United States v. Anthem, Inc.

Opinion

O'Melveny O'Melveny & Myers LLP T: +1 213 430 6000 File Number: 400 South Hope Street F: +1 213 430 6407 Los Angeles, CA 90071-2899 □□□

July 28, 2023 D: +1 213-480 6560 jbowman@omm.com VIA ELECTRONIC DELIVERY AND COURT FILING USDC SDNY The Honorable Katharine H. Parker DOCUMENT Daniel Patrick Moynihan United States Courthouse ELECTRONICALLY FILED 500 Pearl Street, Room 750 DOC #: New York, New York 10007 DATE FILED:_ 7/31/2023 Re: United States of America vy. Anthem, Inc., 1:20-cv-02593-ALC-KHP Dear Judge Parker: We represent Defendant Anthem, Inc. in the above-captioned matter. We write concerning a discovery dispute between the parties that we ask the Court to address at the case management conference that is currently scheduled for August 22, 2023. This dispute concerns Anthem’s request that Plaintiff produce approximately 20,000 documents that Plaintiff was ordered to produce in United States ex rel. Poehling v. United Health Group, Inc. (C.D. Cal.) (“Poehling’’) after originally withholding those documents on grounds of deliberative process privilege. See Poehling, 2018 WL 8459926, at *16 (Dec. 14, 2018). In Poehling, the United States alleges violations of the False Claims Act (“FCA”) by another Medicare Advantage Organization (“MAO”) based on the same business practices at issue in this lawsuit. Plaintiff objects to the production of these same documents from the Poehling litigation in this case. Anthem submits that these objections have no merit. The parties have exchanged written communications and met and conferred on this dispute via telephone on multiple occasions, with the most recent meet and confer occurring July 19, 2023, but we have not been able to resolve this dispute. Anthem believes the parties have reached an impasse and intends to ask the Court to compel Plaintiff to (1) produce these 20,000 documents; and (ii) provide a deadline by which Plaintiff will produce these materials, as well as other Poehling discovery materials that Plaintiff has already agreed to produce during the parties’ extensive meet and confer process. Anthem proposes that the parties be granted leave to file separate position statements on these disputed issues on August 15, 2023, one week in advance of the August 22, 2023 case management conference.! Per the Court’s direction at the May 17, 2023 case management

' During the case management conference before the Court on July 25, 2023, Plaintiff informed the Court that it expected to request an alternate date for the August case management conference. Plaintiff has yet to do so. To the extent that the August conference is postponed to a later date, Anthem respectfully requests that the position statements requested in this letter be filed no later than seven days before the conference.

O'Melveny conference that the parties could request to submit position statements on complex discovery issues beyond the typical three-page limit, (see 5.17.23 Tr. at 16:5-18:23), Anthem respectfully requests that these position statements be no more than five pages single-spaced or ten pages double-spaced, as the Court prefers. Anthem submits that these position statements would be helpful to the Court’s understanding of this dispute because there is a considerable procedural background to the Poehling ruling that is relevant to Plaintiffs objections, as well as ways that several judicial decisions post-dating the Poehling ruling intersect with Anthem’s anticipated defenses and the regulatory framework underlying the Medicare Advantage program. For this reason, Anthem submits that this limited briefing will greatly aid the Court’s understanding and resolution of this discovery dispute. Plaintiff’s Position on Anthem’s Request for Briefing. When asked for its position on Anthem’s request to file position statements, Plaintiff said it intends to continue to meet and confer with Anthem regarding any disputes ahead of the next conference with the Court, in order to better understand Anthem’s position and requests, and to determine whether the parties can resolve matters without the need for the Court’s intervention. Ifa dispute remains, Plaintiff stated that it does not believe that 10-page briefs are necessary, and it instead proposes that the parties be permitted to file three single-spaced pages of letter briefing ahead of the conference. Anthem thanks the Court for its consideration of this request.

SO ORDERED: Votan 14 Fake HON. KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE 7/31/2023 The Court shall discuss the discovery dispute at the conference scheduled on August 22, 2023. Defendant's request for briefing is granted in part. The parties shall file their position statements of three pages single-spaced by August 15, 2023. The parties shall continue to meet and confer and shall update the Court via the agenda letter if the parties no longer need to address this dispute.

O'Melveny Dated: July 28, 2023 Respectfully submitted, By: /s/ James. A. Bowman JAMES A. BOWMAN, Pro Hac Vice O’>MELVENY & MYERS LLP 400 South Hope Street, 18th Floor Los Angeles, CA 90071 Telephone:(213) 430-6000 Facsimile: (213) 430-6407 jbowman@omm.com K. LEE BLALACK, II, Pro Hac Vice ANWAR GRAVES, Pro Hac Vice O’>MELVENY & MYERS LLP 1625 Eye Street, N.W. Washington, D.C. 20006 Telephone: (202) 383-5300 Facsimile: (202) 383-5414 Iblalack@omm.com agraves@omm.com DAVID DEATON, Pro Hac Vice O’>MELVENY & MYERS LLP 610 Newport Center Drive, 17th Floor Newport, CA 92660 Telephone:(949) 823-6900 Facsimile: (949) 823-6994 ddeaton@omm.com HEYWARD BONYATA, Pro Hac Vice NELSON MULLINS RILEY & SCARBOROUGH LLP 1320 Main Street, 17th Floor Columbia, SC 29201 Telephone: (803) 255-9655 heyward.bonyata@nelsonmullins.com JOHN MARTIN, Pro Hac Vice NELSON MULLINS RILEY & SCARBOROUGH LLP 1320 Main Street, 17th Floor Columbia, SC 29201 Telephone: (803) 255-9241 john.martin@nelsonmullins.com Attorneys for Defendant Anthem, Inc.

O'Melveny

cc: Assistant United States Attorney Jeannette Anne Vargas, Esq. Assistant United States Attorney Rebecca Sol Tinio, Esq. Assistant United States Attorney Peter Max Aronoff, Esq. Assistant United States Attorney Zachary Bannon, Esq. Assistant United States Attorney Charles Salim Jacob, Esq. Assistant United States Attorney Adam M. Gitlin, Esq. Assistant United States Attorney Dana Walsh Kumar, Esq.