IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

BCBSM, INC., et al., 

Plaintiffs / Counter-Defendants, 

v. 

WALGREEN CO., et al.,

Defendants / Counterclaimant.

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Case No. 1:20-cv-01853

Honorable Virginia M. Kendall

Honorable Sheila M. Finnegan

Consolidated with:

No. 1:20-cv-01929

No. 1:20-cv-03332

No. 1:20-cv-04738

No. 1:20-cv-04940

No. 1:22-cv-01362

WALGREEN CO. & WALGREENS 

BOOTS ALLIANCE, INC.,

Third-Party Plaintiffs,

v.

PRIME THERAPEUTICS LLC & 

OMEDARX, INC.,

Third-Party Defendants.

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MEMORANDUM IN SUPPORT OF

DEFENDANTS’ MOTION TO COMPEL 

PLAINTIFFS’ DOCUMENT DISCOVERY AND RELATED METRICS

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Jeffrey J. Bushofsky

Laura G. Hoey

Timothy R. Farrell

Charles D. Zagnoli

ROPES & GRAY LLP

191 N. Wacker Drive

32nd Floor

Chicago, IL 60606

Telephone: (312) 845-1200

Facsimile: (312) 845-5522

Jeffrey.Bushofsky@ropesgray.com

Laura.Hoey@ropesgray.com

Timothy.Farrell@ropesgray.com

Charles.Zagnoli@ropesgray.com

Attorneys for Defendant / Counterclaimant / 

Third-Party Plaintiff Walgreen Co. & 

Defendant / Third-Party Plaintiff Walgreens 

Boots Alliance, Inc.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................................................... ii

FACTUAL BACKGROUND....................................................................................................... 3

A. Insurers Produce Under 18,000 Documents, Declare Substantial Completion.................. 4

B. Plaintiffs Refuse to Produce the CVS Materials, then Impose Restrictions....................... 6

C. Walgreens Uncovers Alarming Gaps in Plaintiffs’ Document Productions. ..................... 8

D. Plaintiffs Refuse to Provide Critical Details about Their Document Review 

Methodology, as Required by the ESI Protocol. ................................................................ 9

ARGUMENT............................................................................................................................... 12

I. Plaintiffs Should Be Compelled to Provide Assurances that They Have Corrected Their 

Previous Discovery Errors and Will Produce All Responsive Documents...................... 12

II. Documents from 20 Custodians Whom Plaintiffs Identified for the First Time in Their 

October 17, 2022, Interrogatory Responses Should be Produced .................................... 14

CONCLUSION ........................................................................................................................... 15

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TABLE OF AUTHORITIES

Page(s)

Cases

Beef Products, Inc. v. Hesse,

2019 WL 6841362 (D.S.D. Dec. 16, 2019) .............................................................................13

Cary v. N.E. Ill. Reg’l Commuter R.R. Corp.,

2021 WL 678872 (N.D. Ill. Feb. 22, 2021) .............................................................................15

Livingston v. Chicago,

2020 WL 5253848 (N.D. Ill. Sept. 3, 2020) ............................................................................12

Moore v. Publicis Groupe,

287 F.R.D. 182 (S.D.N.Y. 2012) .......................................................................................12, 14

Progressive Cas. Ins. Co. v. Delaney,

2014 WL 3563467 (D. Nev. July 18, 2014) ......................................................................12, 14

Rio Tinto PLC v. Vale S.A.,

306 F.R.D. 125 (S.D.N.Y. 2015) .............................................................................................13

Ruiz-Bueno v. Scott,

2013 WL 6055402 (S.D. Ohio Nov. 15, 2013)..................................................................13, 14

Winfield v. City of New York,

2017 WL 5664852 (S.D.N.Y. Nov. 27, 2017).........................................................................13

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After two years of discovery, the Plaintiffs (dozens of sophisticated insurers alleging a 

fifteen-year fraud scheme) produced only 18,000, mostly unremarkable, documents. In meet-andconfer discussions initiated by Defendants,

1 Plaintiffs’ counsel claimed to be “just as surprised”

as anyone about the small number, but assured Walgreens that a robust, comprehensive, and 

sophisticated search and review process had yielded the slim production. Plaintiffs declared their 

production “substantially complete” on August 22, 2022. The reality was much different, however. 

