IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

BCBSM, INC., et al., )

)

Plaintiffs/Counter-Defendants, )

)

 v. ) No. 20 C 01853

)

WALGREEN CO. & WALGREENS BOOTS ) Magistrate Judge Finnegan

ALLIANCE, INC., )

) Related Cases:

Defendants/Counter-Plaintiffs. ) Case No. 1:20-cv-04738

) Case No. 1:20-cv-03332

) Case No. 1:20-cv01929

WALGREEN CO. & WALGREENS BOOTS ) Case No. 1:20-cv-04940

ALLIANCE, INC., ) Case No. 1:20-cv-01362

)

Third-Party Plaintiffs, )

)

v. )

)

PRIME THERAPEUTICS, LLC, )

)

Third-Party Defendant. )

)

ORDER

Defendants Walgreen Co. and Walgreens Boots Alliance, Inc. (“Walgreens”) filed 

a motion to compel (Doc. 407) the twenty-eight original health care plan plaintiffs (referred 

to herein as “Plaintiffs”)

1 to respond to certain document requests and interrogatories. 

For the reasons stated herein, the motion is granted.

1 These include the original plaintiffs but not the so-called “CareFirst” plaintiffs who sued Walgreens 

in March 2022. (Doc. 407, at 1 & n.1).

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DISCUSSION

A. Motion to Compel Response to Interrogatory No. 26

(1) Background

Plaintiffs are health care plans offering comprehensive health care services and 

coverage, including prescription drug coverage, to their members (“insureds”) in locations 

across the United States. When a Walgreens pharmacy dispenses a prescription to an 

insured, Walgreens sends a claim for reimbursement to Plaintiffs’ pharmacy benefit 

managers (“PBMs”), which then submit a claim for payment to Plaintiffs. Plaintiffs

reimbursed Walgreens for the usual and customary (“U&C”) prices associated with filling 

prescriptions for their insureds. They claim that they did not know that Walgreens had a 

Prescription Savings Club (“PSC”) program that charged prices lower than U&C prices. 

(Doc. 145 ¶¶ 8, 100-106 (Second Amended Complaint)). Plaintiffs allege that Walgreens 

overstated U&C prices by not using its lower PSC pricing, and thus owes them “hundreds 

of millions” in damages. (Id. ¶¶ 1, 81, 127, 137). 

Defendants say they served Interrogatory 26 on the “Prime-Affiliated Plaintiffs, a 

set of Blue Cross-affiliated Plaintiffs that use or have used Prime Therapeutics LLC” 

(“Prime”) as their PBM. (Doc. 407, at 4). It seeks information about the financial 

relationship between these Plaintiffs and Prime in connection with Walgreens’ third-party 

complaint against Prime for contribution. Prime was the entity responsible for 

adjudicating Walgreens’ reimbursement claims on behalf of the Prime-Affiliated Plaintiffs. 

(Doc. 270 ¶¶ 5, 39 (Prime’s Answer to Walgreens’ First Amended Third-Party 

Complaint)). For this service, Prime charged these plaintiffs a fee, kept the difference 

between what it received from a plaintiff and the amount it paid to Walgreens (so-called 

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“spread compensation”), or both. (Id. ¶ 44). Prime had separate confidential contracts 

with each Prime-Affiliated Plaintiff and with Walgreens governing these tasks. (Id. ¶ 7). 

While serving as PBM, Prime allegedly “was always fully aware of Walgreens’ U&C 

price reporting policies and practices, including the fact that Walgreens [did] not report, 

and never has reported, the exceptional prices available to PSC members as its U&C 

prices.” (Id. ¶ 9). “Prime nonetheless adjudicated Walgreens’ reimbursement claims 

using Walgreens’ allegedly false U&C prices, thereby proximately harming the [PrimeAffiliated Plaintiffs] and contributing to the loss allegedly suffered” by them. (Id. ¶ 10). 

Indeed, Prime “had an enforceable duty” to these Plaintiffs “to convey accurate U&C

prices and other claim-related information to them” and, “unlike Walgreens, at all times

had a direct relationship with the [Prime-Affiliated Plaintiffs] and was their corporate 

affiliate.” (Id. ¶ 12). If these plaintiffs “were deceived and damaged by Walgreens’ U&C 

reporting, then Prime is a joint tortfeasor that shares responsibility for some material part” 

of that harm.” (Id. ¶ 4). 

Regarding the affiliation between Prime and these plaintiffs, Walgreens alleges 

that Prime is owned by Blue Cross-affiliated insurers, including certain of the PrimeAffiliated Plaintiffs. Eleven of Prime’s “owner clients” are Plaintiffs, and “Prime’s board of 

directors consists almost entirely of the chief executive officers of Blue Cross Blue Shieldaffiliated health plans, including the chief executive officers of seven” Prime-Affiliated 

Plaintiffs. (Id. ¶ 38). Walgreens thus claims that Prime and the Prime-Affiliated Plaintiffs 

had an “intertwined financial relationship.” (Doc. 407, at 5).

