Case 2:23-md-03080-BRM-LDW Document 793-2 Filed 11/05/25 Page 1 of 6 PagelD:
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`EXHIBIT 26
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`Case 2:23-md-03080-BRM-LDW Document 793-2 Filed 11/05/25 Page 2 of 6 PagelD:
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`ALSTON&BIRD
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`One Atlantic Center
`1201 West Peachtree Street
`Atlanta, GA 30309-3424
`404-881-7000 | Fax: 404-881-7777
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`Liz Broadway Brown Direct Dial: +1 404 881 4688 Email: liz.brown@alston.com
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`June 24, 2025
`BY E-MAIL
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`Bradley J. Demuth
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`FARUQI & FARUQI
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`685 Third Avenue, 26th Floor
`New York, NY 10017
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`Re: In re Insulin Pricing 1itigation, No. 2:23-md-03080 (D.N.].)
`Counsel:
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`I write on Emisar Pharma Services LLC’s behalf to respond to Plaintiffs” May 21, 2025 and June 6, 2025 letters
`and June 11, 2025 emails and to address certain topics discussed during our June 5, 2025 meet and confer.
`Emisar provides the information below—subject to and without waiving any of its defenses or objections to
`Plaintiffs’ written discovery requests—to advance the parties’ negotiations. Emisar expressly reserves all rights
`and does not waive any objections to Plaintiffs’ Requests for Production or Interrogatories.
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`As a preliminary matter, Plaintiffs’ discovery of Emisar must be proportional to the litigation’s needs, and, to
`date, Plaintiffs have taken an approach that is incongruent with that basic requirement under the Federal Rules.
`See Fed. R. Civ. P. 26(b)(1). Emisar is not obligated to respond to overbroad, disproportional discovery requests,
`and Plaintiffs’ correspondence fails to acknowledge that reality. Instead, Plaintiffs’ May 21, 2025 letter lodges a
`series of broad, conclusory allegations about purported deficiencies in Emisar’s responses, while their June 6,
`2025 letter issues a series of demands for information and mischaracterizes the parties’ meet and confer. Emisar
`addresses certain of those allegations and demands below.
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`Interrogatory No. 1
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`In their May 21, 2025 letter, Plaintiffs argue that “Emisar does not have a legitimate basis to refuse to identify
`the actual individuals requested in the Interrogatory [No. 1], and its response is deficient on its face.” May 21,
`2025 Letter from B. Demuth at 2. However, Interrogatory No. 1 includes 18 subparts about a variety of topics
`that are irrelevant to the litigation and seek information that is disproportional to the litigation’s needs. Emisar
`has identified seven individuals in its response to Plaintiffs’ Interrogatory who have relevant information about
`those topics listed by Plaintiffs that are proportional to the litigation’s needs. Those topics include rebate
`contracts with the Manufacturer Defendants and the negotiations of those contracts, Emisar’s participation
`agreement with OptumRx, and financial transactions, reporting, and operations.
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`Plaintiffs’ speculation that Emisar has not identified appropriate individuals in response to Interrogatory No. 1
`based on a set of provisions in a single document is inappropriate. Interrogatory No. 1 asks that Emisar identify,
`in part, individuals with relevant information about Emisat’s “[c|ontracts and agreements with any PBM
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`Defendants|.]” Emisar has complied with that request.! Emisar has identified Justin Lester as someone with
`knowledge about Emisar’s agreement with OptumRx. Moreover, Emisar has identified Mr. Lester, Stephen
`Crowe, and Angela Yanez as individuals with knowledge about Emisar’s rebate contracts with the Manufacturer
`Defendants and related negotiations. Emisar has also identified Matt Trok and will amend its response to
`Interrogatory No. 1 to include Linda Schroller, Senior Director, Accounting with OptumRx, as individuals with
`knowledge about financial transactions, reporting, and operations.
