JORLING v. ANTHEM, INC. et al

Filing 154

ORDER granting IN PART Pltfs' 116 Motion to Compel (see Order for details). Signed by Magistrate Judge Tim A. Baker on 5/24/2011. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARY E. ORMOND, et al.,
Plaintiffs,
vs.
ANTHEM, INC., et al.,
Defendants.

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1:05-cv-1908-TWP-TAB

----------------------------------------------------JEFFREY D. JORLING, on behalf of
himself and all others similarly situated,
Plaintiff,
vs.
ANTHEM, INC., et al.,
Defendants.
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1:09-cv-798-TWP-TAB

ORDER ON PLAINTIFF’S MOTION TO COMPEL1
I.

Introduction
If discovery disputes are “for better or worse, the daily bread of magistrate and district

judges in the age of the disappearing trial,” Lee v. Max Int’l, LLC, No. 10-4129, 2011 WL
1651640, at *2 (10th Cir. May 3, 2011), this case provides a feast. On today’s menu is
application of the attorney-client privilege. Some communications on Defendants’ privilege log
are unrelated to legal advice and must be produced. Other communications, despite their

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Although this motion is captioned in both Ormond and Jorling, as Defendants point out,
Ormond discovery closed on June 5, 2009. [Ormond Docket No. 152.] The Ormond Plaintiffs
have not sought to enlarge the discovery deadline and do not dispute Defendants’ assertion that
only the Jorling motion is proper. The Court therefore denies the motion in Ormond [Ormond
Docket No. 380] and, considering only the Jorling motion, cites to the Jorling record.

disclosure to third parties, remain privileged because the third parties’ involvement was to
further effective legal representation. Plaintiff’s motion to compel [Docket No. 116] is therefore
granted in part.
II.

Background
In 1998, Defendant Anthem Insurance Companies, Inc. engaged Milliman to advise and

assist on actuarial matters related to Anthem’s 2001 demutualization. [Docket No. 131, Ex. 1.]
Anthem retained EquiServe (now known as ComputerShare) in 2001 “as its demutualization
agent to help with communicating information and distributing consideration from the
demutualization to Anthem’s members.” [Docket No. 131 at 3.] The demutualization resulted in
this lawsuit, and Plaintiff sought Anthem’s communications with Milliman and EquiServe in
discovery.
On December 14 and 17, 2010, Defendants produced 12,612 pages of documents which
Milliman provided to Anthem in late 2010 for privilege review. On December 17, 2010,
Defendants provided two privilege logs listing all documents withheld or redacted from its
production. Defendants listed 346 documents which were withheld for attorney-client privilege
and 67 documents which were redacted for privilege. These documents are generally email
communications either between Milliman employees or among Milliman, EquiServe, and
Anthem employees (or outside counsel). Plaintiff believed that Defendants improperly asserted
the privilege and requested “unredacted copies of all attorney-client communications which have
been disclosed to third parties, as well as unredacted copies of any communications where
counsel has not been included in the communication.” [Docket No. 118, Ex. C at 3.]
On March 29, 2011, Defendants moved for summary judgment and attached a “12/12/01

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Lampkin Email” as an exhibit. This email identified Milliman files which Plaintiff requested on
April 1. Defendants refused to produce two of the files because they contain member-specific
information.
The parties exchanged detailed letters outlining their positions and also met and
conferred in person on April 7, 2011. [Docket Nos. 117 at 5; 118, Exs. C and D.] Despite these
good faith attempts, the parties were unable to resolve their disputes, and Plaintiff filed this
motion to compel. [Docket No. 116.]
III.

Discussion
A.

