United States v. Anthem, Inc.

Background

Anthem, Inc. is a Medicare Advantage Organization that contracts with the Centers for Medicare and Medicaid Services, part of the Department of Health and Human Services. The Government brought this False Claims Act case alleging that Anthem knowingly disregarded its duty to ensure that diagnosis data submitted for Medicare risk-adjustment payments was accurate. The Government alleges that Anthem used retrospective chart reviews to add supported diagnosis codes but did not remove previously submitted codes that the medical records did not support. Anthem denies fraud and asserts that it complied with applicable law and regulations.

Discovery Request

Anthem moved to compel production of “copycat” or “clone” discovery from an earlier litigation involving similar claims against UnitedHealthcare. Its narrowed request sought approximately 2.2 million documents produced in that litigation from 40 custodians. Anthem argued that the documents were relevant and that producing them would not burden the Government because the Government had already produced them in the earlier litigation.

The Government objected that the requested documents included irrelevant materials, including documents outside the relevant period and documents concerning UnitedHealthcare’s bidding process and fee-for-service adjustments. It also objected to documents involving internal agency deliberations and materials marked for attorneys’ eyes only. Before this motion, the Government had already produced 55,000 documents and 49 deposition transcripts with 572 exhibits from the earlier litigation.

Court’s Analysis

The court applied Federal Rule of Civil Procedure 26, which limits discovery to nonprivileged information relevant to a claim or defense and proportionate to the needs of the case. The court also discussed Rule 34’s requirement that document requests describe the requested materials with reasonable particularity and Rule 26(g)’s requirement that attorneys certify that discovery requests are not unreasonable, unduly burdensome, or expensive.

The court explained that requests for all documents produced in another case are generally overbroad and that parties ordinarily must identify and request the information they need. But the court adopted a middle approach because the earlier production included information relevant to this case and using some of that work could reduce burdens for both sides.

Ruling

The court granted in part and denied in part Anthem’s motion at ECF No. 178. It ordered the Government to produce a narrowed subset of the requested documents. For each of the 40 custodians, the Government must apply date limits covering the period when the custodian worked in roles involving issues relevant to this case. The Government must also remove documents generated after 2018, documents about UnitedHealthcare’s bidding process, and documents concerning fee-for-service adjustments or actuarial equivalence.

The Government may remove documents that were originally marked and withheld as protected by the deliberative-process privilege in the earlier litigation, but it must include those documents on a privilege log for this case. The court held that the Government waived that privilege as to documents marked for attorneys’ eyes only in the earlier litigation because it produced them and did not take steps under the protective order to recover them as privileged.

The court further limited the Government’s responses to several remaining requests. For Requests for Production 15, 16, 26, 27, 28, 29, and 30, the Government must search only for Anthem-specific documents. Those searches must use non-earlier-litigation custodians identified by the Government’s recent corporate witness, and the parties must reduce the number of custodians for those searches to fewer than 20. Except for Requests 31 through 33, which do not require searches of individual custodians, the Government does not have to conduct additional searches of electronically stored information for the other requests. Anthem must show good cause before serving additional document requests.

The court also directed the parties to meet and confer about custodians and search terms and to produce responsive noncustodial documents by the next case-management conference.