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`Plaintiffs assert that Emisar was obligated to identify Heather Cianfrocco and John Rex in their May 21, 2025
`and June 6, 2025 letters, vaguely speculating that they possess “knowledge of the issues central to the litigation.”
`Pls.” June 6, 2025 Letter at 2. Again, Plaintiffs’ speculation hardly establishes that Emisar’s response is deficient.
`There is no legitimate basis for Emisar to add Heather Cianfrocco or John Rex to its response to Interrogatory
`No. 1.
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`Interrogatory Nos. 2 — 7 and 11
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`Plaintiffs” May 21, 2025 letter notes that Interrogatory Nos. 2 — 6 “seek disclosure of summary annual
`information about the total amount of the relevant funds exchanged between Emisar and the other Defendants
`in this case, and a brief description of the related services provided.” May 21, 2025 Letter from B. Demuth at
`3. Plaintiffs’ June 6, 2025 letter uses a similar description—for example, that Interrogatory No. 2 “sought annual
`summary information regarding Emisar’s Diabetes Medication revenues.” Pls.” June 6, 2025 letter at 4. That
`description is inconsistent with Plaintiffs’ actual Interrogatories. Interrogatory No. 2 asks Emisar to “identify
`and describe all sources of Your revenue related to Diabetes Medications, set forth Your total revenue, gross
`income, net income, and profits related to Diabetes Medications, and describe the methods for calculating each
`such amount.” That is not merely a “summary.”
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`In any event, Emisar has provided Plaintiffs with a data proposal. If Plaintiffs wish to meet and confer about
`Interrogatory Nos. 2 —7 and 11—the latter of which you noted was “enveloped” in Interrogatory No. 5—after
`reviewing that proposal, then Emisar remains willing to do so in good faith.
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`Plaintiffs’ June 6, 2025 letter also asks Emisar to update its responses to Interrogatory Nos. 3, 5, and 6 to
`indicate “that there are no services provided that are not expressly identified in those contracts.” Pls.” June 0,
`2025 Letter at 5. Plaintiffs’ request makes little sense. Plaintiffs asked Emisar to “describe . . . all services”
`provided by Emisar to the Manufacturer Defendants or OptumRx (or, for Interrogatory No. 6, the services
`provided by OptumRx to Emisar). Emisar appropriately referenced its contracts with the various parties in
`response and explained that those contracts governed the relationships about which Plaintiffs inquired. See Fed.
`R. Civ. P. 33(d). Regardless, in the spirit of compromise and good faith, Emisar will update its responses to
`Interrogatory Nos. 3, 5, and 6.
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`Interrogatory Nos. 8 and 10
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`During our meet and confer, you stated that Emisar could ignore the part of Interrogatory No. 8 that reads
`“including patient on-boarding or data sharing, or co-pay maximizer programs for the Diabetes Medication.”
`And you noted that the Interrogatory sought information about “Affiliated Entities” who “advised,” “had any
`role,” or “intervened in any other way” in relation to Manufacturer Payments to Emisar. You also noted that
`Interrogatory Nos. 8 and 10 sought similar information. Plaintiffs’ June 6, 2025 letter mentions “any affiliated
`entity that assists with any of Emisar’s Manufacturer Payment obligations or responsibilities” and “any third-
`party it knows was involved in the Manufacturer Payments, whether it was a third-party data service Emisar
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`! Plaintiffs’ June 6, 2025 letter states that we agreed to “investigate the above individuals and ‘promptly’ advise Plaintiffs
`of any Interrogatory response revisions.” Pls.” June 6, 2025 Letter at 4. That is not true. We agreed to consider whether
`Emisat’s response needed to be revised. It does not.
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`relied on to provide related data or a third-party consultant Emisar or OptumRx retained to advise on the
`Manufacturer Payments.” Pls.” June 6, 2025 Letter at 6.
