RJ v. Cigna Behavioral Health, Inc.

Background

The parties asked the court to resolve a discovery dispute about defendants’ reliance on the common-interest doctrine for communications with counsel for United Behavioral Health in a related case. Shortly before fact discovery closed, the plaintiffs learned that defendants had entered into a common-interest agreement with United. The defendants agreed to produce the written joint-defense agreement but declined to produce other communications or materials.

Legal standard and arguments

The court explained that voluntarily disclosing privileged or protected information to a third party ordinarily waives the privilege or protection. The common-interest, or joint-defense, doctrine is an exception when separately represented parties communicate confidentially about a shared legal interest and in furtherance of that interest. The doctrine does not itself create a privilege; it can prevent waiver only when an existing privilege or protection already covers the material.

The plaintiffs argued that the doctrine did not apply because United was not a party to this case and did not share defendants’ legal interests. They emphasized differences between the two cases, including the insurance plans, plan language, employers, members, reimbursement methods, telephone calls, and alleged fee programs. Defendants argued that they and United shared a legal interest in defending claims concerning their use of the Viant OPR pricing data for intensive outpatient claims.

Ruling

The court concluded that defendants and United shared a common legal interest in defending the claims concerning the Viant OPR pricing tool. The court relied in part on a former MultiPlan employee’s declaration in the related case, which described problems with the OPR data and stated that the conduct affected MultiPlan customers, including Cigna and United. The court found that this supported an inference that defendants and United exchanged materials and communicated as part of a common legal strategy, rather than merely sharing a commercial interest.

The court cautioned that the doctrine’s protection might not extend beyond matters covered by that shared legal interest. However, the parties’ submission did not provide enough information to determine whether any requested documents fell outside that scope. The court also stated that the plaintiffs were not entitled to documents unless the documents were subject to defendants’ required disclosures or responsive to a request for production under the discovery rules. The plaintiffs had not identified a pending document request, described the documents’ subject matter, or identified privilege-log entries for which supplementation was sought.

On the record presented, the court concluded that defendants had shown a common legal interest with United in the related case and that the plaintiffs had not shown waiver of privilege or work-product protection for documents or communications exchanged with United outside that common-interest scope.