Walgreens recently discovered that, for reasons that remain opaque, Plaintiffs failed to produce 

several obviously responsive, case-critical internal documents, even though the materials belong 

to agreed-upon Plaintiff custodians and contain numerous agreed-upon search terms.

Those case-critical documents cast doubt on Plaintiffs’ entire discovery efforts—and sent 

Plaintiffs scrambling. Since November 4, Plaintiffs have produced 157,437 documents—

compared to the 18,000 documents Plaintiffs produced before declaring their production 

substantially complete. As a result of Plaintiffs’ actions, 20 months into discovery, Walgreens is 

essentially back at square one. And despite Plaintiffs’ recent frantic efforts, as demonstrated below, 

Walgreens still has no reason to believe that Plaintiffs have met their basic discovery obligations. 

This Motion seeks clarity and an assurance that Plaintiffs will conduct a proper review and produce 

responsive documents in their possession, custody, or control.

In just the past few weeks, Walgreens was able to uncover previously withheld, critical 

defense documents only because a subset of these Plaintiff insurers, earlier this year and through 

different counsel, produced ten times as much material in a closely related Usual & Customary 

(“U&C”) pricing case. In that action, Blue Cross insurers are suing Walgreens’ primary 

competitor, CVS. Naturally, Walgreens asked Plaintiffs for those productions early and often—

1 Defendants are Walgreen Co. and Walgreens Boots Alliance, Inc. (together “Walgreens”).

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seeking fairness and symmetry, since Walgreens has always agreed to produce its documents from 

two similar U&C cases, Russo v. Walgreen Co., No. 17-cv-2246 (N.D. Ill.), and Humana Health 

Plan v. Walgreen Co., No. 01-19-0002-5131 (Am. Arb. Ass’n).

Plaintiffs long ignored Walgreens’ requests, and later purported to impose significant 

limitations. Rather than simply handing over their CVS productions (subject to the Agreed 

Confidentiality Order), Plaintiffs reserved the right to pick and choose among custodians and 

topics. Plaintiffs also claimed that their CVS productions focus on CVS and so (Plaintiffs said) 

lack information relevant here—despite the CVS materials’ obvious bearing on Plaintiffs’ core 

“industry standards” fraud theory. Plaintiffs even suggested that their other outside counsel might 

have “data dumped” irrelevant materials on CVS, claiming that, in this case, Plaintiffs are taking

a more targeted approach yielding far more meaningful results without needless bulk. Plaintiffs’ 

equivocations about the CVS production continued.2

Walgreens was steadfast, ultimately advising Plaintiffs that it intended to subpoena CVS 

for the productions. Soon after, Plaintiffs finally turned over some of the CVS materials. What 

Walgreens found was astonishing: Several of these same Plaintiffs had produced to CVS obviously 

responsive, critical internal Blue Cross documents specifically discussing Walgreens’ U&C price 

reporting and establishing that Plaintiffs have long been completely aware that Walgreens never 

2 Plaintiffs’ primary law firm in the CVS case is Stein Mitchell Beato & Missner LLP—which notably also 

represents a group of newer plaintiffs in this case, the CareFirst insurers. Individual Stein Mitchell lawyers 

who represent the Blue Cross plaintiffs suing CVS have also appeared in this matter and attended key 

telepresence conferences addressing the subject matter of this Motion. In a cynical “whipsaw” approach, 

counsel from Crowell & Moring LLP advised Walgreens that Crowell could not speak to what Plaintiffs 

produced to CVS, while, in the same conference, Stein Mitchell lawyers likewise declined to address the 

CVS production. Plaintiffs consistently pressed the fiction that their CVS productions are largely irrelevant 

to discovery in this case—a fiction apparently calculated to support Plaintiffs’ highly curated and very 

incomplete production. Regardless of which lawyers represent Plaintiffs in which litigation, and whether 

one firm was more fulsome in its productions than the other, the Plaintiffs have obligations to the Court and 

Walgreens. Plaintiffs’ enervating gamesmanship should end.

