United States v. Anthem, Inc.

Background

At a discovery conference, the parties raised disputes about document production. Anthem objected to the Government’s Request for Production No. 4-2, which sought records concerning deletions connected to various audits and programs. The Government objected to Anthem’s Requests for Production Nos. 15-16 and 27-30, which sought additional records about two letters to the Centers for Medicare & Medicaid Services, retrospective chart reviews, risk-adjustment attestations, risk scores, and adjustment payments.

The court applied Federal Rule of Civil Procedure 26(b)(1), which permits discovery of nonprivileged information relevant to a claim or defense and proportional to the case’s needs. The court also considered Rule 26(b)(2)(C), which requires limits on discovery that is unreasonably cumulative, duplicative, or obtainable from a more convenient, less burdensome, or less expensive source.

Government RFP No. 4-2

The court had already determined that the requested information was relevant. The Government sought communications among Anthem personnel about why codes were deleted and how decisions were made about deleting them. The court stated that this information was relevant to scienter—the knowledge or intent element of the Government’s fraud claim.

The Government’s search terms produced approximately 160,000 documents. Anthem argued that the search was too broad and burdensome, particularly because it was already reviewing nearly 760,000 documents for other requests. The court noted that Anthem had not provided an estimate of the time or cost required to review the additional documents and had not reviewed a sample to assess the search results.

The court directed Anthem to review a sample of the documents, determine whether they were responsive, and identify possible refinements to the search. Anthem had to be prepared to report its findings at the next case-management conference and, beforehand, provide the Government with any insights and proposed revised search terms, if appropriate, along with the reasons for them.

Anthem RFPs Nos. 15-16

The Government had already searched for records concerning two letters from Anthem Medicare President Marc Russo and had produced documents. Anthem argued that the Government’s search terms were too restrictive. The Government responded that little additional communication was likely because an investigation had already begun and Department of Justice lawyers were assisting with a response to one letter; it also stated that there had been no response to the other letter.

A search using the letters’ subject-line words produced 63 additional documents, which the Government had not searched. Another search using “Russo” or “Anthem” and “Letter” produced approximately 4,000 documents that the Government considered too broad. Because reviewing the 63 documents would impose minimal burden, the court directed the Government to review them for responsiveness and produce any responsive documents. The parties also had to meet and confer about refining the broader search, including by adding the letters’ dates, and report back at the next case-management conference.

Anthem RFPs Nos. 27-30

The Government had produced more than one million documents, including the attestations it contended were false and at issue. Anthem believed additional Anthem-specific documents should be produced and proposed search terms that returned approximately 13,000 additional documents, including document family members.

The court found that Anthem had not shown that additional responsive documents had been missed merely because it had identified only 170 responsive documents in the Government’s production. The court did, however, identify a potential issue with the search term “attest*,” because it might not have retrieved all documents concerning attestations. The Government was directed to determine whether it had used the proper root-word expander and, if appropriate, identify, review, and produce additional responsive documents. The Government had to report back by the next conference.

Additional Directions and Disposition

The parties had to meet and confer about document-family expansion hit counts. If they could not resolve that dispute, they had to file a joint letter by January 31, 2025, limited to six pages excluding attachments. They also had to discuss deposition dates and be prepared to address dates reserved for depositions of key witnesses at the next case-management conference.

Judge Katharine H. Parker entered a post-conference discovery order directing these targeted searches, reviews, meet-and-confer efforts, and reports. The opinion did not enter judgment on, or decide the merits of, the Government’s fraud claim.