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`Following Plaintiffs’ correspondence and the parties’ meet and confer, Emisar is willing to amend its responses
`to Interrogatory Nos. 8 and 10.
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`Interrogatory No. 9 and 12
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`As discussed during the meet and confer, Emisar is willing to amend its responses to Interrogatory Nos. 9 and
`12 to confirm that, during the relevant time frame, OptumRx was the only entity for which Emisar provided
`rebate contracting services.
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`Interrogatory No. 13
`Emisar is investigating Plaintiffs’ inquiries regarding Interrogatory No. 13 and will follow up in due course.
`Search Terms
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`Plaintiffs’ June 6, 2025 letter asserts the parties are at an impasse on two issues: (1) limiting searches to the at-
`issue drugs and (2) discovery beyond the court-ordered relevant time frame. Plaintiffs’ June 11, 2025 email adds
`an additional issue—that the parties are apparently at an impasse on certain terms from Plaintiffs’ proposed
`Search No. 2.
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`On the first issue, Plaintiffs’ own explanation contradicts their attempt at justifying search terms that are
`unlimited to the at-issue drugs. Plaintiffs reference the “centrally-relevant pricing and bribery/kickback scheme
`alleged, the payments made thereunder by Defendant Manufacturers, the portions of such payments that
`Emisar retained versus those it passed on to OptumRx, the founding of and transfer of functions to Emisar
`(and/or any other Rebate Aggregator Defendant), and Emisat’s patticipation in and knowledge about scheme.”
`Pls.” June 6, 2025 Letter at 6. But Plaintiffs have alleged that Defendants engaged in a scheme that artificially
`increased the ptice of nsulin drugs. The “centrally-relevant pricing and bribery/kickback scheme alleged” by
`Plaintiffs concerns #hose drugs.
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`Plaintiffs” attempt to engage in a fishing expedition entirely untethered to their own allegations is not
`appropriate, much less relevant or proportional to the litigation’s needs. Plaintiffs” vague note that “many of
`Plaintiffs’ proposed searches that are untethered to the at-issue products are searches that the PBM Defendants
`in this case agreed to run in other substantially similar RICO cases involving the Manufacturer Payments,” Pls.”
`June 6, 2025 Letter at 6, is irrelevant to this case, and Plaintiffs have made no effort to explain how the search
`terms negotiated and agreed upon in other cases have any bearing on the search terms for Emisar in this matter.
`Moreover, Plaintiffs’ reference to OptumRx and other PBMs in other cases is all-the-more confounding
`considering that Plaintiffs have agreed to limit all but one search to at-issue drugs with respect to OptumRx i
`this case.
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`On the second issue, as Emisar has explained previously, Plaintiffs have yet to justify their request to extend
`the relevant time frame beyond the court-ordered date of January 1, 2023. In the spitit of compromise, Emisar
`is willing to run Plaintiffs’ proposed Search No. 27, limited to the at-issue drugs and the court-ordered relevant
`time frame, as constructed below:
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`(pric* w/5 (cut* OR repeal* OR revok* OR slash* OR zero OR cap*)) w/30 (Admelog OR Adylxyin OR
`Apidra OR Aspart* OR Basaglar OR Basal OR Degludec OR Detemir OR Diabet* OR Fiasp OR Flexpen OR
`Flextouch OR Glargine* OR GLP* OR Humalog OR Humulin OR Insulin* OR Kwikpen OR Lantus OR
`Levemir OR Lins OR Liraglutide OR Lispro* OR Lixisenatide OR Logs OR Mounjaro OR Novofine OR
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`Novolin OR Novolog OR NovoPen OR NovoTwist OR Ozempic OR PenFill OR "Private Label" OR Relion
`OR Rezvoglar OR Rybelsus OR Semaglutide OR Semglee OR Soliqua OR SoloSTAR OR Stegaltro OR
`Tanzeum OR Tirzepatide OR Toujeo OR Tresiba OR Trulicity OR Victoza OR Xultophy)
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`On Plaintiffs’ third issue, Plaintiffs have not sufficiently explained why the parties are at an impasse on the
`“handful of Manufacturer Payment Terms from Search No. 2. Plaintiffs’ assertion that “all of the specific
`terms and connectors in Search No. 2 that Emisar deleted, as the apparent cure for the supposed errors, are all
`terms and connectors that OptumRx has agreed to run, apparently with no problem whatsoever,” ., is untrue
`and misconstrues the search terms to which OptumRx has agreed. Emisar will respond separately to the search
`term proposal that Plaintiffs provided on June 11, 2025.
