i 

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. 

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ 

MOTION FOR ATTORNEYS’ FEES AND EXPENSES 

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ii 

TABLE OF CONTENTS 

FACTUAL BACKGROUND ....................................................................................................................... 2

ARGUMENT ................................................................................................................................................ 3

I. Walgreens’ Motion for Attorneys’ Fees Should be Denied Because Plaintiffs’ Objections Were 

Substantially Justified. .............................................................................................................................. 3 

A. Interrogatories and Requests for Production Seeking Information Pertaining to Exhibits 

Prepared at the Direction of Counsel (ROG 10, RFPs 38 & 39). ......................................................... 4 

B. Interrogatories Seeking Information Regarding Common Interest or Joint Defense Agreements, 

Litigation Financing or Contingent Attorney Fee Agreements, and Insurance Agreements or Policies 

(ROGs 13, 14 & 16) .............................................................................................................................. 6 

C. Interrogatory Seeking Financial Information Regarding Prime Therapeutics LLC. ..................... 9 

D. Requests for Admission Seeking Legal Concessions. ................................................................ 10 

II. Walgreens’ Request for Attorney’s Fees Incurred After the Motion was Granted Are Not 

Permitted Under the Law. ....................................................................................................................... 11 

III. Walgreens’ Motion for Attorneys’ Fees Should be Denied Because Walgreens Failed to Provide 

Proof of Actual Fees Incurred. ................................................................................................................ 13 

CONCLUSION ........................................................................................................................................... 17

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TABLE OF AUTHORITIES 

Cases Page(s) 

Brown v. Patelco Credit Union, 

No. 09-CV-5393, 2011 WL 4375865 (N.D. Ill. Sept. 20, 2011) .......................................................... 14 

Debartolo v. Health and Welfare Dept. of Const. and Gen. Laborers’ Dist. Council of 

Chicago and Vicinity, 

No. 09 CV 0039, 2012 WL 205906 (N.D. Ill. Jan. 24, 2012) .............................................................. 15 

Doe v. Lexington-Fayette Urb. Cnty. Gov’t, 

407 F.3d 755 (6th Cir. 2005) .................................................................................................................. 4 

Frazier v. Se. Pa. Transp. Auth., 

161 F.R.D. 309 (E.D. Pa. 1995) ............................................................................................................. 9 

Harper v. City of Chicago Heights, 

223 F.3d 593 (7th Cir. 2000) ................................................................................................................ 14 

Hensley v. Eckerhart, 

461 U.S. 424 (1983) ............................................................................................................................. 14 

Hubert v. Oswego Junction Enters. LLC, 

No. 21 CV 3360, 2023 WL 2933052 (N.D. Ill. Apr. 13, 2023) ............................................................. 5 

Lorillard Tobacco Co. v. Elston Self Serv. Wholesale Groceries, Inc., 

259 F.R.D. 323 (N.D. Ill. 2009) .................................................................................................... passim

Nelson v. Ricoh, USA, 

No. 17-11390, 2018 WL 6728392 (E.D. Mich. March 1, 2018) .......................................................... 13 

Pable v. Chicago Transit Authority, 

No. 19 CV 7868, 2023 WL 5955832 (N.D. Ill. Aug. 16, 2023) ........................................................... 11 

Rickels v. City of S. Bend, Ind., 

33 F.3d 785 (7th Cir. 1994) .................................................................................................................... 3 

Small v. Richard Wolf Med. Instruments, Corp., 

264 F.3d 702 (7th Cir. 2001) ................................................................................................................ 15 

Towne Place Condo Ass’n v. Phila. Indem. Ins. Co., 

284 F. Supp. 3d 889 (N.D. Ill. 2018) ...................................................................................................... 5 

United States v. Nobles, 

422 U.S. 225 (1975) ............................................................................................................................... 5 

Watkins v. Trans Union, LLC, 

No. 2:14-cv-00135-WTL-MJD, 2019 WL 336674 (S.D. Ind. Jan. 28, 2019) ...................................... 14 

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Other Authorities 

Fed. R. Civ. P. 37 ................................................................................................................ 1, 2, 3, 11, 12, 13 

Fed. R. Civ. P. 26 .......................................................................................................................................... 4 

Fed. R. Civ. P. 36 ........................................................................................................................................ 11 

Spread Pricing 101, National Community Pharmacists Association, available at 

https://ncpa.org/spread-pricing-101 (accessed Feb. 7, 2023) ................................................................. 9

