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RxUSA Wholesale, Inc. v. McKesson Corp.

March 28, 2008


The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge



Before the Court is Defendant McKesson Corporation's motion to compel Plaintiff RxUSA Wholesale, Inc. to (1) produce documents in response to Document Request Nos. 12, 17, and 44 of Defendant's First Request for Production of Documents; and (2) provide "adequate[ ]" responses to Request Nos. 5 and 6 of Defendant's Second Request for Admissions [DE 41]. In considering this motion, I have reviewed the pleadings and the following written submissions:

(1) Defendant's moving papers [DE 41]; (2) Defendant's July 17, 2007 letter to the Court [DE 44]; (3) Plaintiff's opposition to Defendant's motion [DE 45]; (4) Plaintiff's September 12, 2007 letter to the Court [DE 58]; and (5) Defendant's September 17, 2007 letter to the Court [DE 59]. I also heard oral argument from the parties on June 18, 2007 and September 5, 2007.*fn1


A. Factual Background

Plaintiff commenced this action against Defendant seeking damages based upon Defendant's alleged breach of contract.*fn2 In or about October 2003, Plaintiff, a company engaged in selling wholesale pharmaceutical products throughout the United States, and Defendant, a supplier of pharmaceutical goods, entered into a multi-year supply agreement ("Supply Agreement") that obligated Plaintiff to purchase from Defendant substantially all of its pharmaceutical products for resale. Plaintiff alleges that between approximately October 2003 through the first quarter of 2006, Plaintiff placed orders with Defendant for an aggregate of $1,483,587,185.78 of pharmaceutical products, but Defendant failed to deliver an aggregate of $1,032,622,011.56 of those products, which Plaintiff claims were necessary to fulfill its customer orders.

Plaintiff contends primarily that (1) Defendant's failure to deliver these products constituted a breach of the Supply Agreement, and (2) although Plaintiff attempted to obtain the ordered pharmaceutical products elsewhere, it was unable to do so. Plaintiff also claims that because the Supply Agreement contained provisions limiting Defendant's liability for certain damages, the Supply Agreement was unconscionable and void as against New York public policy. Finally, Plaintiff claims that Defendant refused to accept for return any goods that became unsaleable by virtue of expiration date, damage, or otherwise, and that this refusal constituted a separate breach of the Supply Agreement.

B. Procedural History

On June 18, 2007, the parties appeared before the Court for a status conference to discuss numerous outstanding discovery issues and applications. During that conference, I heard the parties' respective positions regarding the adequacy of Plaintiff's response to Defendant's Document Request No. 17. I instructed the parties to confer in good faith and stated that if they could not resolve their differences, Defendant could file an appropriate motion to compel [DE 36]. Subsequently, Defendant filed, and Plaintiff responded to, the instant motion to compel, and the parties appeared before me for oral argument on September 5, 2007. During the September 5 hearing, Defendant presented several exhibits for which Plaintiff apparently had not received any notice. To avoid any possible prejudice, Plaintiff was given an additional week to file a written response addressing the issues raised by the exhibits during the discovery hearing. Plaintiff filed that written response on September 12, 2007 [DE 58] and Defendant responded on September 17, 2007 [DE 59].


A motion to compel is entrusted to the sound discretion of the district court. Am. Sav. Bank, FSB v. UBS Paine Webber, Inc. (In re Fitch, Inc.), 330 F.3d 104, 108 (2d Cir. 2003); United States v. Sanders, 211 F.3d 711, 720 (2d Cir. 2000). The Second Circuit has noted that a "trial court enjoys wide discretion in its handling of pre-trial discovery, and its rulings with regard to discovery are reversed only upon a clear showing of an abuse of discretion." DG Creditor Corp. v. Dabah (In re DG Acquisition Corp.), 151 F.3d 75, 79 (2d Cir. 1998) (citing Cruden v. Bank of New York, 957 F.2d 961, 972 (2d Cir. 1992)). A district court is considered to have abused its discretion only "if it bases its ruling on a mistaken application of the law or a clearly erroneous finding of fact." Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001).


Federal Rule 26(b)(1) defines the appropriate scope of discovery as "any non-privileged matter that is relevant to any party's claim or defense . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action."*fn3 "Relevance" under Rule 26 "has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); Barrett v. City of New York, 237 F.R.D. 39, 40 (E.D.N.Y. 2006) (noting that the information sought "need not be admissible at trial to be discoverable"). This Court has held that the ...

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