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reported pricing from its Prescription Savings Club (“PSC”) and similar programs as Walgreens’ 

U&C price. To be clear, these Plaintiffs gave to CVS critical documents about Walgreens that they 

inexplicably withheld or, at best, carelessly failed to produce, here. The first tranche of CVS 

documents debunked Plaintiffs’ baseless (and now abandoned) claim that materials from the CVS 

case are irrelevant in this case. But for the CVS productions and Walgreens’ persistence, key 

evidence would have remained buried.

After several fruitless letter exchanges and lawyer conferences, Plaintiffs continue to 

prevaricate. While Walgreens hoped to bring one consolidated motion to compel on multiple 

disputed topics, a few of which remain in discussion between the parties, Walgreens cannot wait 

on this Motion. The Court’s intervention is needed to ensure that Plaintiffs adequately search for 

and produce responsive, relevant materials.

FACTUAL BACKGROUND

When a health insurer reimburses a pharmacy for a prescription, the insurer typically pays 

no more than the pharmacy’s U&C price. See 2d Am. Compl., Dkt. 145 ¶ 68. This case involves a 

claim by 28 Blue Cross insurers3that Walgreens defrauded them into believing that Walgreens 

was reporting as U&C the pricing available through its members-only PSC, when in fact it did not. 

Plaintiffs make this claim even though they had full access to the U&C prices Walgreens reported 

to Plaintiffs’ pharmacy benefit managers; that Walgreens’ PSC program and prices were widely 

publicized; that other plaintiffs had been litigating related issues against Walgreens and other 

pharmacies since at least 2011; and that it was common industry knowledge that pharmacies report 

3 The data presented in this Motion excludes documents and custodians produced by a twenty-ninth 

plaintiff, BCBS of Nebraska, which voluntarily dismissed its claims. See Dkt. 292. In March 2022, seven

more Blue Cross insurers (the “CareFirst Plaintiffs”) filed a nearly identical complaint against Walgreens.

The CareFirst Plaintiffs’ case was consolidated with the other Plaintiffs’, see Dkt. 272, but discovery 

between Walgreens and the CareFirst Plaintiffs is in its early stages. See, e.g., Dkt. 372, at 2-3. This Motion 

seeks relief only against the initial 28 Plaintiffs, reserving all rights as to the CareFirst Plaintiffs.

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as U&C their cash retail prices charged to customers paying out-of-pocket without insurance or 

any other intermediary program—and not prices available only to members of programs like PSC.

A. Insurers Produce Under 18,000 Documents, Declare Substantial Completion.

Before receiving a single discovery request, Plaintiffs claimed they could find, review, and 

produce relevant documents in only seven months; they criticized Walgreens for suggesting a 

longer timeline. Feb. 3, 2021 Hr’g Tr., Dkt. 193 at 6:20-7:22. Plaintiffs protested that Walgreens 

had already “gathered the relevant facts” in other, related litigation, id. 7:10-22, but Plaintiffs 

ignored that the same was not true in reverse. Plaintiffs had never before identified custodians or 

collected and produced responsive documents in a U&C-related case against Walgreens.

The parties commenced discovery by serving Rule 26 initial disclosures on March 19, 

2021. See Dkt. 129. Although Plaintiffs’ allegations covered “many millions of transactions” 

across a 15-year period, the 28 Plaintiffs, divided into 13 Plaintiff groups,4

identified in their initial 

disclosures just 22 individuals likely to have discoverable and responsive information—fewer than 

one knowledgeable individual on average per Plaintiff and fewer than two per Plaintiff group. See

Exhibit 1 to Decl. of Charles D. Zagnoli (“Ex.”). Plaintiffs then agreed to provide documents from 

fewer than two custodians per Plaintiff group.

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See Ex. 4.

Walgreens served its first requests for production on May 14, 2021, Ex. 5, but Plaintiffs 

failed to make any serious document production for nearly 18 months. By the end of 2021, 

4 Plaintiffs divided themselves into 13 groups for discovery and represented that, because of their business 

structures, the members of each group would have identical responses and productions. Some of those 

groups include a single Plaintiff (e.g., Blue Cross and Blue Shield of Alabama); other groups include several 

Plaintiffs (e.g., the “Cambia Plaintiffs,” comprising Cambia Health Solutions Inc.; Regence BlueShield of 

Idaho, Inc.; Regence BlueCross and BlueShield of Oregon; Regence BlueCross and BlueShield of Utah; 

Regence BlueShield; and Asuris Northwest Health). See Ex. 1. Walgreens reserves the right to challenge 

these groupings and their overlapping nature should discovery contradict Plaintiffs’ representations. 