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Plaintiffs1 oppose Defendants Walgreen Co. and Walgreens Boots Alliance, Inc.’s 

(collectively, “Walgreens”) Motion to for Attorneys’ Fees (ECF 472) (“Motion”). At issue here 

was a good-faith effort to resolve genuine discovery disputes. Plaintiffs put forth cogent 

arguments, well-supported by case law and a declaration from counsel. While the Court ultimately 

granted the motion, the bases upon which the Court relied did not reflect bad faith or a disregard 

for clear, bright-line discovery rules. Rather, the Court reached conclusions favoring discovery 

based on the “magnitude” of the case, the “enormous damages being sought,” and it compelled 

evidence the Court agreed was “irrelevant” in large part, but nevertheless found discoverable on a 

nuanced alternative basis. The Court’s rulings reflected a balancing of factors that in the Court’s 

reasonable judgment weighed in favor of discovery. But this balancing reflects that these issues 

raised close questions that reflect “a ‘genuine dispute,’ or ‘that reasonable people could differ as 

to the appropriateness of the contested action.’” Lorillard Tobacco Co. v. Elston Self Serv. 

Wholesale Groceries, Inc., 259 F.R.D. 323, 327 (N.D. Ill. 2009) (quoting Pierce v. Underwood, 

487 U.S. 552, 565 (1988)). Therefore, Plaintiffs’ objections to Walgreens’ discovery requests at 

issue in its Motion to Compel, filed January 23, 2023 (ECF 407) (“MTC”), were substantially 

justified, fitting squarely within the well-recognized exception to an award of attorney’s fees under 

Rule 37(a)(5)(A)(ii). 

 

1 Plaintiffs are 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 Florida, Inc. (d/b/a Florida 

Blue); Blue Cross and Blue Shield of North Carolina; Blue Cross Blue Shield of North Dakota; Blue Cross and Blue 

Shield of Alabama; Blue Cross and Blue Shield of Kansas, Inc.; Blue Cross and Blue Shield of Kansas City, 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; 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).

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As a result, Walgreens’ Motion is entirely unsupported. Moreover, parties should not be 

discouraged from protecting the type of information sought by Walgreens, which included 

privileged or attorney work product, as well as confidential financial information. Even if the 

Court grants Walgreens’ Motion, the Court should reduce or strike Walgreens’ requested fees 

incurred after the Court ruled on the MTC, as these are not permitted by law; are not adequately 

supported; and are excessive, redundant, or unnecessary. In fact, reminiscent of the reimbursement 

claims at issue in this case, Walgreens’ fee request is grossly inflated. As just one example, under 

Rule 37, a party is not entitled to fees or costs incurred after the motion to compel was granted. 

Yet, over a third of the fees sought by Walgreens were incurred after the Court granted the MTC. 

For these reasons, as more fully explained below, Plaintiffs respectfully request that this Court 

deny Walgreens’ Motion for Attorneys’ Fees. 

FACTUAL BACKGROUND 

 Walgreens’ underlying MTC addressed the following written discovery requests: 

Interrogatories (ROGs) 10, 13, 14, 16, and 26; Requests for Production (RFPs) 38 and 39; and 

Requests for Admission (RFAs) 148-160. Plaintiffs first answered ROGs 10, 13, 14, and 16 and 

RFPs 38 and 39 on July 13, 2021, raising objections on the grounds of privilege and work product 

protection, that the information sought was irrelevant or already in Walgreens’ possession, or that 

the requests were unduly burdensome and overly broad. After sitting on these discovery responses 

for over a year, Walgreens challenged these objections and requested that Plaintiffs provide 

additional information to justify their objections. Despite Walgreens’ unreasonable delay in 

raising its concerns, Plaintiffs participated in the meet and confer process in good faith, and 

articulated their position that the requested discovery was impermissible under the Federal Rules. 

 It is undisputed that Plaintiffs and Walgreens exchanged numerous letters and engaged in 

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multiple meet-and-confers in an attempt to resolve disputes concerning the discovery Walgreens 

sought. See, e.g., MTC (ECF 407), at 3; Decl. of C. Zagnoli (ECF 377). Throughout this process, 

the parties were able to reach a resolution on many of Plaintiffs’ objections and Plaintiffs agreed 

to produce a substantial amount of information and materials in response to several of Walgreens’ 

discovery requests. The parties had their most significant meet-and-confer on these issues on 

October 28, 2022. See Ltr. From T. Farrell to K. Hibbert (Nov. 17, 2022) (ECF 377-18), 6-7. 