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In Interrogatory No. 26, Walgreens sought the following information from certain

Prime-Affiliated Plaintiffs:

2

[i]dentify the projected and actual annual revenues and profits you have 

received from owning an equity interest, ownership interest, or debt interest 

in Prime for each calendar or fiscal year during the Time Period [defined as 

August 1, 2006 to the present].

3

(Doc. 377-12, at 9, 12; see Doc. 407, at 5). In responding under Fed. R. Civ. P. 33, the

plaintiffs objected to this request as “overbroad, unduly burdensome, and seeking 

information that is irrelevant to any claims or defenses in this matter and is not 

proportional to the needs of this case.” (E.g., Doc. 377-6, at 7). No reasons were given 

for each such conclusory objection. After fruitless meet and confer discussions led to an 

impasse, Walgreens filed this motion to compel. 

(2) Analysis

As Walgreens sees it, “Prime is the intermediary between Walgreens and the 

Prime-Affiliated Plaintiffs for the U&C price reporting central to this case; thus, the 

economics of the relationship between Prime and its Plaintiff-owners are directly relevant 

to both the supposed damages the Prime-Affiliated Plaintiffs claim they suffered and the 

bias weighing on the Prime-Affiliated Plaintiffs and Prime resulting from those 

economics.” (Doc. 407, at 4). Walgreens further argues that the objections made in 

response to Interrogatory 26 do not pass muster under Rule 33(b)(4)’s mandate that 

objections be stated “with specificity.” (Id. at 5-6). The Court agrees. Because the 

2

Interrogatory 26 was issued to BCBS Alabama, BCBS Kansas, BCBS Minnesota, BCBS North 

Carolina, BCBS North Dakota, Florida Blue, Cambia, and Horizon. (Doc. 418, at n.3).

3 The Second Amended Complaint complains of conduct by Walgreens from approximately 2007 to 

2019, when Plaintiffs say they discovered “the bases” for their claims. (See Doc. 145 ¶¶ 7, 115).

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objections did not provide any underlying explanation, however minimal, they were 

“tantamount to not making any objection at all.” See Loughnane v. Zukowski, Rogers, 

Flood and McArdle, 2019 WL 13073480, at *10 (N.D. Ill. Dec. 2, 2019) (citation omitted). 

This alone justifies granting the motion to compel.

Even without these deficiencies, however, the Court would overrule these 

objections because the data sought appears to be relevant. First, Walgreens argues that 

the information bears on damages. Walgreens’ theory is based on its claim that Prime 

sometimes received spread compensation (the difference between what it received from 

a plaintiff and the amount it paid to Walgreens) which may have resulted in providing

higher profits to Prime, “and, by extension, Prime’s Blue Cross-owners,” that could be a 

potential offset to damages and/or an increase in contribution liability. (Doc. 407, at 6). 

Put another way, Walgreens seeks discovery relating to the claim that the higher prices 

these plaintiffs allegedly paid flowed through Prime’s pockets back into the pockets of the 

Prime-Affiliated Plaintiffs. Walgreens also argues that if its allegedly inflated U&C prices

resulted in higher fees to Prime, that also could have ultimately benefitted these plaintiffs

even without the use of spread compensation. (Id.).

Plaintiffs deny that Prime received spread compensation, pointing out that Prime

denied Walgreens’ allegations on this issue. (Doc. 418, at 14). But one cannot tell from 

Prime’s answer which facts are denied. (See Doc. 270 ¶ 44). Plaintiffs’ reliance on one 

of Prime’s interrogatory answers fares no better. In responding to the question “Describe 

all ways in which you generate profit, revenue, or other financial gain by serving as an 

intermediary between Plaintiff-Owners and Walgreens,” Prime objected to the time period 

and number of Plaintiffs covered by the question and gave a response that was equivocal, 

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general in nature, and insufficiently detailed.4 Plaintiffs also argue that they produced 

their Prime contracts to Walgreens and that this “ends the inquiry.” (Doc. 418, at 14-15; 

Doc. 419 ¶ 16). But Plaintiffs simply attach (under seal) contracts to their brief without 

any explanation of what they mean. (See Doc. 419 ¶ 16). 

Given the enormous damages being sought against Walgreens, it would be 

inappropriate to deny discovery of the facts at issue where there is a reasonable theory 

of relevancy, and especially where this would require resolving a factual dispute in 

Plaintiffs' favor based on an ambiguous record. Walgreens has shown the discovery is 

sufficiently relevant to damages to sustain its request.

5

Walgreens supports its motion with a second viable theory of relevancy. It argues 

that the “intertwined financial relationship” that Walgreens is seeking to prove between 

Prime and the Prime-Affiliated Plaintiffs, including the extent to which Prime enriched 

these plaintiffs and the way Prime was paid, is also relevant to these parties’ potential 

4 The time period and number of plaintiffs covered by this interrogatory are a function of Plaintiffs’ 

allegations, on which Walgreens is entitled to discovery. 

