Medical Center at Elizabeth Place LLC v. MedAmerica Health Systems Corporation et al

Filing 85

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' AND PLAINTIFF'S MOTIONS TO COMPEL (Docs. 59 and 63 ). Signed by Judge Timothy S. Black on 10/16/2013. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

THE MEDICAL CENTER
AT ELIZABETH PLACE, LLC,
Plaintiff,
vs.
PREMIER HEALTH PARTNERS, et al.,
Defendants.

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Case No. 3:12-cv-26

Judge Timothy S. Black

ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ AND PLAINTIFF’S MOTIONS TO COMPEL
(Docs. 59 and 63)
This civil action is before the Court on Defendants’ and Plaintiff’s motions to
compel (Docs. 59 and 63) non-party subpoena recipient Community Insurance Company
d/b/a Anthem Blue Cross and Blue Shield (“Anthem”) to produce documents. Anthem
has filed its comprehensive memorandum contra (Doc. 66), and the moving parties have
filed reply memoranda (Docs. 70, 74). The Court heard oral argument on September 30,
2013.
I.

BACKGROUND FACTS

Anthem is the largest insurer in the Dayton area. Plaintiff’s theory is essentially
that Plaintiff was denied contracts with managed care providers as a result of a purported
conspiracy orchestrated by Premier (and including Anthem) to exclude Plaintiff from the
marketplace.
1

The Amended Complaint alleges that Defendants "coerc[ed], compelled], coopted] or financially induced] commercial health insurers or managed care providers,
including Anthem ... to refuse to permit [MCEP] full access to their respective networks."
(Doc. 7 at ¶ 74(a) (emphasis added)). The Amended Complaint further alleges that
Defendants coerced commercial health insurers "to provide reimbursement rates that
were below market and below the rates and on different terms from the Hospital
Defendants demanded for the exact same services." (Id. at ¶ 74(f)).
The parties maintain that the documents they seek from Anthem go directly to
these allegations. The Court agrees that the nature of and rationale for Anthem’s actions
in its relationship with Plaintiff are central to evaluating the claim that Anthem acted in
concert with Premier to harm Plaintiff.
Both Plaintiff and Defendant served subpoenas on Anthem to obtain documents
related to the alleged conspiracy. Anthem has agreed to produce its communications with
each of the parties, but not its internal deliberations regarding the parties. Anthem claims
that the parties seek to compel a burdensome array of highly confidential documents that
would, among other things, disclose Anthem’s strategies in negotiating contracts with the
parties.

2

Anthem has agreed to produce the following: 1
(1) Anthem preserved the electronic mailboxes of the three employees responsible
for hospital contracting in the Dayton area from 2006 to 2009 and would
search those e-mailboxes as well as the e-mailboxes of the two people
responsible for hospital contracting in the Dayton area since 2009. Anthem
requested that the parties agree on one set of search terms to be applied to the
five e-mailboxes;
(2) Contracts with Plaintiff and Defendants from 2006 to the present, with all
pricing terms redacted, subject to a modified protective order;
(3) Communications between Anthem and Plaintiff about contracting from 2006 to
the present, with the production focused on searches of the five employee emailboxes described above;
(4) Communications between Anthem and Plaintiff about Premier and between
Anthem and Premier about Plaintiff from 2006 to the present, with the
production focused on searches of the five employee e-mailboxes described
above;
(5) Communications between Anthem and Kettering about a contract with Plaintiff
from 2006 to the present, with the production focused on searches of the five
employee e-mailboxes described above;
(6) For the period 2006 to the present, a list and summary of each product it
offered in the Dayton area and a list and summary of the number of its
subscribers enrolled in each product; and
(7) Non-confidential documents that set forth its policies, rules, and access
standards for participation in Anthem networks.
Anthem claims that the production of these documents alone will cost in excess of
$100,000.00. (Doc. 66-1 at ¶ 7).