Nevertheless, following these discussions, Walgreens moved to compel production on the 

discovery requests at issue, without pursuing further attempts to resolve the issues with Plaintiffs. 

 Briefing on the MTC was completed on February 28, 2023. This Court issued an Order 

granting the motion on May 31, 2023. ECF 453 (“Order”). 

ARGUMENT 

I. Walgreens’ Motion for Attorneys’ Fees Should be Denied Because Plaintiffs’ 

Objections Were Substantially Justified. 

Federal Rule of Civil Procedure 37 provides that “the court must, after giving an 

opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the 

party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred 

in making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). But the Rule also 

provides that “the court must not order this payment if . . . the opposing party’s nondisclosure, 

response, or objection was substantially justified . . . .” Id. at 37(a)(5)(A)(ii). 

“The Supreme Court has stated that, in the context of Rule 37, ‘substantially justified’ does 

not mean ‘justified to a high degree,’ but rather ... that there is a ‘genuine dispute,’ or ‘that 

reasonable people could differ as to the appropriateness of the contested action.’” Lorillard, 259 

F.R.D. at 327 (quoting Pierce, 487 U.S. at 565); see also Rickels v. City of S. Bend, Ind., 33 F.3d 

785, 786–87 (7th Cir. 1994) (explaining objecting party does not pay if their position was 

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“substantially justified”). Plaintiffs’ objections to the discovery requests at issue in Walgreens’ 

MTC were substantially justified. While only persuasive authority, the Sixth Circuit has developed 

a test to determine whether the party was “substantially justified.” Lorillard, 259 F.R.D. at 327. 

The first factor is whether the party’s failure to cooperate in discovery is due to 

willfulness, bad faith, or fault; the second factor is whether the adversary was 

prejudiced by the party’s failure to cooperate in discovery; the third factor is 

whether the party was warned that failure to cooperate could lead to the sanction; 

and the fourth factor in regard to a dismissal is when less drastic sanctions were 

first imposed or considered. 

Doe v. Lexington-Fayette Urb. Cnty. Gov’t, 407 F.3d 755, 766 (6th Cir. 2005). The first factor 

weighs in favor of Plaintiffs.2

 Plaintiffs’ objections were made in good faith and based on 

reasonable interpretations of the applicable law. 

A. Interrogatories and Requests for Production Seeking Information Pertaining 

to Exhibits Prepared at the Direction of Counsel (ROG 10, RFPs 38 & 39). 

Plaintiffs objected to ROG 10 and RFPs 38 and 39, all seeking information and documents 

pertaining to Exhibit 2 of Plaintiffs’ Amended Complaint (identifying exemplar overcharges made 

by Walgreens), on the grounds that the exhibit was created at the direction of counsel in 

anticipation of litigation and, thus, protected as work product. See Plaintiffs’ Opp. to Walgreens’ 

Mot. to Compel (ECF 418) (“Opp.”), 2-4. Plaintiffs’ based their objection on the well-founded 

attorney work product doctrine that “the mental impressions, conclusions, opinions, or legal 

theories of [Plaintiffs’] attorney or other representative concerning the litigation” was off limits 

pursuant to Federal Rule of Civil Procedure 26(b)(3)(B) and 26(b)(4)(D), as well as this Circuit’s 

 

2

 This Court has modified the test to discount the weight, if any, given to the second and third factors. Lorillard, 259 

F.R.D. at 327. The fourth factor is not at issue here. To the extent this Court considers at all the second and third 

factors of the Sixth Circuit’s “substantially justified” test, these also weigh in favor of Plaintiffs. Walgreens has 

suffered no prejudice as a result of Plaintiffs’ objections to the requested discovery. Fact discovery in this case is 

essentially on hold pending the ruling on Walgreens’ motion to compel related to document collection and review, so 

Plaintiffs actions have had no impact on the case schedule. Further, Plaintiffs have provided the discovery sought by 

Walgreens through its Motion, following this Court’s Order on May 31, 2023. Finally, with regard to the third factor, 

no warning was provided to Plaintiffs regarding the risk that attorney’s fees may be awarded. 

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case law. See, e.g., United States v. Nobles, 422 U.S. 225, 238 n.11 (1975); Towne Place Condo 

Ass’n v. Phila. Indem. Ins. Co., 284 F. Supp. 3d 889, 899 (N.D. Ill. 2018). The information sought 

was provided by consulting experts, which is generally protected by the attorney work doctrine. 

