IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

BCBSM, INC., et al.,

 Plaintiffs, 

v. 

WALGREEN CO. & WALGREENS BOOTS 

ALLIANCE, INC., 

 Defendants.

Case No. 1:20-cv-01853

Honorable Virginia M. Kendall

Honorable Sheila M. Finnegan

Related Cases: 

Case No. 1:20-cv-04738

Case No. 1:20-cv-03332

Case No. 1:20-cv-01929

Case No. 1:20-cv-04940

Case No. 1:22-cv-01362

WALGREEN CO. & WALGREENS BOOTS 

ALLIANCE, INC.,

Third-Party Plaintiffs,

v.

PRIME THERAPEUTICS LLC & OMEDARX, INC.,

Third-Party Defendants.

JOINT STATUS REPORT

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Pursuant to the Court’s November 21, 2022 Order (ECF No. 358), the Initial Plaintiffs,1

the Additional Plaintiffs,2 Defendant / Third-Party Plaintiff Walgreen Co. (“Walgreens”) and 

Defendant Walgreens Boots Alliance, Inc. (together with Walgreens, “Defendants”), and ThirdParty Defendant Prime Therapeutics LLC (“Prime”), through their respective counsel, respectfully

submit the following Joint Status Report.

I. The Current Deadlines Imposed by the Court and Whether the Matter Has

Been Referred to the Magistrate Judge in Any Fashion

A. Deadline for the Close of Fact Discovery

By order dated September 15, 2022 (ECF No. 336), fact discovery is currently set to close 

on April 28, 2023. 

B. Referral to Magistrate Judge

On April 11, 2022, the Court referred this case to Magistrate Judge Sheila Finnegan for 

general discovery supervision. (ECF No. 252.)

 

1 BCBSM, Inc. (d/b/a Blue Cross and Blue shield of Minnesota); HMO Minnesota (d/b/a Blue 

Plus); Health Options, Inc. (d/b/a Florida Blue HMO); Blue Cross and Blue Shield of North 

Carolina; Blue Cross Blue Shield of North Dakota; Blue Cross and Blue Shield of Florida, Inc. 

(d/b/a Florida Blue); Blue Cross and Blue Shield of Alabama; Blue Cross and Blue Shield of 

Kansas, Inc.; Blue Cross and Blue Shield of Massachusetts, Inc.; Blue Cross and Blue Shield of 

Massachusetts HMO Blue, Inc.; Wellmark, Inc. (d/b/a Wellmark Blue Cross and Blue Shield and 

d/b/a Wellmark Blue Cross and Blue Shield of Iowa); Wellmark of South Dakota, Inc. (d/b/a 

Wellmark Blue Cross and Blue Shield of South Dakota); Wellmark Health Plan of Iowa, Inc.; 

Wellmark Synergy Health, Inc.; Wellmark Value Health Plan, Inc.; Blue Cross and Blue Shield of 

Arizona, Inc. (d/b/a Blue Cross Blue Shield of Arizona and d/b/a AZBLUE); Asuris Northwest 

Health; Blue Cross and Blue Shield of Kansas City, Inc.; Cambia Health Solutions, Inc.; Regence 

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

BlueShield of Utah; Regence BlueShield; HealthNow New York, Inc.; Highmark Western New 

York, Inc. (f/k/a Blue Cross of Western New York); Northeastern New York (f/k/a BlueShield of 

Northeastern New York); Horizon Healthcare Services, Inc. (d/b/a Horizon Blue Cross Blue Shield 

of New Jersey); and Horizon Healthcare of New Jersey, Inc. (d/b/a Horizon NJ Health).

2 CareFirst of Maryland, Inc.; Group Hospitalization and Medical Services, Inc.; CareFirst 

BlueChoice, Inc.; Blue Cross and Blue Shield of South Carolina; BlueChoice HealthPlan of South 

Carolina, Inc.; Louisiana Health Service & Indemnity Company, d/b/a/ Blue Cross and Blue Shield 

of Louisiana, and HMO Louisiana, Inc.