Failure to assert privilege

At the outset, Plaintiff argues that for numerous privilege and redaction log entries,
Defendants have not met their burden of demonstrating that all the requirements of the attorneyclient privilege have been met. The elements of the privilege are well established:
(1) Where legal advice was sought, (2) from a professional legal adviser in his
capacity as such, (3) the communications related to that purpose, (4) were made in
confidence, (5) by the client, (6) were at his instance permanently protected, (7)
from disclosure by himself or the legal adviser, (8) except the protection was
waived.
United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997). As to certain privilege and
redaction log entries, Defendants have not met this burden. Although the entries show
communications involving attorneys, they do not show that the communications were related to
legal advice. Instead, the entries describe the following types of documents:
•
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“Email with attachment regarding draft plan of conversion,”
“Email regarding discussion with Department of Insurance,”
“Email with attachment regarding fixed share issues,”
“Email with attachment regarding eligible members,”
“Email with attachment regarding draft actuarial contribution memorandum,”
“Email string with attachment regarding group issues,”
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•
•

“Email string regarding subscriber issues,” and
“Email string with attachment regarding DOI advisors conference call.”

[Docket No. 120, Ex. A.] Defendants do not dispute that these descriptions are unrelated to legal
advice, and Defendants’ other entries show that they were capable of including such a
description. [E.g., Docket No. 120, Ex. A (“Document . . . prepared at the direction of counsel,”
“Email with attachment regarding legal advice as to privileged communications”).] Defendants
have therefore waived privilege for the entry numbers listed on pages 3 and 4 of Plaintiff’s
opening brief [Docket No. 117] and shall produce those documents within 28 days.
B.

Privilege waiver

As described above, the attorney-client privilege requires that communications be made
in confidence, resulting in waiver when communications are disclosed to a third party.
However, disclosure to a third party does not waive privilege when the third party is the
attorney’s or client’s agent. Evans, 113 F.3d at 1462 (“[T]he attorney-client privilege will not
shield from disclosure statements made by a client to his or her attorney in the presence of a third
party who is not an agent of either the client or attorney.”) (citing 8 John Henry Wigmore,
Evidence in Trials at Common Law § 2311 (John T. McNaughton rev. 1961)); see also Heriot v.
Byrne, 257 F.R.D. 645, 665 (N.D. Ill. 2009) (relying on Evans). The exception, however, does
not eliminate the other requirements for application of the privilege, including the requirement
that the communication be related to seeking or giving legal advice.
Plaintiff recognizes this exception but argues that Anthem’s communications with
Milliman and EquiServe do not fall under it. Plaintiff asserts that Milliman was hired to assist in
providing an actuarial opinion for a regulatory proceeding, and that EquiServe simply provided
demutualization mailing and distribution services. [Docket No. 117 at 8–9.] Defendants argue
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that communications with Milliman and EquiServe were necessary to their legal representation.
1.

Communications involving Milliman

Defendants assert that disclosure to Milliman “was necessary for Anthem and its legal
counsel to be able to assess and communicate about legal issues relating to the demutualization.”
[Docket No. 131 at 8.] Defendants rely on the declaration of Tibor D. Klopfer, lead outside
attorney for the Anthem demutualization. [Docket No. 131, Ex. 2.] Klopfer states:
Milliman served as Anthem’s outside actuarial advisor to assist Anthem with
various actuarial matters related to the Plan of Conversion, the Actuarial
Contribution Memorandum, as well as other matters in conjunction with the
demutualization.
In order to effectively advise Anthem on legal issues related to the
demutualization, I periodically directed Milliman personnel—either personally or
through Anthem—to provide information and analyses on actuarial issues, and I
received documents or communications prepared by Milliman for my review. I
am not an actuary. The Milliman consultants’ actuarial expertise was critical to
fully advising Anthem as to its legal rights and obligations in the demutualization.
Anthem, and Milliman, as Anthem’s actuarial consultant, also sought legal
advice from me regarding Milliman’s work in the course of its engagement. As
Anthem’s counsel, I provided advice about legal issues related to the
demutualization to Milliman and Anthem.
[Docket No. 131, Ex. 2 at 3 (paragraph numbers removed).] Defendants further point out that
Indiana statutes require that any “formula for allocating consideration among eligible members”
must “utilize generally accepted actuarial principles.” [Docket No. 131 at 8 (quoting Ind. Code
§§ 27-15-9-1, -2).]
Given the state regulations involved, some of the Milliman communications were
undoubtedly necessary for counsel to advise Anthem about its legal compliance. But other
Milliman communications may have provided only business advice related to the
demutualization. Separating these communications might require the Court to find its own
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consultant, but fortunately, Defendants’ privilege log does the sifting. As discussed above, some
of Defendants’ privilege log entries do not relate to legal advice. These communications—likely
business related—are not privileged, and must be produced within 28 days. Other entries relate
to legal advice and need not be produced.
2.