Pursuant to that doctrine, Plaintiffs contended that any information regarding the compilation of 

Exhibit 2 or documents used to prepared Exhibit 2 (not Exhibit 2 itself) was protected from 

disclosure. Although Plaintiffs supported their position with case law, as well as an affidavit from 

Plaintiffs’ counsel, the Court disagreed on the merits of that argument. Order (ECF 453), at 16. 

In Rogers v. Quality Carriers, Inc., defendants similarly objected to disclosure of redacted 

information in an incident report compiled immediately after an automobile accident based on 

attorney work product. No. 4:15-cv-22, 2017 WL 2641055, at *1 (N.D. Ind. June 19, 2017). The 

redacted information, defendants argued, “came into existence because of a claim likely to lead to 

litigation.” Id. The court “found that the report was not attorney work product because the form 

itself was not completed by counsel and did not include any legal theories or legal opinions” and 

ordered the unredacted document to be produced. Id. Nevertheless, the court denied plaintiff’s 

request for fees and costs “because Defendants put forth a cogent argument, supported by caselaw, 

that the [incident report] was protected by the attorney-client privilege and work product document 

. . . .”3

 Id. at *3; see also Hubert v. Oswego Junction Enters. LLC, No. 21 CV 3360, 2023 WL 

2933052, at *1 (N.D. Ill. Apr. 13, 2023) (finding an award of fees and costs unjust where a party 

relied on former counsel’s advice about the application of the attorney client privilege or work 

product doctrine and explaining that “[l]awyers generally are reluctant to turn over documents they 

believe may be protected by the attorney client privilege or work product doctrine without a court 

 

3

 The court also weighed favorably the fact that the redacted document had been produced and included on defendants’ 

privilege log. Id. Plaintiffs’ privilege log in this case, however, was not due to be disclosed to Walgreens at the time 

of Walgreens’ MTC. 

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order”). The same is true for Plaintiffs here, who asserted a good faith argument for protection 

from disclosure of any information or documents pertaining to work performed by a consulting 

expert at the direction of counsel in anticipation of litigation. 

B. Interrogatories Seeking Information Regarding Common Interest or Joint 

Defense Agreements, Litigation Financing or Contingent Attorney Fee 

Agreements, and Insurance Agreements or Policies (ROGs 13, 14 & 16). 

Plaintiffs objected to ROGs 13, 14, and 16 on the basis that the interrogatories potentially 

sought privileged information that was otherwise irrelevant to the claims and defenses asserted in 

this case. See Pls’ Objs. and Resps. to First Set of Interrogs. (ECF 408-2). ROG 13 sought 

information regarding: 

any common interest agreement, joint defense agreement, or other agreement or 

arrangement under which [Plaintiffs] 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 . . . . 

Id. ROG 14 asked Plaintiffs to 

[i]dentify 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 . 

. . . 

Id. And ROG 16 requested information regarding insurance contracts or policies, indemnification 

agreements or obligations “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.” 

Id. Walgreens argued that the information sought via ROGs 13, 14, and 16 was relevant to (i) 

Walgreens’ affirmative defense that Plaintiffs’ claims are time-barred (ROGs 13, 14, 16); (ii) “the 

calculation of Plaintiffs’ supposed damages” for both overpayments and attorneys’ fees (ROGs 

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14, 16); and (iii) Walgreens’ ability “to explore witnesses’ credibility and bias” (ROG 13). See

MTC (ECF 407), at 11. 

With regard to ROG 13, Plaintiffs had already agreed to provide information pertaining to 

the identities of the parties and the timing of any common interest or joint defense agreement, see

Opp. (ECF 418), at 6, and the Court held that both were relevant. See Order (ECF 453), at 8-10. 

As to ROG 14, Plaintiffs had provided separate sworn testimony in response to another 

interrogatory regarding the (i) date of [Plaintiffs’] first communications with any law firm about 

the substance of these claims and (ii) the date when Plaintiffs first obtained information suggesting 

that Walgreens’ submission of U&C prices excluded Walgreens’ discounted prescription drug 

prices, which arguably obviated the need for discovery of the same information via any existing 

common interest or joint defense agreements. Further, Plaintiffs argued that Walgreens was not 

entitled to information in these agreements for the purposes of calculating damages because no 

attorneys’ fees had been awarded in the case. 