5 None of Plaintiffs’ citations suggest otherwise. Eternity Mart, Inc. v. Nature’s Sources, LLC, 2019 

WL 6052366, at *3 (N.D. Ill. Nov. 15, 2019) (Doc. 418, at 13), disallowed speculative discovery into 

complaints against the plaintiff made before the acts triggering the lawsuit (suspension from Amazon) 

because they long pre-dated the suspension and because Amazon identified defendant’s complaint as the 

reason for the suspension. United States v. Ocwen Loan Servicing, LLC., 2016 WL 1031157, at *4 n.2 

(E.D. Tex. Mar. 15, 2016) (Doc. 418, at 15), is also inapposite. There the court said it would not rely on 

unsupported claims about what plaintiff may have received from litigationfunders, but nevertheless allowed 

discovery of the identity of those funders as relevant to the case. Lyft, Inc. v. Quartz Auto Techs. LLC, 

2022 WL 17076703, at *2 (N.D. Cal. Nov. 18, 2022) (Doc. 418, at 15), is similarly inapposite because, 

unlike here, the proponent of discovery simply demanded “more” details with no discussion of relevance. 

And in DeLeon-Reyes v. Guevera, 2020 WL 3050230, at *7-11 (N.D. Ill. June 8, 2020) (Doc. 418, at 15), 

plaintiffs sought discovery based on “guesswork”, namely, a theory (bribes) that bore no relation to their 

case (wrongful conviction) and events taking place 12 years after those at issue in the case. In contrast to 

these cases, Walgreens has information about the interrelationship between Prime and the Prime-Affiliated 

Plaintiffs. 

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bias. (Doc. 407, at 5, 7). “Bias in its myriad forms is always relevant and never collateral.” 

Surgery Ctr. at 900 N. Mich. Ave., LLC v. Am. Phys. Assurance Corp., 317 F.R.D. 620, 

625-26 (N.D. Ill. 2016) (allowing discovery of potential incentive plans or bonuses as 

relevant to bias). Plaintiffs say the historical benefits they received from Prime are 

irrelevant to bias today since they predate their testimony (Doc. 418, at 15-16), but even 

crediting that argument, such benefits could shed light on contemporaneous statements 

and documents. In any event, this argument goes to the weight of the evidence in 

establishing bias and is an insufficient basis to bar discovery of the evidence.

6

Plaintiffs do not make a viable burden argument in their response to Walgreen’s 

motion, despite their assertion of undue burden in their interrogatory response. They 

mention the burden of responding only in passing (Doc. 418, at 7), and without developing

the argument. “Claims of undue burdensomeness require a specific showing of what is 

involved.” In re Peregrine Fin. Grp. Customer Litig., 2015 WL 1344466, at *4 (N.D. Ill. 

Mar. 20, 2015). Plaintiffs have not even attempted to make this showing.

Instead, Plaintiffs say that “compiling additional, irrelevant financial information 

would not be proportional” to the case. (Doc. 418, at 16). The Court has, however, found 

the requested information to be relevant. They also claim that Walgreens already has 

that information, but the citations they provide for that assertion (Doc. 418, at 15-16), do 

not support this claim. Finally, they assert that some of these Plaintiffs have no ownership 

interests in Prime, making this discovery disproportionate to the case. (Doc. 418, at 13, 

6 Plaintiffs’ reliance on West v. Miller, 2006 WL 2349988 (N.D. Ill. Aug. 11, 2006) (Doc. 418, at 16),

in making this argument, is misplaced. West concerned how the passage of time could affect market value, 

not bias.

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16-17). Discovery responses filed under seal (the redacted exhibits are at Docs. 419-6 

and 419-8), in which certain Plaintiffs admitted to having such ownership interests, as well 

as the right to appoint a Prime board member, through certain named (but undescribed) 

entities, undermine this argument. And their reliance on Bilek v. Nat’l Cong. Of Emps., 

Inc., 2022 WL 523108 (N.D. Ill. Feb. 22, 2022) (Doc. 418, at 16-17), for their 

disproportionality argument is unavailing. There plaintiff sought extensive financial 

information on whether the defendant could satisfy a judgment, a request deemed

premature and overbroad. Here, Walgreens seeks only annual financial data that has not 

been shown to be too burdensome to produce. The motion to compel is granted. 

B. Motion to Compel Responses to Interrogatories Nos. 13, 14, and 16

These interrogatories (“ROG”) seek information about common interest 

agreements (ROG 13), litigation financing or funding, including contingency fee

arrangements (ROG 14), and insurance contracts or policies covering any part of 

Plaintiffs’ costs in this case (ROG 16) between or among Plaintiffs and other persons and 

third parties, including their counsel. The Court addresses each in turn.

Interrogatory No. 13. In this interrogatory, Walgreens seeks information about 

joint defense and related agreements. 