5 Walgreens, by contrast, named in its initial disclosures over 30 former and current employees with 

knowledge about the suit’s underlying facts and initially agreed to produce materials from 13 custodians. 

Exs. 2, 3.

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Plaintiffs collectively had produced just 81 documents (and no internal emails) compared to 

Walgreens’ 44,361. Ex. 8. In 2022, Plaintiffs’ productions continued to lag. Having produced no 

additional documents in January and February 2022, Plaintiffs promised on March 16, 2022, to 

produce “thousands of additional pages” in March and April 2022, “followed by additional rolling 

productions . . . on a consistent basis.” Ex. 9. Yet, between March 22 and August 2, 2022, Plaintiffs 

made just 5 productions totaling 3,685 documents, which included just over 1,200 emails. See Ex. 

8. In contrast, by August 2, 2022, Walgreens had produced 149,949 documents and 840,461 pages. 

Id. Walgreens questioned the growing disparity, Ex. 10 at 2, but Plaintiffs dismissed Walgreens’ 

concerns. Plaintiffs implied that their self-described discerning review weeded out irrelevant 

documents: “It is simply not our practice to ‘data-dump’ or serve massive amounts of 

nonresponsive documents for mere appearances.” Ex. 11 at 1. 

Plaintiffs made their largest production (before their recent frantic production of CVS 

documents in November and December 2022) on August 2, 2022. See Ex. 8. But even that 

production included only 13,551 documents. Plaintiffs produced 78 more documents on August 

10, 2022, bringing their grand total to 17,395—621 documents, on average, per Plaintiff and 1,338 

documents per Plaintiff group. See id. With that, Plaintiffs reported to Walgreens and the Court on 

August 22, 2022, that their production was “substantially complete.” Dkt. 317 at 2. 

The paucity of Plaintiffs’ production was suspicious: 28 leading health insurers, each with 

major contractual relationships (including with intermediary pharmacy benefit managers and other 

pharmacies), are alleging widespread fraud affecting millions of prescription reimbursements over 

a 15-year period. Yet, a purportedly fulsome review resulted in just 17,395 responsive documents. 

As concerning to Walgreens was Plaintiffs’ disclosure that the materials were culled from around 

3 million documents, using agreed search terms and technology aided review (“TAR”). Dkt. 317 

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at 2-3. Plaintiffs dismissed the troubling statistics as smoke, not fire—waiving off Walgreens’ 

questions in a report to the Court as mere “‘concerns’ . . . based solely on the number of documents 

and pages produced.” Id. There was nothing more to it, Plaintiffs assured the Court: “Defendants 

have not—because they cannot—point to a single deficiency in [Plaintiffs’] document production 

beyond just general ‘concerns.’” Dkt. 334 at 4. At the same time, Plaintiffs urged the Court to 

hurry the case along, seeking to close fact discovery no later than December 27, 2022. In Plaintiffs’ 

words: “Defendants’ ‘concerns’ with . . . Plaintiffs’ document productions . . . do not provide 

support for additional delay of the case schedule.” Dkt. 334 at 4. The Court recognized, however, 

that “it [was] not at all realistic to think that [fact] discovery would be completed by December 

27,” and it granted a six-month extension. Sept. 15 Hr’g, Dkt. 353 at 21:10-22.

B. Plaintiffs Refuse to Produce the CVS Materials, then Impose Restrictions.

In contrast to their purportedly “substantially complete” production of just 17,395

documents in this case, a subset of the same Plaintiffs had produced ten times as many documents 

to CVS in nearly identical litigation (the “CVS Production” and the “CVS Litigation”).6

Refusing to defend against Plaintiffs’ fraud claims with an obviously deficient discovery 

record, Walgreens continued to insist that Plaintiffs comply with their obligations under the 

Federal Rules. First, just eight days after Plaintiffs’ August 2 production, Walgreens issued an 

interrogatory to test whether Plaintiffs had contributed to their de minimis production by omitting 

knowledgeable individuals from their initial disclosures and custodian list. See Ex. 12 at 9. After 

asking for a month-long extension to respond, Plaintiffs identified on October 17, 2022, 49 new, 

