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Acheron Medical Supply, LLC v. Cook Medical Inc.

United States District Court, S.D. Indiana, Indianapolis Division

September 29, 2016

ACHERON MEDICAL SUPPLY, LLC, Plaintiff,
v.
COOK MEDICAL INCORPORATED, et al., Defendants.

          ENTRY ON PLAINTIFF'S MOTION TO COMPEL [DOC. 40]

          Denise K. LaRue United States Magistrate Judge

         Acheron Medical Supply, LLC brought this action for damages for breach of contract against Cook Medical Incorporated and Cook Medical LLC (together “Cook Medical” or “Cook”). In July 2014 Acheron and Cook Medical, LLC entered into a five-year Distribution Agreement (Agreement) pursuant to which Acheron was to be the exclusive distributor to the Veterans Administration (VA) and Department of Defense (DOD) Medical Centers of endoscopy medical products manufactured by Cook and a non-exclusive distributor of other Cook products. The Agreement provided that Acheron would obtain a Federal Supply Schedule (FSS) contract and use it to sell the products. Acheron claims that Cook breached the Agreement by refusing to use Acheron to distribute products to the DOD until Acheron acquired an FSS with the VA, that Cook's refusal triggered an audit in the FSS process, and that Cook refused to cooperate with an audit of Cook Medical's Customer Pricing Records requested by the VA's Office of Inspector General (OIG) as part of the FSS application process. As a result, Acheron alleges that it was unable to obtain an FSS, which Cook cited as its reason for terminating the Agreement.

         Plaintiff's Motion to Compel as limited by agreement of the parties following informal discovery conferences held on August 19 and 22, 2016, concerns: information the VA's OIG had requested of Cook Medical as a condition of acting on Acheron's application for an FSS, which is the subject of Interrogatory No. 22 of Plaintiff's Second Set of Interrogatories, and other information regarding Cook Medical's discount pricing, which is Interrogatory No. 23 of Plaintiff's Second Set of Interrogatories. Corresponding documents are sought in Request for Production Nos. 19 and 20, respectively. The discovery at issue was served on Defendants' counsel by mail on June 24, 2016.

         More specifically, the interrogatories state:

22. Provide all information that was requested by the Department of Veterans Affairs Office of Inspector General in its letter to Ron Walters of Cook Medical dated August 14, 2014 (“OIG Letter”) as listed in Enclosure A to that letter in the suggested record layout set forth in Enclosure B to that letter.
23. To the extent not expressly requested in Enclosure A to the OIG Letter, or not already included in your response to Enclosure A, also provide the following information:
• Discounts Cook Medical gives to commercial end-user customers
• Discounts given to Valued Added Resellers
• Discounts given to Dealers/Distributors/Re-sellers. If there are tiers of discounts based on different classes provide those as well and indicate within which category Acheron fell
• Discounts given to national accounts
• Discounts for state and/or local governments
• Discounts given to any educational institutions
• Discounts given to prime vendors/syndicated buying ...

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