1

Anthem’s proposed agreed production was contingent upon revising the protective order to
eliminate the provision that would allow counsel to summarily evaluate for clients documents
marked “Highly Confidential – Outside Counsel’s Eyes Only”. (Doc. 43 at ¶ 16).
3

Anthem refuses to produce the following three categories of documents unless the
Court orders it to do so:
(1) Anthem’s internal communications, analyses and claims paid data relating to
Plaintiff;
(2) Anthem’s contracts with other providers in the Dayton area, and documents
reflecting the negotiations, communications and internal analyses regarding
such contracts and providers; and
(3) Documents reflecting Anthem’s policies toward physician-owned hospitals in
the Dayton area.
(Doc. 59, Ex. D).
II.

STANDARD OF REVIEW

The Federal Rules of Civil Procedure grant parties the right to “obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed.
R. Civ. P. 26(b)(1). Relevance for discovery purposes is extremely broad. Lewis v. ACB
Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998). However, “district courts have
discretion to limit the scope of discovery where the information sought is overly broad or
would prove unduly burdensome to produce.” Surles ex rel. Johnson v. Greyhound
Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007).
Under Rule 45 of the Federal Rules of Civil Procedure, parties may command a
nonparty to, inter alia, produce documents. Fed. R. Civ. P. 45(a)(1). Rule 45 further
provides that “the issuing court must quash or modify a subpoena that…requires
disclosure of privileged or other protected matter, if no exception or waiver applies; or
subjects a person to undue burden.” Fed. R. Civ. P. 45(c)(3)(A)(iii), (iv). Although
4

irrelevance or overbreadth are not specifically listed under Rule 45 as a basis for
quashing a subpoena, courts “have held that the scope of discovery under a subpoena is
the same as the scope of discovery under Rule 26.” Hendricks v. Total Quality Logistics,
275 F.R.D. 251, 253 (S.D. Ohio 2011).
In striking the balance between a party’s need for discovery and a non-party’s
interest in protecting confidential information, courts apply a three-pronged test. First,
the court considers whether the entity seeking protection has shown that the information
sought is proprietary and that its disclosure might be harmful. If so, the court looks to
whether the party seeking the discovery has established that the information is relevant
and necessary to the underlying action. Spartanburg Reg. Healthcare Sys. v. Hillenbrand
Indus., No. 1:05mc107, 2005 U.S. Dist. LEXIS 30594, at *11 (W.D. Mich. Aug. 24,
2005). If those two inquiries are answered in the affirmative, the court then balances the
need for discovery of the information against the harm that will result from disclosure.
“Where, as here, discovery is sought from a non party, the Court should be particularly
sensitive to weighing the probative value of the information sought against the burden of
production on the non party.” Universal Delaware v. Comdata Network, No. 3:10mc104,
2011 U.S. Dist. LEXIS 28963, at *7 (M.D. Tenn. Mar. 21, 2011). 2

2

See, e.g., Sagebrush Solutions, LLC v. Health Mgmt. Sys. (In re CareSource Mgmt. Group
Co.), 289 F.R.D. 251, 253 (S.D. Ohio 2013) (“Courts are required to balance the need for
discovery against the burden imposed on the person ordered to produce documents, and the
status of a person as a non-party is a factor that weighs against disclosure.”).
5

This Court has already ruled twice in this case that the type of information that the
parties seek from Anthem is relevant and shall be produced by non-parties Kettering
Health Network and Riverview Health Institute, despite their strenuous objections.
III.
A.