6 Eight of the 13 Plaintiff groups are Plaintiffs both in this case and the CVS Litigation, Case No. 1:20-cv00236-WES-PAS (D.R.I.): Blue Cross and Blue Shield of Alabama; Florida Blue (which includes 2 

Plaintiffs); Horizon Healthcare (2 Plaintiffs); HealthNow (3 Plaintiffs); Blue Cross and Blue Shield of 

Kansas City; Blue Cross and Blue Shield of Minnesota (2 Plaintiffs); Blue Cross and Blue Shield of North 

Carolina; and Blue Cross Blue Shield of North Dakota. 

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never-before disclosed individuals with past or present managerial or leadership responsibility for 

Plaintiffs’ pharmacy- or pharmacy benefit management–related functions. See Ex. 13 at Exhibit A 

(comparing Plaintiffs’ October 17, 2022, interrogatory responses to initial disclosures and 

custodians). On October 25, 2022, Walgreens requested documents from those newly disclosed 

individuals (an average of fewer than four new custodians per Plaintiff group), see id., but Plaintiffs 

initially agreed to produce documents from just 8 of the 49, along with 5 more custodians who 

Plaintiffs, without explanation, had only “themselves identified . . . recently.” See Ex. 14 at 1-2.

Second, Walgreens urgently reiterated its request for the CVS Production—a request 

Walgreens first issued on May 2021, but that Plaintiffs had repeatedly ignored. See Ex. 5 at 28

(requesting “All Documents related to the U&C Litigation”); see also Ex. 10 at 2-3. Finally, on

August 29, 2022, Plaintiffs agreed to respond—but only in part. See Ex. 15. Rather than provide 

the entire CVS Production, Plaintiffs refused to produce documents from any non-“overlapping” 

CVS Litigation custodians whom Plaintiffs had not also designated in this case. See id. The reason 

for their refusal, Plaintiffs asserted, was to avoid flooding Walgreens with irrelevant and 

nonresponsive documents from custodians who “presumably [ ] have knowledge that [is] specific 

to CVS issues.” Sept. 15, 2022 Hr’g, Dkt. 353 at 9:19-24 (emphasis added); see also Ex. 16 at 4. 

But Plaintiffs also refused to give Walgreens the basic information that it needed to test 

that assertion. In fact, when Plaintiffs finally provided the names of the non-overlapping custodians 

whose documents they intended to withhold, Plaintiffs dismissively suggested that Walgreens 

review the custodians’ “public LinkedIn profiles” to find out more about their roles. Ex. 16 at 3-4. 

Those profiles included only the high-level, generalized descriptions that some (but not all, see id.

at 3) of the non-overlapping custodians chose to provide on social media about their own roles and 

responsibilities; they lacked the detailed information that Plaintiffs themselves were required to 

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October 17, 2022, interrogatory responses; (3) certify that Plaintiffs produced all known 

responsive or otherwise relevant documents, regardless of whether they fell within the parties’ 

agreed set of custodians, search parameters, and terms; and (4) provide a log of non-privileged 

documents collected from agreed custodians that hit on key Walgreens- and PSC-related terms but 

Plaintiffs withheld. See id. The parties met at Walgreens’ urging on November 23. See Ex. 23. 

During that conference and in a follow-up December 1, 2022, letter, Plaintiffs admitted to 

somehow missing each of the sample “hot documents” provided by Walgreens. Although the 

documents apparently existed within the full 3-million-document data set from which Plaintiffs 

pulled their 18,000-document production, Plaintiffs had not reviewed the hot documents at all. 

Plaintiffs’ explanation left much to be desired: the TAR model that Plaintiffs employed to aid 

human review in scoring and prioritizing documents for responsiveness inexplicably assigned 

multiple case-critical documents such a low score (per Plaintiffs’ own chosen standard) that no 

attorney ever saw them. See Ex. 24. Plaintiffs flatly refused to provide meaningful details—

initially asserting that their entire TAR process, including metrics and methodology, was protected 

attorney work product—or to agree to Walgreens’ requests for other assurances. See id.