Identify and describe any common interest agreement, joint defense 

agreement, or other agreement or arrangement under which you assert a 

joint attorney-client privilege with any other person (including any other 

Plaintiffs in this lawsuit) in which the privileged communications relate to 

U&C Prices, Discount Programs (including PSC), or any other matter at 

issue in this Action, identifying any and all other members of or parties to 

such agreements, arrangements, or groups.

(Doc. 408-2, at 13-14). Plaintiffs objected to each interrogatory as “overly broad, unduly 

burdensome, seek[ing] information that is irrelevant to any claims or defenses in this 

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matter, and not proportional to the needs of the case” and because it seeks “information 

protected by the attorney-client privilege, the work product doctrine, the joint prosecution 

or common interest privilege, as trial preparation materials, or under any other privilege 

or immunity recognized by law.” (Id. at 14). Such conclusory objections carry no weight 

and could be stricken, but the objections Plaintiffs ultimately advanced in opposing this 

motion to compel are untenable in any event.

Written or oral joint defense or common interest agreements are potentially

relevant. Depending on their contents, including their recitals of interests and objectives 

in common, such agreements bear on witness bias. Harris Corp. v. Federal Express 

Corp., 2010 WL 11474447, at *2 (M.D. Fla. July 19, 2010) (common interest in voiding 

patent between two companies relevant to witness bias regarding patent).7 Here, for 

example, Walgreens argues that it is entitled to know if any party or non-party witness—

including Prime’s former employee Bretta Grinsteinner, who has provided testimony in 

this matter—has entered into a joint-defense agreement. (Doc. 408-1; 407 at 11). The 

Court agrees, and so the information sought by this interrogatory must be provided. 

Walgreens also argues that the timing of the agreements is relevant to its statute 

of limitations and related defenses. (Doc. 407, at 10). For example, it alleges that the 

claims are untimely because Plaintiffs and their PBMs (such as Prime) were aware of 

7 Biovail Labs. Int’l SRL v. Watson Pharm., Inc., 2010 WL 3447187, at *1 (S.D. Fla. Aug. 30, 2010), 

on which Plaintiffs rely (Doc. 418, at 11), is not to the contrary. That court recognized that information about 

the parties to a joint defense agreement is relevant to bias and did not hold that joint defense agreements 

are never relevant. (Id.). Rather, the party in that case seeking production of the agreement said that the 

agreement would not be relevant if it contained only “boilerplate terms,”which the Court found was the case 

after an in camera review. Here, Walgreens makes no such concession, nor have Plaintiffs argued their

agreements contain only boilerplate terms. 

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Walgreens’ PSC program for years because of “related litigation against Walgreens and 

other pharmacies in this District and other Courts nationwide.” (Id.) The contents of the 

agreements are thus relevant for this second reason.

Finally, Plaintiffs provide no basis for asserting that the information sought in 

Interrogatory No. 13 is privileged. Indeed, after Walgreens filed the instant motion, 

Plaintiffs belatedly conceded that certain facts relating to “common-interest agreements, 

engagement letters, and contracts—such as their existence, their effective dates, and the 

parties to them”—are not privileged and agreed to produce such information in “short 

order.” (Doc. 418, at 10). While Plaintiffs continue to assert privilege as to other

information in the agreements, they fail to offer any supporting argument, much less proof, 

that a privilege applies to such information. It was Plaintiffs’ burden to show that a 

privilege attached to the information sought. Shaffer v. American Med. Ass’n., 662 F.3d 

439, 446 (7th Cir. 2011) (attorney-client privilege); Baxter Int’l, Inc. v. AXA Versicherung, 

320 F.R.D. 158, 163 (N.D. Ill. 2017) (work product). The interrogatory should be 

answered. E.g., Trading Techs. Int’l, Inc. v. eSpeed, Inc., 2007 WL 1302765, at *2 (N.D. 

Ill. May 1, 2007) (ordering production of joint defense agreement).

Interrogatory No. 14. This interrogatory seeks information about various 

agreements relating to attorneys’ fees and litigation financing. 

Identify and describe any litigation financing or funding arrangement or

agreement, contingent attorneys’ fee arrangement or agreement, or other 

arrangement or agreement under which any part of the attorneys’ fees or 

other costs arising from or relating to this Action will be paid or advanced by 

any third party, or under which any third party (including your counsel) has 

an interest in any proceeds from this litigation, contingent or otherwise, 

describing the terms of such agreements and identifying the parties thereto.

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(Doc. 408-2, at 14). Walgreens claims that the information sought about these 

agreements is also relevant to its statute-of-limitations defense. (Doc. 407, at 10). 

Walgreens believes the timing of the agreements will show that Plaintiffs and their 

attorneys had actual or constructive knowledge of the factual bases for the claims 

asserted here for years, rendering the claims untimely. The Court agrees that, depending 

on the timing and content of these agreements, they could support that defense. See Doe 

v. Soc. of Missionaries of the Sacred Heart, 2014 WL 1715376, at *3 (N.D. Ill. May 1, 

2014) (litigation financing agreements may bear on limitations defenses). 