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C. Expert Discovery

By order dated September 15, 2022 (ECF No. 336), expert discovery is currently governed 

by the following deadlines:

 June 9, 2023 – Opening expert reports due

 July 18, 2023 – Rebuttal expert reports due

 September 1, 2023 – Close of expert discovery

D. Proposed Pre-Trial Scheduling Order and Dispositive Motions

By order dated September 15, 2022 (ECF No. 336), the parties are to submit a proposed 

pre-trial scheduling order, including deadlines for dispositive and pre-trial motions, by September 

8, 2023.

II. The Progress of Discovery

A. Document Production and Written Interrogatories

As reported in the November 18, 2022 Joint Status Report, the parties are currently 

engaged in written discovery and continue to produce documents and respond to written 

discovery requests. The parties have continued to engage in a largely productive dialogue 

regarding ongoing discovery obligations and have exchanged letters over the course of the past 

several months and weeks outlining concerns and expectations in this regard. There remain open 

disputes regarding the scope of certain written discovery, on which the parties continue to confer. 

On November 22, 2022, the District Court denied Defendants’ motion to dismiss the 

Additional Plaintiffs’ complaint for lack of subject matter jurisdiction (ECF No. 360). Counsel 

for the Additional Plaintiffs and Defendants promptly began conferring on discovery logistics 

following the Court’s November 22, 2022 order. The Additional Plaintiffs and Defendants have 

each served written discovery requests. Defendants have provided the Additional Plaintiffs with 

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the written and document discovery produced by Defendants before the Additional Plaintiffs 

joined the case and served written responses and objections to the Additional Plaintiffs’ document 

requests.

B. Depositions of the Parties and Their Former and Current Employees

Plaintiffs have taken depositions of one current and two former Walgreens employees.

The Initial Plaintiffs / Counter-Defendants and Defendants have exchanged initial drafts 

of topic lists for corporate representative depositions. The Additional Plaintiffs and Defendants 

intend to exchange initial drafts of topic lists in the coming weeks.

C. Parties’ Positions on Discovery Schedule

Initial Plaintiffs/Counter-Defendants’ Position. 

The Initial Plaintiffs incorporate by reference their comments in prior discovery status 

reports. The Initial Plaintiffs anticipate completing all discovery by the dates currently prescribed

in the schedule. Since the filing of the last Joint Status Report on November 18, 2022, the Initial 

Plaintiffs have extended their document productions with more documents produced by the 

overlapping custodians in BCBS of Alabama, et al. v. CVS Health Corp., et al., 1:20-cv-236 

(D.R.I.) (“CVS”) and additional documents from agreed-upon custodians in CVS that were not 

selected originally as production custodians by the Initial Plaintiffs. Further, Initial Plaintiffs have 

agreed to supplement their document productions with responsive files from two new custodians 

and intend to provide additional responsive documents identified as presumptively-relevant by 

their technology-assisted-review model. Initial Plaintiffs’ document review and production 

workflow remains continuous and ongoing. 

Finally, the Initial Plaintiffs dispute Defendants’ assertion regarding “material gaps in 

Plaintiffs’ document productions.”

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Additional Plaintiffs’ Position. 

The Additional Plaintiffs incorporate by reference their comments in prior discovery status 

reports. Following the Court’s ruling on Defendants’ Motion to Dismiss (ECF No. 360), the parties 

are engaging in discovery. Thus far, both Defendants and Additional Plaintiffs have exchanged 

initial discovery requests for both interrogatories and production of documents. The Additional 

Plaintiffs are also pursuing their third-party subpoenas. The Additional Plaintiffs’ also may file an 

Amended Complaint, pursuant to the leave granted by the Court. (ECF No. 360). Their deadline 

to file an Amended Complaint is this Thursday, December 22, 2022.

Defendants’ Position. 