The Court disagreed with these arguments, and in the Court’s judgment, considering that 

“[ROG 14] seeks information beyond what was sought in these other interrogatories” and because 

“[i]n a case of this magnitude, Walgreens is entitled to understand the scope of its fee exposure, at 

least as memorialized in agreements.” Id. at 11-12. But this Court’s reliance on the magnitude of 

the case as the determining factor demonstrates that “reasonable people could differ as to the 

appropriateness of the contested action,” and therefore, the argument was substantially justified. 

See, e.g., Lorillard, 259 F.R.D. at 327. With regard to ROG 16, Plaintiffs argued that they had 

already answered in the negative the question of whether they had insurance agreements covering 

the costs of this Action in their initial disclosures; however, the Court found that “sworn responses 

to that effect is appropriate.” Order (ECF 453), at 13. Thus, the Court ruled that even though 

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accurate factual information had been already been provided, the better course of action would be 

to provide the same statement under oath. But the Court’s ruling was based on the form in which 

the information was provided, not a withholding of information or a failure to provide it, a 

distinction upon which reasonable people might justifiably disagree. Awarding fees based on such 

a distinction would be promoting form over substance. 

Again, even though the Court disagreed with the merits of Plaintiffs’ arguments, the 

arguments were made in good faith and cited supporting case law. This case is distinguishable 

from cases in which this Court has granted motions for attorneys’ fees. For example, in In re: 

Local TV Adver. Antitrust Litig., despite reaching agreements regarding the production of certain 

materials and responses to several requests through multiple rounds of meet and confer, the 

defendants ultimately failed to honor their agreements. No. 18 C 6785, 2023 WL 5659926, at *2 

(N.D. Ill. Aug. 31, 2023). Defendants additionally refused to confirm whether certain materials 

sought even existed. Id. at *4. Because this Court found that defendant Nexstar Group failed to 

provide a “compelling reason that the information is not discoverable, either by asserting a 

privilege or by explaining that searching for such whitepapers would impose an undue burden,” it 

granted the motion for fees. Id. at *7. 

Similarly, in Life After Hate, Inc. v. Free Radicals Project, Inc., this Court granted 

plaintiff’s motion for discovery sanctions where defendants withheld information with no basis at 

all, defendants gave false or misleading testimony and responses, and defendants repeatedly 

contradicted themselves throughout the discovery process. No. 18-C-6967, 2020 WL 5848429, at 

*5 (N.D. Ill. Oct. 1, 2020). The Court found that “Defendants ha[d] engaged in a pattern of 

deceptive behavior intended to harm Plaintiff.” Id. Conversely here, Plaintiffs supported their 

objections with relevant authority, provided truthful responses and were transparent about their 

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positions, and have willingly and diligently participated in discovery for 3.5 years. Accordingly, 

Walgreens has failed to demonstrate it is entitled to fees and expenses related to its motion to 

compel. 

C. Interrogatory Seeking Financial Information Regarding Prime Therapeutics 

LLC. 

Plaintiffs objected to ROG 26 on the ground that it sought irrelevant information that was 

not proportional to the needs of the case. ROG 26 sought “projected and actual annual revenues 

and profits [Plaintiffs] have received from owning an equity interest, ownership interest, or debt 

interest” in third-party Defendant Prime Therapeutics LLC (“Prime”). Plaintiffs were responsive 

to Walgreens’ inquiries regarding this interrogatory, provided their position, and supported that 

position with case law and other case documents. See Frazier v. Se. Pa. Transp. Auth., 161 F.R.D. 

309, 314 (E.D. Pa. 1995) (denying an award of costs and expenses where the party’s position was 

“ultimately unconvincing, [but] not completely without basis in the law”). Walgreens argued that 

the information sought was relevant to damages and to bias. 

In response, Plaintiffs asserted that Walgreens’ position – that Prime’s contracts with 

Plaintiffs included spread pricing4

 – was disavowed by the record in the case. Specifically, this 

was addressed in Prime’s Answer to Walgreens’ Third-Party Complaint, Prime’s answers to 

Walgreens’ interrogatories on the issue, and the production of the actual contracts between 

Plaintiffs and Prime which show that spread pricing was not used. See Opp. (ECF 418), at 8-9. 

The Court found that “[g]iven 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, 

 

4

 Spread pricing is a practice by which some PBMs charge a price to health plans that is different than the PBM 

collects from its network pharmacy for a prescription. The PBM in this system could keep the difference, or spread, 

of the transaction as its own profit. See Spread Pricing 101, National Community Pharmacists Association, available 

at https://ncpa.org/spread-pricing-101 (accessed Feb. 7, 2023). 

