on SUNRx’s application 

for preliminary injunction. For this reason, courts routinely hold that expedited discovery is 

warranted in cases where a preliminary injunction is sought, particularly when defendants are 

former employees of plaintiff and are accused of improperly soliciting plaintiff’s customers. See, 

e.g., Allstate Ins. Co. v. Hineman, No. H-17-1794, 2017 U.S. Dist. LEXIS 113071, at *3 (S.D. 

Tex. 2017) (granting expedited discovery for requests that were “narrowly tailored to determine 

the existence and character of [Plaintiff’s] customers”); Legacy of Life, Inc., 2006 WL 8435983, 

at *3 (granting motion for expedited discovery when it was for the legitimate purpose of preparing 

for a hearing on its application for preliminary injunction); Intel Corp., 2019 WL 164958, at *7 

(granting motion for expedited discovery and permitting plaintiff to serve expedited discovery 

requests regarding defendants’ new employment). 

Fourth, the burden of complying with SUNRx’s seven requests for production and 

answering three limited interrogatories is minimal. See, e.g., Intel Corp., 2019 WL 164958, at *7 

(“The requests for production and interrogatories total seven relatively narrow questions that 

[responding party] could answer with minimal burden.”). The requests are limited in scope and 

seek information which should be easily accessible to Defendants. 

Fifth, although SUNRx is seeking discovery in advance of the typical discovery process, 

as noted above, courts have generally allowed expedited discovery in cases where the requested 

discovery is necessary for an adjudication of an application for preliminary injunction. SUNRx is 

only seeking limited expedited discovery that will assist in crafting an appropriate and effective 

remedy at the preliminary injunction hearing. SUNRx plans to seek the remainder of discovery 

under the typical discovery process. 

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PRAYER FOR RELIEF 

SUNRx has established the need for expedited discovery and respectfully requests that this 

Court grant this Motion for Expedited Discovery and order Defendants to provide the ordered 

discovery within five (5) days. 

Respectfully Submitted, 

/s/ Katherine P. Chiarello 

Katherine P. Chiarello 

Texas State Bar No. 24006994 

katherine@wittliffcutter.com 

Karen S. Vladeck 

Texas State Bar No. 24102899 

karen@wittliffcutter.com 

Kayna Stavast Levy 

Texas State Bar No. 24079388 

kayna@wittliffcutter.com 

WITTLIFF | CUTTER, PLLC 

1209 Nueces Street 

Austin, Texas 78701 

(512) 960.4524 office 

(512) 960.4869 facsimile 

Attorneys for Plaintiff 

340B Holdings, LLC 

CERTIFICATE OF SERVICE 

I hereby certify that on this 6th day of March, 2020, a true and correct copy of the foregoing 

document was tendered for filing to the Clerk of the U.S. District Court for the Western District of 

Texas using the Court’s CM/ECF system and transmitted by email and first-class mail to Marc 

Katz, DLA Piper LLP (US), 1900 Pearl Street, Suite 2200, Dallas, Texas 75201 and 

marc.katz@dlapiper.com. 

/s/ Katherine P. Chiarello 

Katherine P. Chiarello

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