Giving Plaintiffs every opportunity to address their failures, Walgreens requested yet 

another follow-up meeting—now involving the parties’ e-discovery experts, including Walgreens’

counsel’s Global Head of E-Discovery, Discovery Strategies & Data Analytics. Ex. 25 at 1. 

Plaintiffs again refused (on work-product grounds) to provide crucial data about their TAR 

model’s performance as of the date Plaintiffs declared substantial completion, including the cutoff 

score, the responsiveness rate for the highest score band just below the cutoff, and the validation 

sample results. Nor would Plaintiffs reveal how they adjusted their model going forward, stating 

only that the example hot documents now clear the bar—as if backing into a set of criteria 

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sufficient to identify a few blatantly relevant documents can satisfy Plaintiffs’ obligations.

Plaintiffs’ December 16, 2022, follow-up letter also raised more questions than it answered. 

Plaintiffs conceded that, after Walgreens exposed their discovery failures, Plaintiffs reduced their 

TAR cutoff score from “out of an abundance of caution.” Ex. 26 at 1. Critically, however, 

Plaintiffs did not explain why or how their model initially scored case-critical and clearly relevant 

documents so low. See id. Plaintiffs not only failed to explain how they built their model, failed to 

provide data on the responsiveness rate for the score bands just below the cutoff, and failed to 

provide relevant validation sample results, they also failed to answer Walgreens’ request for the 

number of times the model had been refreshed before they declared substantial completion.7See 

id. Nor would Plaintiffs explain what steps they are taking to “recalibrate” and “stabilize” their 

model. Id. Instead, Plaintiffs merely assured Walgreens that the two example key documents “are 

now well above the initial relevancy cut-off score.” Id. And although Plaintiffs agreed to provide 

the remainder of the CVS Production, add two new custodians, and produce more responsive 

documents, Plaintiffs did not estimate how much longer Walgreens must wait for a production 

Plaintiffs declared substantially complete on August 22, 2022. See id.; Ex. 24.

Plaintiffs’ production from the CVS case and their recalibration of search criteria to hit on 

a few obviously responsive key documents is insufficient—even if it is more responsive than what 

Plaintiffs did before. That is particularly true for the five Plaintiff groups that are not parties to the 

CVS Litigation and produced nothing there. Walgreens needs meaningful, reasonably complete 

discovery in this case, and it needs Plaintiffs’ documents immediately to prepare for oral discovery.

7 Plaintiffs disclosed that they are using a Continuous Active Learning (“CAL”) TAR model. As human 

reviewers code documents as relevant or non-relevant, CAL models should continually refresh and update. 

But CAL models sometimes stall and do not refresh, whether by way of the review platform or human error. 

Walgreens asked how often Plaintiffs’ CAL model had actually refreshed. Plaintiffs refused to respond. 

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ARGUMENT

Walgreens respectfully requests that the Court (1) order Plaintiffs to make reasonable 

disclosures and representations ensuring that Plaintiffs have met or will soon meet their document 

discovery obligations, including by providing details about their TAR process, and (2) order 

Plaintiffs to produce responsive materials from 20 custodians whom Plaintiffs identified for the 

first time on October 17, 2022, as likely to possess relevant information.

I. Plaintiffs Should Be Compelled to Provide Assurances that They Have Corrected 

Their Previous Discovery Errors and Will Produce All Responsive Documents

Since November 4, Plaintiffs have purported to remedy their discovery mistakes by

producing 157,437 new documents. See Ex. 8. While Plaintiffs’ productions come far too late for 

Walgreens to complete depositions before fact discovery closes, they also fail to address Plaintiffs’ 

errors. Supplying more documents, standing alone, offers no proof that Plaintiffs have fixed the 

glaring inadequacies of their approach to identifying and producing written discovery.

Courts recognize TAR methodology as sound and more efficient than a linear review of 

search-terms hits, see, e.g., Progressive Cas. Ins. Co. v. Delaney, 2014 WL 3563467, at *8 (D. 

Nev. July 18, 2014) (collecting citations); Moore v. Publicis Groupe, 287 F.R.D. 182, 190-91 

(S.D.N.Y. 2012) (same), but only when the TAR user properly trains and applies the model. Thus, 

when parties use TAR, transparency is crucial to “allow[] the opposing counsel (and the Court) to 

be more comfortable with computer-assisted review.” Moore, 287 F.R.D. at 192 & n.14; see also 

Progressive, 2014 WL 3563467, at *10 (TAR requires “an unprecedented degree of transparency 

and cooperation among counsel”); Livingston v. Chicago, 2020 WL 5253848, at *3 (N.D. Ill. Sept. 