Defendants continue to believe that fact discovery can be completed within the current 

schedule provided that certain fundamental issues underlying Initial Plaintiffs’ document 

productions can be resolved promptly and all Plaintiffs and Prime can complete their document 

productions with dispatch. As reported in the November 18, 2022 Joint Status Report, Defendants 

recently discovered material gaps in the Initial Plaintiffs’ document productions and have raised 

concerns about those gaps’ implications for the Initial Plaintiffs’ broader search and review. 

Defendants expect to file a motion to compel for the Court’s intervention in these matters such that 

Defendants can get sufficient document discovery with enough time to complete their depositions 

within the current schedule.

Third-Party Defendant, Prime’s Position.

Prime expects to complete all discovery within the dates in the current scheduling order.

III. OtherThird-Party Discovery

The Initial Plaintiffs/Counter-Defendants have issued subpoenas to the following thirdparty entities:

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 National Council of Prescription Drug Programs, Inc.

 Pharmaceutical Care Management Association

 Costco Wholesale Corporation

 The Kroger Co.

 Elixir Rx Solutions, LLC

 GoodRx Holdings, Inc.

 Klix, LLC d/b/a Easy Drug Card

 Towers Administrators LLC d/b/a SingleCare Administrators

 NeedyMeds, Inc.

 U.S. Pharmacy Card, LLC

 Discount Drug Network, LLC

 Texas Health and Human Services

 Oregon Health Authority

 Connecticut Department of Social Services

The Additional Plaintiffs have issued subpoenas to the following third-party entities: 

 Caremark, LLC

 Express Scripts, Inc.

 OptumRx, Inc.

 Walmart, Inc.

 Target Corporation

 WAGDCO, LLC

 MedImpact Healthcare Systems, Inc.

 Envolve Pharmacy Solutions Pharmacy Solutions, Inc.

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 Leehar Distributors, LLC

 Medical Security Card Company, LLC

Defendants / Counter-Plaintiff have issued subpoenas to the following third parties:

 Bretta Grinsteinner

 Blue Cross Blue Shield Association

 Caremark, LLC

 Express Scripts, Inc.

 MedImpact Healthcare Systems, Inc.

 OptumRx, Inc.

 Preferred Care Services, Inc.

 EPIC Pharmacy Network, Inc.

 Health Mart Atlas, LLC

 Wholesale Alliance, LLC

IV. The Status of Discovery Motions

The Initial Plaintiffs and Additional Plaintiffs filed on October 21 a Motion to Compel 

(ECF No. 339) the production of certain documents clawed back by Defendants based on a claim 

of privilege or protection. Defendants filed their Opposition to Plaintiffs’ Motion to Compel on 

November 4 (ECF No. 347), Plaintiffs filed a Reply in Support of their Motion to Compel on 

November 11 (ECF No. 349), and Walgreens filed a Motion to Strike Waived Arguments from 

Plaintiffs’ Reply on November 17 (ECF No. 355).

Defendants expect that they also will shortly file a motion to compel related to the material 

gaps in Plaintiffs’ document productions Defendants described above, as well as other issues on 

which the parties have reached an impasse. 

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V. Whether the Parties Have Engaged or Are Engaging in Settlement Discussions

The parties have not engaged in settlement discussions.

VI. Whether the Parties Believe a Telephonic Hearing or In-Person Hearing Is

Necessary Within the Next 60 Days

In the event that Defendants file a motion to compel, Defendants anticipate a need for a 

hearing to resolve such motion. Absent such a motion, the parties do not anticipate the need for 

a hearing within the next 60 days. 

Pursuant to the Court’s May 25, 2022, Order (ECF No. 276), the parties shall continue to 

provide joint status reports at 30-day intervals. Subject to the Court’s approval, the parties will 

file the next status report by January 18, 2023.

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Dated: December 19, 2022 Respectfully submitted,

David L. Applegate (IL Bar# 3122573)

Brigid E. Kennedy (IL Bar # 6201446

WILLIAMS & JOHN LTD.

