The Medical Society of the State of New York v. UnitedHealth Group Inc.

Background

Plaintiffs filed a letter motion seeking a pre-motion discovery conference to compel defendants to produce documents that plaintiffs said had been improperly redacted or withheld. The court denied that motion on October 7, 2020. Plaintiffs then moved for reconsideration. Defendants later filed their own motion to compel plaintiffs to produce documents that defendants said had been improperly redacted or withheld.

Plaintiffs’ Motion for Reconsideration

The court concluded that it had not adequately considered plaintiffs’ alternative argument in their earlier motion. Plaintiffs argued that defendants had placed principal defense witness Louise Dobbe’s conduct at issue by relying on her regular review of plan documents as part of her job and on that review’s role in forming a company policy involved in the case.

The court explained that a party may waive attorney-client privilege by making contentions that, as a matter of fairness, require the opposing party to examine otherwise protected communications. The court stated that defendants had placed Dobbe’s role in developing the company policy at issue, and that plaintiffs therefore should have the opportunity to examine the documents and communications forming the basis of her decision. The court acknowledged that the documents might fall outside the fiduciary exception but stated that defendants could still have waived privilege by putting the documents at issue.

Defendants’ Motion to Compel

The court found that the New York Office Based Surgery Providers and its members satisfied the common-interest doctrine for communications and legal advice on the private NYOBS website. That doctrine can protect communications shared by parties with sufficiently aligned legal interests. The court accepted that NYOBS members shared advocacy and litigation interests concerning coverage by commercial payors for office-based-surgery facility fees and challenges to claims administrators’ denials of those claims.

The court also rejected defendants’ arguments that the materials were unprivileged or that plaintiffs waived privilege by using a web designer to create the website used to convey the communications. It concluded that NYOBS’s communications with its members were privileged as part of a coordinated business strategy by a trade association.

Ruling

Judge J. Paul Oetken granted plaintiffs’ motion for reconsideration. Upon reconsideration, the court granted plaintiffs’ motion to compel production. The court denied defendants’ motion to compel and directed the Clerk of Court to close the motions at Docket Numbers 237 and 244.