Plaintiffs contend that the discovery should not be allowed since they already 

answered interrogatories about when they first communicated with a law firm about the 

substance of these claims, and first came upon “publicly-available information” 

suggesting Walgreens’ prices excluded discount pricing from it U&C prices. (Doc. 418, 

at 11, citing ROGs 3 and 4). But admittedly half of the Plaintiffs have not yet responded

to this discovery (Doc. 418, at 11, n.8), despite Walgreens’ demand for a response in 

December 2021 (Doc. 408-5, at 4). Even if all Plaintiffs had responded, however, the 

Court agrees with Walgreens that the discovery sought here is not irrelevant, cumulative, 

or disproportionately burdensome. 

This discovery seeks information beyond what was sought in these other 

interrogatories and is also relevant to damages given that Plaintiffs seek recovery of their 

attorneys’ fees and costs from Walgreens. (Doc. 145, at 85). Plaintiffs argue that it is 

premature to order production of materials relating to payment of attorneys’ fees and

costs, since these are recoverable “only if Plaintiffs prevail.” (Doc. 418, at 12.) Plaintiffs 

waived this objection by not making it in response to the interrogatory. Fed. R. Civ. P. 

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33(b)(4); see Doc. 408-2, at 14. In any event, Plaintiffs present no argument, much less 

proof, that producing information about fee arrangements now is unduly burdensome or 

disproportionate. In a case of this magnitude, Walgreens is entitled to understand the 

scope of its fee exposure, at least as memorialized in agreements. See Emerus Hosp. 

Partners, LLC v. Health Care Serv. Corp., 2015 WL 13950105, at *3 (N.D. Ill. Nov. 19, 

2015) (ordering production of fee information before conclusion of case).

Finally, Plaintiffs argue that Walgreens’ request in ROG 14 goes further than in 

ROG 13 since it seeks “detailed, potentially privileged information and communications 

between Plaintiffs and their lawyers with respect to financing, funding, and contingent (or 

not) fee structures.” (Doc. 418, at 10). But fee information is typically not privileged. 

United States v. Leonard-Allen, 739 F.3d 948, 953 (7th Cir. 2013) (fee arrangements fall 

“outside the scope of the privilege because fees are incidental to the substance of 

representation”); Dunn v. Schlumberger Tech. Corp., 2010 WL 11646536, at *2 (S.D. Tex. 

July 20, 2010) (contingency fee agreement discoverable and not privileged where 

prevailing party may recover attorneys’ fees). Plaintiffs’ reliance on Kratzer v. Scott Hotel 

Group, LLC, 2019 WL 8326691, at *5 (S.D. Ind. Apr. 23, 2019) (Doc. 418, at 10), does 

not help them because there, the producing party was allowed to redact portions of his 

fee agreement with counsel that “memorialize[d] advice from lawyer to client about the 

nature of the claims and Mr. Kratzer’s role as a class representative.” Plaintiffs make no 

claim that their agreements contain legal advice. The motion to compel is granted as to 

Interrogatory No. 14.

Interrogatory No. 16. In this interrogatory, Walgreens seeks certain insurance or 

indemnification policies that might cover Plaintiffs’ costs.

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Identify and describe any insurance contract or policy, indemnification

agreement or obligation (including agreements with or obligations owed by 

any PBM), or any other contract or arrangement that will or may cover any 

part of your costs related to this Action, including costs for the defense of 

any counterclaims or third-party claims asserted against you.

(Doc. 408-2, at 15.) In opposing Walgreens’ motion as to this interrogatory, Plaintiffs state 

that because this information was required under the initial disclosure rules, they had

already responded that they have no such agreements. (Doc. 418, at 11-12 & n.7). 

Providing sworn responses to that effect is appropriate and not burdensome per this 

admission, and the motion is thus granted. 

C. Motion to Compel Responses to Interrogatory No. 10 and Requests for 

Production No. 38-39

Interrogatory No. 10 asks Plaintiffs to:

Describe the method or process that you used to create Exhibit 2 to the 

Complaint, including identification of all Documents and sources reviewed, 

relied upon, consulted, drawn upon, or otherwise referenced in the course 

of creating such Exhibit 2, and identification of all persons who were 

consulted on or contributed information to the creation of Exhibit 2.

(Doc. 408-2, at 11-12). Exhibit 2 is a chart of sample overcharges that are part of the 

allegations of the complaint. (Doc. 145-2; Doc. 145 ¶ 94 (“How Walgreens overcharged 

Plaintiffs on millions of claims is exemplified by the examples of apparent overcharges 

detailed in the attached Exhibit 2 to this Complaint.”)). Document Request No. 38 seeks 

“All Documents supporting or forming the basis for the Complaint’s exhibits” (Doc 377-5,

at 27), while Document Request No. 39 seeks “Documents sufficient to support the data 

in exhibit 2 to the Complaint” (Doc. 377-5, at 28). Exhibit 1 is the only other attachment 

to the complaint, a Walgreens’ advertisement for the PSC program. (Doc. 145-1). These 

exhibits have been part of the case since the complaint was filed on March 19, 2020. 