Suite 6800 Willis Tower233 S. Wacker Drive

Chicago, Illinois 60606

Telephone: (312) 443-3200

Facsimile: (312) 630-8500

dla@willjohnlaw.com

bek@willjohnlaw.com

By: /s/ Kelly H. Hibbert

Kent A. Gardiner (D.C. Bar No. 432081)*

Stephen J. McBrady (D.C. Bar No. 978847)*

Kelly H. Hibbert (D.C. Bar No. 1006010)*

Justin D. Kingsolver (N.D. Ill. Bar No.

6320926)

CROWELL & MORING LLP

1001 Pennsylvania Ave. NW

Washington, D.C. 20004

Telephone: (202) 624-2500

Facsimile: (202) 628-5116

KGardiner@crowell.com

SMcBrady@crowell.com

KHibbert@crowell.com

JKingsolver@crowell.com

* Admitted pro hac vice

Attorneys for Initial Plaintiffs

By: /s/ Timothy R. Farrell

Laura G. Hoey

Jeffrey J. Bushofsky

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

Laura.Hoey@ropesgray.com

Jeffrey.Bushofsky@ropesgray.com

Timothy.Farrell@ropesgray.com

Charles.Zagnoli@ropesgray.com

Attorneys for Defendants / Third-Party 

Plaintiffs Walgreen 

Co. & Walgreens Boots Alliance Inc.

By: /s/ Robert B. Gilmore

Robert B. Gilmore (admitted pro hac vice)

Michael A. Petrino (pro hac vice forthcoming)

Kevin J. Attridge (pro hac vice forthcoming)

Susie Kim (pro hac vice forthcoming)

Megan Benevento (pro hac vice forthcoming)

STEIN MITCHELL BEATO & MISSNER

LLP

901 15th Street, N.W., Suite 700

Washington, D.C. 20005

Tel: (202) 737-7777

Fax: (202) 296-8312

rgilmore@steinmitchell.com

mpetrino@steinmitchell.com

kattridge@steinmitchell.com

skim@steinmitchell.com

mbenevento@steinmitchell.com

Samera Syeda Ludwig

L&G LAW GROUP LLP

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175 West Jackson Blvd, Suite 950

Chicago, Illinois 60604

Tel: (312) 364-2500

Fax: (312) 364-1003

sludwig@lgcounsel.com

Attorneys for the Additional Plaintiffs

Forsgren Fisher McCalmont DeMarea 

Tysver LLP

Robert J. Gilbertson

Virginia R. McCalmont

225 South Sixth Street, Suite 1500

Minneapolis, MN 55402

(612) 474-3300

bgilbertson@forsgrenfisher.com

vmccalmont@forsgrenfisher.com

By: /s/ Robert J. Gilbertson

SALVATORE PRESCOTT PORTER & 

PORTER, PLLC

Andrew C. Porter

Andrea L. Evans

1010 Davis Street

Evanston, IL 60201

(312) 283-5711

aporter@sppplaw.com

evans@sppplaw.com

Attorneys for Third-Party Defendant Prime 

Therapeutics LLC

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CERTIFICATE OF SERVICE

I, Charles D. Zagnoli, an attorney authorized to practice before this Court, hereby 

certify that the foregoing Join Status Report was electronically filed on December 19, 2022, 

and will be served electronically via the Court’s ECF Notice system upon the registered parties 

and counsel of record.

/s/ Charles D. Zagnoli

Charles D. Zagnoli

ROPES & GRAY LLP

191 N. Wacker Drive

32nd Floor

Chicago, IL 60606

Telephone: (312) 845-1200

Facsimile: (312) 845-5522

Charles.Zagnoli@ropesgray.com

Attorney for Defendants / Third-Party 

Plaintiffs Walgreen Co. & Walgreens Boots 

Alliance Inc.

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