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and especially where this would require resolving a factual dispute in Plaintiffs’ favor based on an 

ambiguous record.” Order (ECF 453), at 6. Again, this ruling appears to turn, not on clear, brightline case law, but rather a judgment based on the magnitude of the damages at issue – one upon 

which reasonable people might easily differ. And certainly not one that reflects bad faith or a 

failure to cooperate in discovery. 

With regard to bias, the Court agreed with Plaintiffs’ argument that “the historical benefits 

[Plaintiffs’] received from Prime are irrelevant to bias today since they predate their testimony,” 

but noted that “such benefits could shed light on contemporaneous statements and documents.” 

Id. at 7. The Court concluded that, “[i]n any event, this argument goes to the weight of the evidence 

in establishing bias,” and allowed the discovery on that narrow basis. Id. Here, although the Court 

agreed with Plaintiffs’ main argument that the discovery sought was, in large part irrelevant, it 

found a narrow basis on which to lean in favor of allowing discovery. But the Court’s agreement 

that the request was in the main irrelevant demonstrates that Plaintiffs’ objections were 

substantially justified. 

D. Requests for Admission Seeking Legal Concessions. 

Plaintiffs objected to several RFAs propounded by Walgreens that sought admissions 

regarding which legal theories Plaintiffs intend to pursue in this litigation. See Opp. (ECF 418), 

at 12-13. Specifically, as this Court noted in its Order: 

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

these consumer fraud and protection claims. 

Order (ECF 453), at 17-18 (emphasis in original). Plaintiffs objected to these contention requests 

on the grounds that they sought legal conclusions, that they sought privileged information 

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regarding trial counsel’s strategy, and were premature. Opp. (ECF 418), at 12. The Court held 

that the Requests “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.’” Order (ECF 

453), at 19 (emphasis in original). The Court also disagreed that responding to the Requests would 

“reveal anything about counsel’s opinions, impressions, or directions about those issues.” Id. at 

20. Finally, the Court determined that the Requests were not premature because “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.” Id. 

 Whether the requests were seeking legal conclusions or “the application of law to fact,” is 

a subtle and nuanced distinction upon which reasonable people might differ. Plaintiffs’ objections 

were supported by legal authority and made in good faith, even though they were not ultimately 

successful. None of the indicia of bad faith or deceptive behavior are evident here to suggest that 

Plaintiffs’ objections were frivolous in nature or not based on cogent legal positions. Accordingly, 

the Court should deny Walgreens’ Motion. 

II. Walgreens’ Request for Attorney’s Fees Incurred After the Motion was Granted 

Are Not Permitted Under the Law. 

Plaintiffs’ objections to the discovery requests at issue in Walgreens’ MTC were 

substantially justified. But even if the Court finds that the exceptions identified in Rule 37(a)(5)(A) 

do not apply here, Walgreens’ requested fee amount must be reduced to account for fees not 

permitted under the law. Rule 37 requires “the party or deponent whose conduct necessitated the 

motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable 

expenses incurred in making the motion, including attorney’s fees.” Lorillard, 259 F.R.D. at 329 

(quoting Fed. R. Civ. P. 37(a)(5)(A)) (emphasis in original). The movant is, however, “not entitled 

to fees or costs incurred after the motion to compel was granted.” Pable v. Chicago Transit 

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Authority, No. 19 CV 7868, 2023 WL 5955832, at *4 (N.D. Ill. Aug. 16, 2023) (citing Hubert, 

2023 WL 2933052, at *2 (holding that “time spent after the Court had ruled on Plaintiff’s Motion 

does not justify an award of attorneys’ fees or costs under Rule 37(a)(5)(A)”)). Walgreens’ Motion 

was granted on May 31, 2023. See Order (ECF 453). Fees sought by Walgreens for work 

performed after the Court’s ruling was issued total $34,867.60. The request for any fees after the 

Motion was granted must be denied. 

 Walgreens seeks an award of attorneys’ fees that includes almost 50 hours of work 

performed after the Court’s ruling was issued. See Decl. of T. Farrell, Ex. A (ECF 471-1). This 

work, according to Exhibit A, fall into several different categories summarized below. 