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Plaintiffs’ Rule 33 and 34 responses to all three discovery requests said Walgreens 

already had this information, the request is “premature” because (a) it sought “an 

extensive volume of evidence in support of [Plaintiffs’] case, even though discovery is in 

its early stages, no document productions have occurred, no depositions have occurred, 

and expert discovery has yet to begin”; and (b) “to the extent it seeks information that will 

be the subject of expert reports.” (E.g., Doc. 408-2, at 11-12; Doc. 377-5, at 27-28). They 

also asserted attorney-client privilege, the work product doctrine, the joint prosecution or 

common interest privilege, trial preparation privilege, and any other privilege or immunity 

recognized by law. (Doc. 408-2, at 12). 

In opposing this motion, however, Plaintiffs abandon most of these objections. 

They now contend that the motion seeks to compel “the production of protected work 

product underlying certain claims examples and a publicly-accessible Walgreens 

Prescription Savings Club pricing formulary” (i.e., Exhibits 1 and 2 to their complaint). 

(Doc. 418, at 7). They further state that Exhibit 2 was prepared “by non-testifying 

consulting experts working in conjunction with Plaintiffs’ counsel in this litigation” and that 

answering the discovery would “reveal not just the mental impressions of counsel, but 

also the identities and opinions of Plaintiffs’ non-testifying consulting experts.” (Doc. 418,

at 8; see also Doc. 419 ¶ 18 (lawyer’s affidavit); Fed. R. Civ. P. 26(b)(4)(D)).

As an initial matter, “any opinions or records developed or acquired by [Plaintiffs] 

prior to consultation” with the consulting expert “fall outside the protection of Rule 

26(b)(4)(B).” Spearman Indus., Inc. v. St. Paul Fire & Marine Inc. Co., 128 F. Supp. 2d 

1148, 1152 (N.D. Ill. 2001) (relied upon by Plaintiffs at Doc. 418, at 8). Therefore, such 

documents and information must be produced promptly. 

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In addition, Plaintiffs’ assertion of the consulting expert objection to Exhibit 2 is 

wholly conclusory; they discuss no documents (individually or by category), much less 

produce a privilege log. This is especially troubling since, as Walgreens rightly points 

out, the consulting expert claim here varies from Plaintiffs’ written response to 

Interrogatory No. 10 asserting that the process used to create Exhibit 2 will be answered 

by “the forthcoming expert report(s),” clearly a reference to a testifying expert.8 

In any event, to make a viable claim of work product protection, Plaintiffs “bear[ ]

the burden of establishing that the doctrine applies to each document as to which it is 

asserted.” Baxter Int’l, Inc., 320 F.R.D. at 163. Here, Plaintiffs submitted an affidavit

asserting merely that their counsel “engaged with non-testifying consulting experts to 

compile information used to create Exhibit 2 to the Complaint.” (Doc. 419 ¶ 18). Such a 

blanket privilege claim is insufficient to establish that documents are privileged, United 

States v. First State Bank, 691 F.2d 332, 335 (7th Cir. 1982); McCutcheon v. ColgatePalmolive, Co., 2017 WL 4776984, at *4 (S.D.N.Y. Oct. 5, 2017), much less to allow the 

opposing party or the Court to analyze the claim. 

Moreover, Plaintiffs’ reliance on an alleged consulting expert’s work product in their 

complaint waived any work product protection that might otherwise have existed. U.S. 

Gypsum Co. v. Ectek Int’l, Inc., 2022 WL 1155155, at *9 (N.D. Ill. Apr. 19, 2022) (holding 

that any protection under Rule 26(b)(4)(D) for a report was waived when defendant 

8 See also Doc. 408-7, at 5, a letter in which Plaintiffs’ counsel states, as to Document Requests 

Nos. 38-39: “With respect to Exhibit 2, a chart depicting apparent over charge examples, Plaintiffs object 

to Request Nos. 38 and 39 as premature, as they seek information that is subject to forthcoming expert 

testimony and which will be disclosed according to the stipulated case management order entered in this 

case.” (Cited by Plaintiffs at Doc. 418, at 8-9). 

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produced the report to plaintiff); see Appleton Papers, Inc. v. E.P.A., 702 F.3d 1018, 1024 

(7th Cir. 2012) (concept of waiver applies to Rule 26(b)(4)(D)).9 And because Plaintiffs’

complaint freely discloses how the report was prepared, alleging that “[t]hese exemplar 

overcharges are based on assumptions Plaintiffs have made as a result of the limited 

information available to them regarding Walgreens PSC Program and will be confirmed” 

through discovery (Doc. 145 ¶ 94, n. 35), such “assumptions,” the “information available” 

to Plaintiffs, and the chart preparation are also fair game for discovery. 