ANALYSIS

Defendants’ Requests

Anthem’s dispute with Defendants involves only three discrete categories of
documents.
Defendants maintain that only five Anthem employees worked in the Dayton area
during the period covered by the subpoena. (Doc. 59, Ex. D at 3). Defendants maintain
that Anthem could identify the documents at issue by running search terms across these
five employees’ electronic documents and conducting targeted searches of Anthem’s hard
copy files for the Dayton area. As set forth in this Order, Anthem shall do so.
1. Anthem’s Internal Communications, Analyses, and Claims Paid Data
Relating to MCEP (Request Nos. 2, 4, 7)
a. Internal communications and analyses
Defendants maintain that Anthem’s internal communications, deliberations and
analyses regarding Plaintiff, including Anthem’s decisions whether or not to contract
with Plaintiff, are relevant to Plaintiff’s allegations that it was denied contracts with
managed care payors, or had to accept such contracts on less desirable terms due to an
alleged “boycott.” (Doc. 59, Ex. A). Defendants claim they need this discovery to
uncover the actual reasons why Plaintiff allegedly could not obtain contracts with
6

Anthem or on the terms that Plaintiff wanted. See Carpet Group Int’l v. Oriental Rug
Importers Assoc., Inc., No. 95-5574, 2005 U.S. Dist. LEXIS 41855, at *9-10 (D.N.J. Jan.
19, 2005) (Plaintiff’s “causation evidence…must establish that the injuries which
plaintiff claims are attributable to the antitrust conspiracy, and not to other factors,” and
that “the illegality was a material cause of the alleged injury.”).
Anthem’s documents are especially relevant in light of news articles where it is
reported that Anthem offered Plaintiff a contract in 2008, but Plaintiff rejected it. (Doc.
59, Ex. 1). Plaintiff’s CEO, Alex Rintoul, said that "[a]n Anthem contract would be a
linchpin for MCEP ... and could well open the door to a contract with UnitedHealthcare." (Id.) A few months later, another news article reported that Plaintiff had
finalized a contract with Anthem to participate in its "traditional, all managed care and
'Senior Advantage"' networks. (Id., Ex. 2). At the time, Rintoul said that the Anthem
contract "should mean a 35 percent increase in Plaintiff's patient volumes." (Id.) These
articles underscore the importance of Anthem to Plaintiff and its relevance to the
allegations in the Amended Complaint.
Plaintiff opened in September 2006, but did not enter into a contract with Anthem
until 2009, after Kettering had purchased a 50% ownership interest in Plaintiff and taken
over negotiations with payers on Plaintiff’s behalf. (Doc. 74, Ex. B at 168). Before
Kettering purchased its ownership interest in Plaintiff, Anthem’s representative told
Plaintiff that it would have to be in business for a full year before it could be considered
for a contract. (Doc. 74-1 at 120). After the one year had passed, Anthem offered
7

Plaintiff a contract, but Plaintiff deemed its terms unreasonable and rejected it. (Id. at
140-142). Specifically, Plaintiff found Anthem’s proposal to be too limited in the
products that it covered and the reimbursement rates were below its expectations. (Id.)
Plaintiff’s CEO testified that he believes that Anthem’s representative created the
requirement that providers must be in operation for one year before contracting with
Anthem as a pretext to keep Plaintiff out of network. (Id. at 132-133). He believes that it
was not official Anthem policy because he knows of other hospital providers in other
markets that were not required to wait a year before entering a contract with Anthem.
(Id.) Plaintiff’s CEO also testified that, at an early meeting between Anthem and
Plaintiff, Anthem’s representative made a cryptic reference to a “secret handshake” that
Plaintiff would have to learn before it could obtain a contract. (Id. at 122-124). No one
ever asked Anthem’s representative to explain his reference to the “secret handshake” or
to elaborate on the information that Plaintiff needed to learn to get a contract. (Id.)
Instead, Plaintiff’s CEO inferred that the reference to the “secret handshake” was meant
to insinuate that a hidden force or “power that be” was at work to deny Plaintiff a
contract with Anthem. (Id.) Plaintiff further inferred that those hidden forces involved
Premier Health Partners. (Id.)
In 2009, Kettering’s contracting representative, Bryan Weber, secured a contract
with Anthem on Plaintiff’s behalf. (Doc. 74-2 at 168). Weber described negotiations
with Anthem as “lengthy and complex,” but was not aware of any facts suggesting that
Premier influenced those negotiations in any way. (Id. at 80). He testified that Anthem
8