Communications involving EquiServe

Only two privilege log entries reflect communications involving EquiServe: both are
emails sent to counsel and EquiServe “regarding demutualization plan reflecting issues for
counsel review.” [Docket No. 120, Ex. 2 at entries 50, 52.] Defendants explain that Anthem
provided EquiServe with an Excel spreadsheet listing a timeline of demutualization tasks,
including one line identifying an issue for counsel’s review. Defendants argue that this
disclosure did not waive privilege because EquiServe was its demutualization agent. [Docket
No. 131 at 8.]
Anthem’s limited disclosure to EquiServe does not waive privilege. Though limiting the
information provided to EquiServe may have been more prudent, Anthem was not careless with
its information, and EquiServe’s participation was part of legal representation concerning
Anthem’s compliance with notice and distribution statutes. Ind. Code §§ 27-15-5-3, 27-15-8-1.
C.

Files containing member-specific information

Finally, Plaintiff seeks two Milliman-generated files which Defendants refused to
produce because they contain member-specific information, noting that the Court has
consistently ordered Defendants to produce relevant documents with such information redacted.
[Docket No. 117 at 10.] Defendants respond that the two documents—Excel files totaling over
1,300 printed pages—cannot be completely redacted because member-specific information

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would remain in the metadata. [Docket No. 131 at 13–14.] Plaintiff suggests that Defendants
simply “produce the information in a different, non-native format so that the metadata of the
electronic files is not accessible to Plaintiffs.” [Docket No. 137 at 9.] This is a reasonable
solution. Defendants shall produce the files in a format permitting redaction of member-specific
information within 28 days.
IV.

Conclusion
Plaintiff’s motion to compel [Docket No. 116] is granted in part. Within 28 days,

Defendants shall provide the documents specified on pages 3 and 4 of Plaintiff’s brief [Docket
No. 117], as well as the two Milliman-generated files containing member-specific information in
a format permitting redaction of that information.
Dated: 05/24/2011

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

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Copies to:
Matthew Thomas Albaugh
BAKER & DANIELS - Indianapolis
[e-mail]

Kevin M. Kimmerling
BAKER & DANIELS - Indianapolis
[e-mail]

Dennis Paul Barron
[e-mail]

Cari C. Laufenberg
KELLER ROHRBACK L.L.P.
[e-mail]

Michael F. Becker
THE BECKER LAW FIRM CO., L.P.A.
[e-mail]

Adam K. Levin
HOGAN LOVELLS US LLP
[e-mail]

Peter R. Bisio
HOGAN LOVELLS US LLP
[e-mail]

Neil F Mara
BERGER & MONTAGUE, P.C.
[e-mail]

Todd S Collins
BERGER & MONTAGUE, P.C.
[e-mail]

H. Laddie Montague Jr
BERGER & MONTAGUE P.C.
[e-mail]

T. David Copley
KELLER ROHRBACK, L.L.P.
[e-mail]

Anne Kramer Ricchiuto
BAKER & DANIELS - Indianapolis
[e-mail]

Edward O'Donnell DeLaney
DELANEY & DELANEY LLC
[e-mail]

Lynn L. Sarko
KELLER ROHRBACK, L.L.P.
[e-mail]

Kathleen Ann DeLaney
DELANEY & DELANEY LLC
[e-mail]

Christopher G. Scanlon
BAKER & DANIELS - Indianapolis
[e-mail]

Craig A. Hoover
HOGAN LOVELLS US LLP
[e-mail]

Paul A. Wolfla
BAKER & DANIELS - Indianapolis
[e-mail]

Peter R. Kahana
BERGER & MONTAGUE, P.C.
[e-mail]

Eric Hyman Zagrans
[e-mail]

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