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`Requests for Production Nos. 10 and 29
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`Plaintiffs have once again raised Request for Production No. 10 in the parties’ negotiations. Emisar explained
`more than a month ago, in its May 6 letter, that “Plaintiffs have failed to sufficiently explain the relevance of
`these documents to their claims in the litigation. Plaintiffs are not entitled to discovery that is untethered to
`their claims.” Emisar’s May 6, 2025 Letter at 2. Plaintiffs never responded to that letter, and Emisar’s position
`remains unchanged.
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`Regarding Request for Production No. 29, after a reasonable search, Emisar has notidentified any “call scripts,”
`“decision-trees,” or policies related to the insulin drugs or GLP-1s at issue in this case. Emisar will agree to
`search for and produce relevant contract templates from the court-ordered time frame.
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`Plaintiffs’ Confidentiality Challenges
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`Plaintiffs purport to challenge Emisar’s designation of its March 28, 2025 letter and its responses and objections
`to Plaintiffs’ Interrogatories. Our meet and confer and Plaintiffs’ June 6, 2025 letter confirm that Plaintiffs
`misunderstand the Court’s Stipulated Confidentiality Order. That Order provides that “[t|he Challenging Party
`shall initiate the dispute resolution process by providing written notice to the Designating Party of each
`designation it is challenging by Bates number and describing the basis for each challenge.” Stipulated Confidentiality
`Order at 11, Dkt. No. 117. Plaintiffs have not described the bases for their challenges.
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`Plaintiffs’ challenge to the March 28, 2025 letter’s designation reads “[t]here appears to be no basis for such
`designation[.]” Emisar explained the basis for its designation of the March 28, 2025 letter on April 25, 2025,
`but Plaintiffs did not respond to that explanation. During our June 5, 2025 meet and confer, we asked for the
`basis of Plaintiffs’ challenge. Your explanation was that the designation “seems to be without foundation.” We
`asked additional questions, and your response was that “[i]t would be helpful if you did not designate everything
`confidential.” Of course, as you are aware, Emisar has not designated “everything” confidential or highly
`confidential.
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`Moreover, Plaintiffs’ assertion that “the Court’s Confidential [sic] Order and applicable law,” Pls.” June 6, 2025
`Letter at 7, did not permit Emisar to designate its March 28, 2025 letter—which quotes a document that was
`propetly designated as “Highly Confidential — Attorneys’ Eyes Only”’—lacks merit. Plaintiffs allege that the
`cited language is “boilerplate” and “benign,” 7., but the cited language is a substantive provision of a
`commercially sensitive and confidential contract between OptumRx and Emisar. Emisar properly designated
`the letter as “Highly Confidential — Attorneys’ Eyes Only,” and Plaintiffs’ challenge is meritless.
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`Similarly, Plaintiffs have not propetly challenged Emisat’s responses and objections to Plaintiffs’
`Interrogatories. Plaintiffs have simply concluded the designation is “without basis.” In addition to the challenge
`being improper, it is now premature, as well, given that Emisar will be amending its responses.
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`X ok ok
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`Emisar expressly reserves all rights, including its right to revise, supplement, or amend the information provided
`in this correspondence, and does not waive any of its objections to Plaintiffs’ requests.
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`Sincerely,
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`Liz Broadway Brown
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