would not provide Plaintiff the rates that Plaintiff wanted because Anthem analogized
Plaintiff to an outpatient surgery center, which does not receive rates equivalent to those
received by hospitals. (Id. at 134-136). It was also more difficult to negotiate Plaintiff’s
rates because Anthem’s large market share gave it substantial leverage and Anthem
simply did not need Plaintiff’s 26 beds in its provider network. (Id. at 204-206, 215-216;
268-269). Weber worked at Anthem for thirteen-and-one half years in the Dayton area
before he joined Kettering in 2008. (Id. at 14-15). Weber testified that, in the eighteenplus years that he has been in the insurance industry in Dayton he was not aware of any
facts indicating that Plaintiff was ever denied access to a payer’s network or provided
reimbursement rates that were below market or below the rates that Premier received for
the same services as a result of any coercion by Premier or any of the Defendants. (Id. at
399-406).
Defendants maintain that only Anthem’s internal communications, analyses, and
deliberations can resolve the discrepancy between: (1) Plaintiff’s inferences about why it
had difficulties getting a contract with Anthem; and (2) Weber’s testimony that Plaintiff’s
difficulties were caused by Anthem’s substantial leverage as the largest payer in the
Dayton area, Anthem’s characterization of Plaintiff as an outpatient surgery center, and
the fact that Anthem simply did not need Plaintiff in its network to meet its obligations to
its insureds. Anthem’s internal documents are needed to explain why Anthem offered
Plaintiff the rates that it did and Anthem’s internal analyses are required to determine
how Anthem viewed Plaintiff as a participant in the market and whether Plaintiff’s
9

perceived difficulties obtaining a satisfactory contract with Anthem were the result of
any alleged boycott or instead independent market forces and independent decisions.
(Doc. 74, Ex. C at ¶ 17).
Anthem agrees to produce its communications with Plaintiff, but objects to
producing any documents that contain or reflect Anthem’s internal communications,
analyses, and deliberations relating to Plaintiff.
The Court finds that the documents sought are highly relevant and that the burden
of production upon Anthem is not undue. Accordingly, Anthem shall produce the
requested documents, to wit: Anthem’s internal communications, deliberations and
analyses regarding Plaintiff, including Anthem’s decisions whether or not to contract
with Plaintiff.
b. Claims paid data
Defendants also request certain claims data regarding Plaintiff because
Defendants' expert needs managed care payors' claims data to assess Plaintiff’s
competitive position in the Dayton area marketplace (as well as the Dayton area
marketplace itself ). 3 (Doc. 59, Ex. A).
Anthem objects to this request on undue burden grounds, claiming that responding
to this request would require it to obtain “more than 20,000 claims” through a “manual
3

This request asks Anthem to execute a routine data run from its claims database. Defendants
do not seek any patient identification information, and other payors have avoided any concerns
regarding the Health Insurance Portability and Accountability Act ("HIPAA") by substituting
placeholders for such information in the data that they produce. None of the other managed care
payors that received this identical request from Defendants have objected to it.
10

process” amounting to “hundreds of hours of work.” (Doc. 66 at 8). 4 Additionally,
Anthem argues that Defendants should obtain Plaintiffs’ claims data from Plaintiff and
not Anthem. 5
The need to obtain this information from the non-party Anthem is because
Plaintiff’s records apparently do not capture the information sought. Had Plaintiff
recorded this information in the first instance, the parties would not be putting the nonparty to the expense and burden of production. Accordingly, if the parties desire this
information, Plaintiff and Defendants shall each bear one-half of Anthem’s reasonable
and necessary financial cost of production.
2. Anthem’s Contracts with Other Providers in the Dayton Area
Including Kettering Health Network, and Documents Reflecting the
Negotiations and Communications Regarding Such Contracts
(Requests No. 8, 9, 10, 13)
Next, Defendants requested that Anthem produce its contracts with other hospital
providers in the Dayton area and documents reflecting Anthem’s negotiations and
communications about such contracts so that Defendants can evaluate the merits of
4