1. Review of the Court’s May 31, 2023, Order by five different associates, two partners, 

and one counsel (totaling $3,466.80 in fees); 

2. Internal correspondence regarding Walgreens’ Motion for Attorneys’ Fees (totaling 

$3,817.60 in fees); 

3. Research and analysis related to Walgreens’ Motion for Attorneys’ Fees (totaling 

$8,880.80 in fees); 

4. Revision and editing of Walgreens’ Motion for Attorneys’ Fees and Declaration 

(totaling $9,330.40 in fees); 

5. Review of billing entries (totaling $5,016.80 in fees); and 

6. Tasks unrelated to Walgreens’ MTC or Walgreens’ Motion for Attorneys’ Fees (totaling 

$4,355.20 in fees). These include: 

a. “Review prior successful motions for JJB fees.” (.7 hours, $772.80) 

b. “Correspond with opposing counsel regarding deadline to supplement discovery 

responses following order granting motion to compel.” (.2 hours, $156.80) 

c. “Emails regarding supplemental responses followoing [sic] compel order.” (.5 

hours, $552.00) 

d. “Attention to deficiency letters and status, timing for upcoming motion for fees 

on fees for motion to compel and potential new motion.” (1 hour, $1,104.00) 

Case: 1:20-cv-01853 Document #: 475 Filed: 09/25/23 Page 16 of 21 PageID #:9812
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e. “Correspond with Ropes team regarding strategy related to Plaintiffs discovery 

supplements after motion to compel.” (.4 hours, $313.60) 

f. “Correspond with team regarding Crowell’s requested extension on Initial 

Plaintiffs’ deadlines to respond to requests following May order granting 

Walgreens’ motion to compel.” (.3 hours, $235.20) 

g. “Analyze reports on Initial Plaintiffs’ compelled discovery responses.” (.8 

hours, $672.00) 

h. “Coordinate analysis of Plaintiffs’ amended responses and objections to 

discovery requests covered by successful MTC.” (.5 hours, $392.00) 

i. “Coordinate analysis of Plaintiffs’ served supplemental responses and objections 

to discovery requests following Judge Finnegan’s order granting motion to 

compel.” (.2 hours, $156.80) 

All of the categories outlined above and all of time entries followed the Court’s ruling on 

Walgreens’ Motion and are, thus, “descendent costs” that are “wholly separate from effort 

expended in bringing the motion itself” and, therefore, “do[] not fall within Rule 37.” Lorillard, 

259 F.R.D. at 329 (denying request for fees associated with “preparing and submitting the Agreed 

Order”). Accordingly, the entirety of Walgreens’ request for attorneys’ fees following the Court’s 

ruling on May 31, 2023, (i.e., the fees not “incurred in making the motion”) should be denied. 

III. Walgreens’ Motion for Attorneys’ Fees Should be Denied Because Walgreens 

Failed to Provide Proof of Actual Fees Incurred. 

It appears that while Ropes & Gray has negotiated an “alternative fee arrangement” which 

includes, at least in part, discounted rates with Walgreens, its motion seeks “total value of the work 

performed on the Motions.” See Decl. of T. Farrell (ECF 471), at ¶¶ 4-5. But Walgreens cannot 

agree to discounted rates and then ask this Court to award inflated “total value” rates that were 

never incurred or paid. “The fee applicant bears the burden of establishing entitlement to an award 

and documenting the appropriate hours expended and hourly rates.” Nelson v. Ricoh, USA, No. 

17-11390, 2018 WL 6728392, at *2 (E.D. Mich. March 1, 2018) (quoting Hensley v. Eckerhart, 

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14 

461 U.S. 424, 437 (1983)). “The applicant should exercise ‘billing judgment’ with respect to hours 

worked . . . and should maintain billing time records in a manner that will enable a reviewing court 

to identify distinct claims.” Hensley, 461 U.S. at 437. 

Walgreens has failed to submit any proof of actual billing rates in similar cases or any 

similar cases in the district to support the requested rate. See Watkins v. Trans Union, LLC, Case 

No. 2:14-cv-00135-WTL-MJD, 2019 WL 336674, at *4 (S.D. Ind. Jan. 28, 2019) (holding that 

movant failed to provide evidence of “usual billing rates in similar cases, or any similar cases in 

this district to support the requested rate” of $400 per hour and finding that $250 per hour was a 

reasonable fee); see also Brown v. Patelco Credit Union, No. 09-CV-5393, 2011 WL 4375865, at 

*2 (N.D. Ill. Sept. 20, 2011) (“An attorney’s market rate is the rate that lawyers of similar ability 

and experience in the community normally charge their paying clients for the kind of work in 

question.”). And Mr. Farrell’s affidavit alone is insufficient. See Harper v. City of Chicago 

