Free Motion for Reconsideration - District Court of Delaware - Delaware

Case 1 :04-cv-01258-SLR Document 330 Filed 04/14/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MCKESSON INFORMATION SOLUTIONS LLC, )
Plaintiff, g
v. g Civil Action No. 04-125 8-SLR
THE TRIZETTO GROUP, INC., g
Defendant. 3
)
MCKESSON’S MOTION FOR PARTIAL
RECONSIDERATION OR, IN THE ALTERNATIVE, FOR PARTIAL STAY
OF ENFORCEMENT PENDING APPELLATE REVIEW, OF THE COURT’S
APRIL 11, 2006 MEMORANDUM ORDER REGARDING PRETRIAL ISSUES
Plaintiff McKesson Information Solutions LLC ("McKesson"), by its
counsel, hereby respectfhlly moves this Court to reconsider il 12(b) if its Apiil 11, 2006
Memorandum Order (D.I. 320) or, in the alternative, to stay enforcement of that
paragraph of the April Il, 2006 Order pending immediate appellate review by McKesson.
As grounds for this motion, McKesson states as follows:
l. On April ll, 2006, this Court issued a Memorandum Order on
pretrial issues. D.I. 320. Among other things, the Order directed McKesson to produce
to defendant The TriZetto Group, Inc. ("TriZetto") four documents that McKesson
contends are protected from disclosure by the attorney-client and work product privileges.
D.I. 320, 1[ 12; McKesson’s April 7, 2006 submission with documents attached
for gi @ review, D.I. 313. The Court ordered production of the documents by no
later than the end of the day today. kl, 1] l2(e).

Case 1 :04-cv-01258-SLR Document 330 Filed 04/14/2006 Page 2 of 4
2. McKesson has now produced to TriZetto three of the four
documents, referenced at D.I. 320, 1]1] l2(a), l2(c) and l2(d), respectively. However,
McKesson has not produced the document referenced at 1] l2(b).
3. Although McKesson continues to believe that all four documents
are privileged, with respect to the document referenced at 1] 12(b), McKesson must
continue to pursue all remaining avenues of judicial relief to protect it from disclosure.
As the Court is aware, the document consists of pages 10-13 of a 13-page analysis of
options, prepared on the advice and with the input of McKesson’s counsel, in anticipation
of litigation. Q; Wukitch Decl. 1]1] 6-9, submitted on April 7, 2006. D.I. 313. lf
produced erroneously, McKesson will have no adequate remedy at law. Q
Regents ofthe Univ. of Cal., 101 F .3d 1386, 1387 (Fed. Cir. 1996) ("appeal after
disclosure of the privileged communication is an inadequate remedy").
4. Therefore, McKesson respectfully seeks this Court’s
reconsideration of that one provision of its April 11, 2006 Order, D.I. 320, 1] l2(b). If it
would assist the Court, McKesson will make available at the Court’s convenience a
witness from McKesson who can testify to the Court gg and in camera about the full
basis for the company’s concern. In the alternative, McKesson requests that the Court
stay the enforcement of 1] 12(b) of the Order so that McKesson can seek immediate
appellate review, which it will do immediately upon the Court’s Order.
5. McKesson does not make this motion lightly. It acknowledges the
substantial time and effort that the Court has already devoted to these issues and regrets
that it must continue to litigate on this one point. McKesson also notes that due to the
seriousness of the issue, the decision whether to make this motion required substantial
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Case 1 :04-cv-01258-SLR Document 330 Filed 04/14/2006 Page 3 of 4
communication and contemplation by and among several individuals within the
McKesson organization, some of whom had limited availability. Accordingly,
McKesson was not in a position to make this motion yesterday or the day before.
WHEREFORE, McKesson respectfully moves this Court for an Order
reconsidering its ruling with respect to D.I. 320, 1[ 12(b) or, in the alternative, to stay the
enforcement of that provision of the Order pending appellate review. A proposed form of
order is submitted herewith.
By: /s/ Michael A. Barlow
Thomas J. Allingham H (#0476)
Michael A. Barlow (#3928)
SKADDEN, ARPS, SLATE,
M12Acn12R & From LLP
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899
(302) 651-3000
Attomeys for Plaintiff McKesson
Information Solutions LLC
OF COUNSEL:
Jeffery G. Randall
David W. Hansen
SKADDEN, ARPS, SLATE,
MEAGHER & FLoM LLP
525 University Avenue, Suite 1100
Palo Alto, Califomia 94301
(650) 470-4500
DATED: April 14, 2006
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Case 1 :04-cv-01258-SLR Document 330 Filed 04/14/2006 Page 4 of 4
RULE 7.1.1 CERTIFICATE
I hereby certify that the subject of the foregoing motion has been discussed with
counsel for the defendant and that we have not been able to reach agreement.
/s/ Michael A. Barlow
Michael A. Barlow (#3928)