3, 2020) (approving TAR methodology because of “sufficient information to make the production 

transparent”). When document productions suggest that a party has not properly trained and 

applied its model, courts direct parties to provide “discovery about discovery,” just as they would 

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if a party using keyword searches and linear review made an obviously deficient production. See, 

e.g., Beef Products, Inc. v. Hesse, 2019 WL 6841362, at *8-9 (D.S.D. Dec. 16, 2019) (producing 

party’s files ordered forensically examined because of anomalous, unreliable, and incomplete 

production); Ruiz-Bueno v. Scott, 2013 WL 6055402, at *1-4 (S.D. Ohio Nov. 15, 2013) (collecting 

cases); see also Winfield v. City of New York, 2017 WL 5664852, at *9-11 (S.D.N.Y. Nov. 27, 

2017) (requiring in camera inspection of documents addressing predictive coding, training, and 

validation processes; finding “human error in categorizing a small subset of documents,” not 

anything “inherently defective” in TAR process itself).

Mindful of the foregoing considerations, the parties agreed in their ESI Protocol that, if 

one party alleges a discovery violation, the responding party must share details about its TAR 

methodology. See Dkt. 140 at 3. Walgreens has asked Plaintiffs to follow this provision, but 

Plaintiffs have refused—instead providing only elementary information that raises more questions. 

See Part D, supra. Walgreens now respectfully asks the Court to compel Plaintiffs to provide, in 

three ways, the transparency the ESI Protocol and case law demands.

First, the Court should compel Plaintiffs to supply data on their TAR model’s performance 

now and on August 22, 2022, the date that Plaintiffs declared substantial completion—including 

the responsiveness rate for the highest score band just below the cutoff, validation sample results

(a QC review of a sample of low-scoring, unreviewed documents), and the number of times the 

model had been refreshed, as well as how those metrics changed after November 4.

Plaintiffs inaccurately assert that those metrics are protected work product and are

unnecessary now that Walgreens knows the TAR model’s cutoff score. Responsiveness rates and 

the results of a validation sample, however, are discoverable, see, e.g., Rio Tinto PLC v. Vale S.A., 

306 F.R.D. 125, 128-29 (S.D.N.Y. 2015) (statistics to validate TAR process discoverable), just as 

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they would be if the parties had not used TAR. See Ruiz-Bueno, 2013 WL 6055402, at *1-4. That

data (and not just the cutoff threshold Plaintiffs eventually disclosed) is also crucial to ensuring

Plaintiffs meet (and have met) their discovery obligations. For example, a producing party can 

artificially limit its production while maintaining a facially acceptable cutoff score by coding for 

responsiveness too narrowly. The producing party might then conceal its too-narrow coding by 

disclosing QC and statistical metrics (typical TAR disclosures) that make the producing party’s 

model seem appropriately trained. Responsiveness rates and validation sample results would 

reveal the producing party’s misguided approach and would explain how and why very clearly key 

documents fell below a unilaterally determined threshold and avoided human review entirely.

Second, the Court should compel Plaintiffs to certify that they are not knowingly 

withholding responsive documents merely because those documents fall outside the parties’ 

collection parameters. Plaintiffs’ refusal to provide such a certification is troubling, particularly 

given their refusal to provide the transparency Walgreens needs to check their work.

Third, the Court should compel Plaintiffs to supply a log of documents that hit on the key 

terms specifically identified in Walgreens’ Motion, but that Plaintiffs have withheld from 

production. Courts have ordered similar relief in analogous cases, see Progressive, 2014 WL 

3563467, at *11-12 (party that refused to use TAR cooperatively and transparently required to 

produce all non-privileged search-term hits), and it is necessary here because Plaintiffs’ model has 

“deemed irrelevant . . . ‘hot,’ ‘smoking gun’ documents.” Moore, 287 F.R.D. at 189.