Based on discussions with other payers regarding their document productions in this case,
Defendants maintain that payers process nearly all claims for reimbursement electronically and
maintain an electronic database of the same and to produce claims data Anthem should only need
to query the database. Other payers (such as United HealthCare – the second largest payer in
Dayton) have already produced such documents. (Doc. 74 at 3).
5

Defendants recognize that they can obtain claims data from Plaintiff (Doc. 59 at 5), which, as
the party who began the lawsuit, has no basis for objecting or claiming undue burden. However,
Plaintiff has produced its claims data and having reviewed it, Defendants argue that it is
disorganized and incomplete. (Doc. 74, Ex. D at ¶¶ 6-8). Plaintiff’s counsel acknowledged the
incompleteness and agreed that Anthem’s claims data for Plaintiff is likely to be more complete
than any claims data maintained by Plaintiff. Anthem claims it would take 52 work days to
produce this information.
11

Plaintiff’s per se claim. Defendants claim that information about Anthem’s relationships
with Dayton area hospitals is critical to assessing the size, strength and operation of the
marketplace. That assessment will inform the determination of whether Plaintiff’s per se
claim is viable or whether any purported antitrust injury has occurred. 6
To establish a Section 1 claim, Plaintiff must show not only that it was injured by
Defendants’ alleged conduct, but also that the challenged conduct had an actual adverse
effect on competition as a whole in the relevant markets. Therefore, Defendants maintain
that to defend themselves, they must understand and explain the impact of the challenged
conduct on competition in the Dayton area markets at issue. (Doc. 74-3 at ¶ 6).
Anthem refuses to produce its contracts with any hospital provider in the Dayton
area other than Plaintiff, or any documents relating to its negotiations or communications
regarding such contracts, on confidentiality grounds. (Doc. 59, Ex. A). Additionally,
Anthem claims that the documents are irrelevant because there is no evidence that
deliberations about a contract with a non-party is necessary to assess a “marketplace.”
Finally, Plaintiff argues that Defendants’ statement that they “could not efficiently obtain
such market-wide information elsewhere” (Doc. 59 at 6) acknowledges that there are
other sources of “market-wide information” and thus it is not necessary that Defendants
invade the secrecy of documents held by Anthem.

6

Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 294
(1985) (before applying the per se rule, courts must evaluate whether the practice “would always
or almost always tend to restrict competition and decrease output” or could be “justified by
plausible argument that [it was] intended to enhance overall efficiency and make markets more
competitive”).
12

The Court is persuaded that the burden upon Anthem to produce the pricing terms
of its contracts with other Dayton area hospitals, and Anthem’s internal communications
about those contracts, is undue and that the preserved confidentiality of Anthem’s
contracts’ pricing terms trumps the parties’ desire to empty Anthem’s internal
communications about highly confidential business strategies. The Court is not
convinced that the parties cannot evaluate the marketplace without raiding Anthem’s
secrets. There are other sources of “market-wide information.” Accordingly, the parties’
demand that Anthem produce the pricing terms of Anthem’s contracts with other Dayton
area hospitals, and Anthem’s internal communications about those contracts, is denied. 7
3. Documents Reflecting Anthem’s Policies Toward Physician-Owned
Hospitals in the Dayton Area
Finally, Defendants request documents reflecting Anthem’s policies toward
physician owned hospitals that were applicable in the Dayton area from 2006 to the
present. Defendants claim that payors’ policies toward physician-owned hospitals in the
Dayton area are relevant to whether Plaintiff can show, not only that a purported antitrust