Heights, 223 F.3d 593, 604 (7th Cir. 2000) (“While an attorney’s self-serving affidavit alone 

cannot establish the market rate for that attorney’s services, such affidavits in conjunction with 

other evidence of the rates charged by comparable lawyers is sufficient to satisfy the plaintiffs’ 

burden.”). Even more troubling, Walgreens has not submitted any proof that the fees it seeks were 

actually incurred – meaning, they were billed and paid by Walgreens. In Mr. Farrell’s Declaration, 

he states only that the fees requested represent the “total value of the work performed on the 

Motions through September 8, 2023 . . . .” ECF 471 at ¶ 4. Moreover, Walgreens and Ropes & 

Gray “have negotiated an alternative fee arrangement” which includes, at least in part, discounted 

rates. Id. at ¶ 5. Notably, Mr. Farrell does not describe the alternative fee arrangement with any 

specificity nor does he affirmatively state that the fees were actually billed to Walgreens and paid. 

Because of Walgreens’ failure to adequately support its requested fees, its Motion should be 

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denied.

IV. Walgreens’ Requested Attorneys’ Fees Are Excessive, Redundant, or Otherwise 

Unnecessary. 

“In determining the reasonable number of hours, the court should exclude hours that are 

‘excessive, redundant or otherwise unnecessary.’” Small v. Richard Wolf Med. Instruments, Corp., 

264 F.3d 702, 708 (7th Cir. 2001). A substantial portion of Walgreens’ requested attorneys’ fees 

are objectively excessive. First, Walgreens claims fees related to the work of eight (8) associates, 

two (2) partners, one (1) counsel, and one (1) paralegal – all for one motion to compel – without 

justification for the need for so many attorneys and personnel. See Decl. of T. Farrell, Ex. A (ECF 

471-1). Second, Walgreens also claims fees associated with preparation of its Reply in Support of 

its MTC that total over triple times the number of hours spent on Walgreens’ MTC itself.5

 See id.

(requesting fees for 21 hours billed for Motion to Compel and 66.3 hours for Reply). Given the 

relative simplicity of Walgreens’ Reply compared to its MTC, the tripling of the number of hours 

claimed is objectively unreasonable and amounts to excessiveness. The Court “may adjust the fee 

award upward or downward, depending on a variety of factors, including the time and labor 

required, the novelty and difficulty of the issues, the legal skill required, reputation of the attorneys, 

and awards in similar cases.” Debartolo v. Health and Welfare Dept. of Const. and Gen. Laborers’ 

Dist. Council of Chicago and Vicinity, No. 09 CV 0039, 2012 WL 205906, at *1 (N.D. Ill. Jan. 24, 

2012) (internal citations omitted). The Court should adjust the fee here, if award, downward. 

CONCLUSION 

 For all the foregoing reasons, Plaintiffs respectfully request that this Court deny 

Defendants’ Motion for Attorney’s Fees and Expenses in its entirety. 

 

5

 While Plaintiffs contend that this amount of time spent drafting Walgreens’ Reply is excessive, it is noteworthy that 

Walgreens spent this much time responding to Plaintiffs’ arguments that Walgreens contends were not “substantially 

justified.” 

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Dated: September 25, 2023 Respectfully submitted, 

David L. Applegate (IL Bar# 3122573) 

Brigid E. Kennedy (IL Bar # 6201446 

WILLIAMS BARBER & MOREL LTD. 

Suite 6800 Willis Tower 

233 S. Wacker Drive 

Chicago, Illinois 60606 

Telephone: (312) 443-3200 

Facsimile: (312) 630-8500 

dla@williamsbarbermorel.com 

bek@williamsbarbermorel.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)* 

Jed Wulfekotte (D.C. Bar No. 977671)* 

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 

JWulfekotte@crowell.com 

JKingsolver@crowell.com 

* Admitted pro hac vice 

Attorneys for Initial Plaintiffs & Third-Party 

Defendant OmedaRx, Inc. 

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CERTIFICATE OF SERVICE 

I, Kelly H. Hibbert, an attorney authorized to practice before this Court, hereby certify 

that the foregoing Opposition to Defendants’ Motion for Attorney’s Fees was electronically 

filed on September 25, 2023, and will be served electronically via the Court’s ECF Notice 

system upon the registered parties and counsel of record. 

Dated: September 25, 2023 /s/ Kelly H. Hibbert

Case: 1:20-cv-01853 Document #: 475 Filed: 09/25/23 Page 21 of 21 PageID #:9817