II. Documents from 20 Custodians Whom PlaintiffsIdentified for the First Time in Their 

October 17, 2022, Interrogatory Responses Should be Produced

Given Plaintiffs’ meager production, Walgreens asked Plaintiffs on August 10, 2022, to 

identify the names, job responsibilities, and dates of employment of other individuals with 

potentially relevant information. In their October 17, 2022, Interrogatory Responses, Plaintiffs 

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disclosed 49 entirely new potential custodians, but provided no information about the custodians’

roles. See, e.g., Exs. 6, 7. After conducting its own LinkedIn research, Walgreens offered to deprioritize some custodians (while continuing to request custodians who covered temporal and 

subject-matter gaps), and Plaintiffs conceded to the production of documents from others.

Plaintiffs have adamantly refused to produce documents from the remaining 20.8

These individuals almost certainly possess additional relevant documents. Their titles 

include “Contract Administrator”; others hold executive-level positions at OmedaRx, a Plaintiffowned third-party defendant, in addition to their employment with the Plaintiff insurers; and

Plaintiffs themselves named each of the custodians in response to Walgreens’ interrogatory, which 

asked for information about current and former Blue Cross employees in relevant roles. Plaintiffs 

bore the burden of explaining why the employees Plaintiffs themselves identified as 

knowledgeable should not be added as custodians. See Cary v. N.E. Ill. Reg’l Commuter R.R. 

Corp., 2021 WL 678872, at *2, *4 (N.D. Ill. Feb. 22, 2021) (respondent must “provide sufficient 

information” about custodians so adversary “will be able to negotiate intelligently”). Plaintiffs 

have articulated no basis other than “duplication,” which is not supported based on Plaintiffs’ 

previous productions. See Ex. 27. Given the extreme discovery deficiencies documented above,

fewer custodians and documents is not the answer here. Plaintiffs should not be permitted to limit 

discovery based on a bare assertion that additional effort would be duplicative.

CONCLUSION

For the reasons above, Defendants respectfully request that the Court grant their Motion. 

8 Of the 25 disputed custodians in the prioritized list Walgreens sent on December 5, 2022, see Ex. 25 at 

Exhibit B, Plaintiffs agreed to produce documents from 2 custodians and purport to have already agreed to 

produce documents from 2 others (despite no documentation of that supposed agreement). Based on 

Plaintiffs’ representations, Walgreens agrees that Plaintiffs need not produce documents from Young Fried.

Case: 1:20-cv-01853 Document #: 376 Filed: 12/21/22 Page 19 of 21 PageID #:7487
Dated: December 21, 2022 Respectfully submitted,

By: /s/ Jeffrey J. Bushofsky

Jeffrey J. Bushofsky

Laura G. Hoey

Timothy R. Farrell

Charles D. Zagnoli

ROPES & GRAY LLP

191 N. Wacker Drive

32nd Floor

Chicago, IL 60606

Telephone: (312) 845-1200

Facsimile: (312) 845-5522

Jeffrey.Bushofsky@ropesgray.com

Laura.Hoey@ropesgray.com

Timothy.Farrell@ropesgray.com

Charles.Zagnoli@ropesgray.com

Attorneys for Defendant / Counterclaimant / 

Third-Party Plaintiff Walgreen Co. & 

Defendant / Third-Party Plaintiff Walgreens 

Boots Alliance, Inc.

Case: 1:20-cv-01853 Document #: 376 Filed: 12/21/22 Page 20 of 21 PageID #:7488
Certificate of Service

I, Charles D. Zagnoli, hereby certify that the foregoing document was electronically filed 

on December 21, 2022, and will be served electronically via the Court’s ECF Notice system upon 

all registered counsel of record.

 /s/ Charles D. Zagnoli

Charles D. Zagnoli

ROPES & GRAY LLP

191 N. Wacker Dr.

32nd Floor

Chicago, IL 60606

Telephone: (312) 845-1200

Facsimile: (312) 845-5522

Charles.Zagnoli@ropesgray.com

Attorney for Defendant / Counterclaimant / 

Third-Party Plaintiff Walgreen Co. & 

Defendant / Third-Party Plaintiff Walgreens 

Boots Alliance, Inc.

Case: 1:20-cv-01853 Document #: 376 Filed: 12/21/22 Page 21 of 21 PageID #:7489