7

The need for the Riverview production as ordered was more compelling than the generalized
need for production from Anthem – as Riverview competes in the hospital services business in
Dayton in the very manner Plaintiff claims is impossible – out-of-network, without government
payer patients, and from the same building Plaintiff is located. As to Kettering’s protestation of
risks to confidentiality, the Court’s order to Kettering to produce was fueled in part by the fact
that Kettering is now a 49% owner of Plaintiff. As this case develops, and the Court’s exposure
and understanding evolves, the Court seeks to reign in overly exhaustive discovery of the
marketplace and instead focus on determining whether the underlying material facts are
undisputed.
13

injury has occurred, but whether any such antitrust injury was caused by per se illegal
conduct and not other independent market factors. 8
Specifically, the parties and the fact-finders need to understand the reasons why
Anthem made its contracting decisions. Plaintiff is a physician-owned hospital, and if
Anthem has policies regarding how it views or interacts with physician-owned hospitals,
such information is highly relevant. Such polices would help inform how the
marketplace operates in the Dayton area and whether Plaintiff’s alleged injuries were
caused by independent market factors unrelated to any alleged conduct by Defendants.
Anthem has agreed produce its contract with Plaintiff, with pricing information
redacted, and will produce communications between and among Anthem, Plaintiff, and
Kettering about such contracting. However, Anthem claims that its confidential policies
toward physician-owned hospitals in the Dayton area are unnecessary to Defendants’
defenses.
The Court finds that Anthem’s policies toward physician-owned hospitals that
were applicable in the Dayton area from 2006 to the present, if any, are highly relevant
and shall be produced by Anthem at its expense.
B. Confidentiality
Anthem maintains that its ability to effectively negotiate contracts is contingent
upon keeping the terms and conditions of its contracts with providers strictly confidential.
8

Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 344 (1990) (per se plaintiff must
show antitrust injury and “can recover only if the loss stems from a competition-reducing aspect
or effect of the defendant’s behavior”).
14

(Doc. 66-1at ¶ 5). Anthem views all materials and techniques it uses to analyze cost,
quality, and treatment patterns, forecast future usage and cast trends, plan negotiation
strategies, develop contract proposals, and analyze providers as strictly confidential, trade
secret material. (Id. at ¶ 10). Anthem claims that if such information became known to
the providers they would have a road map to its methods and goals and would put it at an
impossible disadvantage in contract negotiations. (Id.)
Anthem maintains that the danger of significant competitive harm if its
confidential materials are discloses is particularly acute in Dayton, where Premier and
Kettering have made Dayton a virtual two-hospital marketplace. (Doc. 66-1 at ¶ 11).
Premier is a defendant and Kettering holds a large ownership interest in the Plaintiff. As
a result, Anthem claims that any production of its confidential contracting documents
would be made to representatives of the two dominant hospital systems in the area, each
of which is looking for a means to gain an advantage in their contracting negotiations
with Anthem. If the parties were to obtain its confidential information, it would reduce
pricing competition in the Dayton area and increase health care costs. (Id. at ¶ 12). In
fact, Anthem is currently engaged in contract negotiations with Premier. (Id. at ¶ 13).
However, the allegation that production of Anthem’s confidential materials would
undercut Anthem’s current contract negotiations with Premier is unfounded because none
of the attorneys serving as Defendants’ counsel in this case have any part in Premier’s
negotiations of its managed care contracts with payers, including Anthem. Therefore, to
keep any sensitive materials from Premier, Anthem need only designate them as “Highly
15