Plaintiffs’ reliance on nCap Licensing, LLC. V. Apple, Inc., 2018 WL 10509455, at 

*2-3 (D. Utah Dec. 17, 2018) (cited at Doc. 418, at n.6), is misplaced. In that patent case, 

the court found only that relying on work product to file a case does not constitute waiver; 

the party must expressly rely on that evidence to support its claims to cause a waiver. 

Plaintiffs did that here when they alleged that “[h]ow Walgreens overcharged Plaintiffs on 

millions of claims is exemplified by the examples of apparent overcharges detailed in the 

attached Exhibit 2” (Doc. 145 ¶ 94). The motion is thus granted, but the responses may

be limited to the facts and documents existing at the time the initial complaint was filed. 

The motion to compel is also granted as to Exhibit 1, which is a Walgreens’ 

advertisement of drugs available for $12.99 (90 day supply) through the PSC program as 

of “12/13/07”. (Doc. 145-1). It is unclear what documents Plaintiffs would have

9 Rule 26(b)(4)(D) states in full:

(D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or 

deposition, discover facts known or opinions held by an expert who has been retained or specially employed 

by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a 

witness at trial. But a party may do so only:

(i) as provided in Rule 35(b); or

(ii) on showing exceptional circumstances under which it is impracticable for the party to 

obtain facts or opinions on the same subject by other means.

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“supporting or forming the basis for” Exhibit 1 (Request No. 38) since Walgreens 

presumably created that public document. It is cited in the complaint as an “illustration” 

of how Walgreens’ price lists provided limited information about discounted drugs. (Doc. 

145 ¶ 84). But Plaintiffs do not discuss any specific objections to production of responsive 

documents. The motion to compel is also granted as to facts and documents existing at 

the time the initial complaint was filed. 

D. Requests for Admission Nos. 148-160

(1) Background

Requests for admission (“RFA”) Nos. 148-160 relate to Plaintiffs’ Consumer Fraud 

Act claims against Walgreens. (See Doc. 408-8, at 6-10). They are designed to 

determine if these claims are based on intentional or other (such as reckless or negligent)

alleged misconduct by Walgreens. Thus, for example, RFAs 148, 150, 153, and 156 seek 

admissions that “for purposes of your consumer fraud and consumer protection claims ... 

you contend that Walgreen Co. submitted a U&C Price to you”:

• (RFA 148) “knowing the price was false or misleading”

• (RFA 150) “with reckless disregard as to whether the price was false or 

misleading”

• (RFA 153) “without exercising reasonable care to determine that the price 

was false or misleading”

• (RFA 156) “not knowing that the U&C Price was false or misleading” 

(Id. at 6-9). RFAs Nos. 149, 151, 154, and 157 seek admissions about Plaintiffs’ intent 

to prove these varying degrees of Walgreens’ mental state under their consumer fraud 

and protection claims. RFAs Nos. 152, 155, and 158 seek similar admissions regarding 

Plaintiffs’ ability to recover damages under those claims. Finally, RFAs Nos. 159-160 

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seek admissions on whether Plaintiffs are asserting non-scienter theories under these 

consumer fraud and protection claims. Plaintiffs objected to responding. (Id.).

Walgreens moves to compel responses to these RFAs because denial of its motion 

to amend its contribution claims against Prime was based on Prime’s argument that 

Plaintiffs’ claims were based only on intentional torts as to which claims for contribution

are barred in seven states. (Doc. 407, at 13-14; Doc. 253, at 4 (denial of motion to amend 

because Plaintiffs “purport to prove Walgreens’ fraudulent intent”)). According to 

Walgreens, “Plaintiffs sat by passively while Prime characterized Plaintiffs’ consumer 

claims as being limited to intentional misconduct for which contribution is unavailable in 

certain states . . . [and] then said nothing to the contrary when the Court expressly agreed 

with Prime.” (Doc. 407, at 13; see also Doc. 237, at 11-12 (Prime’s argument)). 

Walgreens now seeks “confirmation from Plaintiffs that they agree with Prime’s 

characterization.” (Doc. 407, at 13). 

(2) Analysis

Requests for admission may be directed to facts, the application of law to fact, and 

opinions about either. Fed. R. Civ. P. 36(a)(1)(A). They are used to “determine which 

elements of each claim are still in dispute”; in such cases, a “response to the requests will 

serve to narrow and define the issues for trial.” Intertech Res., Inc. v. Vital Signs, Inc., 

1996 WL 637860, at *2 (N.D. Ill. Nov. 1996). Here, the requests fall into a category 

sometimes described as “contention” requests for admission. See generally Think 

Products, Inc. v. ACCO Brands Corp., 2023 WL 2539669, at *6 (N.D. Ill. Mar. 16 2023)

(finding contention requests for admission to be proper). 

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The Court rejects Plaintiffs’ argument that the requests here seek legal 

conclusions. On their face, they do not, and none of Plaintiffs’ cases for this argument 

(Doc. 418, at 17) is apposite. “[R]equests on mixed matters of law and fact or other legal 

conclusions that directly relate to the facts of the case are authorized” under Rule 

36(a)(1)(A). Hart v. Dow Chem., 1997 WL 627645, at *8 (N.D. Ill. Sept. 30, 1997). This 

includes, for example, “RFAs which call upon [a party] to admit its understanding and 

opinion as to how the specified statutes would apply.” Breuder v. Bd. of Trs. of Cmty. 

Coll. Dist. No. 502, 2021 WL 1165089, at *4–5 (N.D. Ill. Mar. 25, 2021). In contrast, an 

RFA asking a pure legal question is improper. E.g., Stanek v. St. Charles Comm. Unit 

School Dist. #303, 2020 WL 9348257, at *3 (N.D. Ill. Oct. 9, 2020) (request for admission 

on meaning of statute improper as concerned pure matter of law). None of Walgreens’ 

RFAs poses a pure question of law. Plaintiffs argue that the RFAs ask them “to describe 

legal rights under different legal scenarios.” (Doc. 418, at 17). This is incorrect; the RFAs

ask questions based on different factual scenarios, which falls squarely within Rule 36’s 

allowance of requests for admission about “the application of law to fact.”

Nor do the requests, by trying to delineate the scope of Plaintiffs’ claims, seek 

attorney work product, as Plaintiffs argue. (Id. at 18). Plaintiffs, who have the burden of 

showing that the work product privilege applies here, never explain why responding to 

this discovery would invade attorney work product, and none of Plaintiffs’ cases is on 

point. All Plaintiffs say in this regard is that the RFAs ask them to “admit or deny their 

intended legal theories [and so] necessarily require[ ] divulging Plaintiffs’ legal strategy,”

relying on Itex, Inc. v. Workrite Unif. Co. Inc., 2011 WL 1224920, at *1 (N.D. Ill. Mar. 31, 

2011). In that case, plaintiffs objected to answering a request for admission about 

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whether they conducted pre-suit testing, arguing that it would reveal their counsel’s 

strategy in preparing the lawsuit. While the court agreed that work product protections 

may extend to responses to requests for admission, it explained that the doctrine should 

not be used to shield any item that could reveal some hint of a lawyer’s mental 

impressions. Id. at *1. The court then held that responding to the request for admission 

would not implicate work product since it would not reveal whether the pre-suit testing 

was done at the direction of counsel but only that it was done at all. Id. at *1-2. The same 

is true here. Attempting to understand what claims Plaintiffs are asserting in this case is 

crucial information; responding to the RFAs does not reveal anything about counsel’s 

opinions, impressions, or directions about those issues. 

Finally, Plaintiffs’ argument that the requests are premature because they were 

served before discovery closed is also unsupported. (Doc. 418, at 19). Plaintiffs rely on 

Ziemack v. Centel Corp., 1995 WL 729295, at *2 (N.D. Ill. Dec. 7, 1995), in making this 

argument, but that court did not hold that contention interrogatories were always 

premature before the close of discovery. It held that each interrogatory had to be 

analyzed individually, compelling responses to certain contention interrogatories before 

the close of discovery. 

Here, Walgreens has shown a reasonable need at this advanced stage of the case 

to know the scope of Plaintiffs’ claims for discovery and pleading purposes. (Doc. 407, 

at 14 (arguing that the responses “will critically define and narrow the issues for various 

matters and tasks—depositions, expert reports and testimony, summary judgment 

briefing, jury instructions, trial evidence, and opening statements”)). In addition, the 

answers may affect whether Walgreens has a basis to revisit third party contribution 

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claims that were precluded based on Prime’s representation that Plaintiffs’ consumer

claims were limited to intentional misconduct. Thus these requests do not seek an 

“illusory” narrowing of any claims, as Plaintiffs argue (Doc. 418, at 19-20), citing U.S. ex 

rel. Tyson v. Amerigroup Illinois, Inc., 230 F.R.D. 538, 542 (N.D. Ill. 2005) (denying motion 

to compel where discovery responses would have served no purpose). Instead 

Walgreens seeks to understand Plaintiffs’ claims so it can defend the case. 

It is worth noting that Plaintiffs themselves signal that they are in fact asserting 

consumer fraud claims based on conduct short of intentional deceit by confirming that 

such claims are viable and stating that they have not been abandoned. (Doc. 418, at 20). 

The requests for admission are a proper way to understand what Plaintiffs are alleging. 

The motion to compel is granted.10

CONCLUSION

For the reasons stated above, Walgreen’s Motion to Compel Plaintiff’s Discovery 

[Doc. 407] is granted. 

ENTER:

Dated: May 31, 2023 ___________________________

SHEILA FINNEGAN

United States Magistrate Judge

10 Plaintiffs’ argument that the requests seek discovery about dismissed third party contribution claims 

(Doc. 418, at 19) is wrong. The requests seek discovery about Plaintiffs’ pending consumer fraud act

claims.

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