Confidential – Attorneys’ Eyes Only.” Additionally, Premier represents that it is not
building an Accountable Care Organization. (Doc. 74 at 6). Finally, the previous
litigation that Anthem references is irrelevant to this case.
This Court has already determined that the Protective Order is sufficient to protect
the commercially sensitive information of two businesses (Kettering and Riverview) that
compete with Premier. Anthem is no different.
C. Protective Order
Anthem claims that the Protective Order does not provide adequate protection for
the highly confidential materials sought by the subpoenas.
Assuming the information possesses the sensitivity that Anthem attributes to it,
Anthem’s concerns assume that the parties will violate the Protective Order. There is no
basis to presume that such a violation will occur. This Court has repeatedly recognized
that an appropriate Protective Order provides the necessary safeguards. See, e.g., E3
Biofuels, LLC v. Biothane Corp., No. 1:12-mc-76, 2013 U.S. Dist. LEXIS 100793, at *3
(S.D. Ohio July 18, 2013) (“This Court has routinely approved proposed protective
orders seeking to protect both ‘confidential’ and ‘highly confidential/attorney eyes only’
material when, in addition to trade secret or other confidential research, development, or
commercial information, particularly sensitive information of a similar nature may be
disclosed through discovery and would cause competitive harm if publicly revealed.”).
See also the Minute Entry and Notation Order of 2/20/13 in the instant case.
The analysis is the same as to Anthem here.
16

D. Burden
Anthem maintains that the subpoenas will impose a significant financial burden.
Anthem claims that the cost Anthem will incur in order to review all the collection of
emails from the identified employees will exceed $100,000. (Doc. 66-1 at ¶ 7). And
Anthem plausibly posits that producing the additional documents sought by the
subpoenas would further increase the cost and burden.
Defendants maintain that Anthem has already agreed to search the e-mailboxes of
the five custodians who handled contract negotiations for Anthem in the Dayton area
from 2006 to the present. Defendants maintain that its internal communications relating
to Plaintiff should be stored in those same e-mailboxes. Thus Anthem has already agreed
to collect, search, and review the internal documents Defendants have requested and they
should not be any additional cost.
The Court has afforded cost shifting to ameliorate Anthem’s concerns. 9

9

While the general rule is that the party responding to a discovery request should bear the cost,
a trial court has discretion to shift the cost under Federal Rule of Civil Procedure 26(c) to protect
the responding party from undue burden or expense. See, e.g., Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 358 (1978) (“The presumption is that the responding party must bear the
expense of complying with discovery requests, but he may invoke the district court’s discretion
under Rule 26(c) to grant orders protecting him from ‘undue burden or expense’ in doing so,
including orders conditioning discovery on the requesting party’s payment of the costs of
discovery.”).
17

E. Plaintiff’s Document Requests
Anthem has objected to production of all of the following of Plaintiff’s requests. 10
1.

Specifications 3, 4, 8, 9, 10 11

These requests seek information regarding Anthem’s agreements, or lack of
agreements, outside the Dayton area. Plaintiff claims these are relevant documents
because of Anthem’s position regarding its refusal to contract with Plaintiff. Plaintiff
maintains that Defendants’ contract with Anthem played a role in its inability to gain
access to Anthem’s products and Plaintiff is thus entitled to probe whether these
statements are pretexts intended to cover up the conspiracy. Plaintiff claims that
Anthem’s contracting behavior in Ohio -- but outside the Dayton area (and the
Defendants’ control) -- is probative of that issue. For example, Defendants state that part
of their defense will be that “everyone” has contract language similar to that which
Plaintiff challenges. Plaintiff maintains that these contracts in other parts of Ohio will
reveal whether the provisions in Defendants’ contracts are unique.

10

Anthem generally argues that three of Plaintiff’s disputed requests, Specifications 3, 4, and 12,
ask for information that Anthem does not readily maintain. (Doc. 66 at 8-9). Anthem maintains
that it would take hundreds of hours of individualized inquires to obtain this information.
Plaintiff maintains that Anthem’s poor file organization does not insulate it from searching for
probative information. See, e.g., Dunn v. Midwestern Indem., 88 F.R.D. 191, 198 (S.D. Ohio
1980) (“To allow a defendant whose business generates massive records to frustrate discovery,
by creating an inadequate filing system and then claiming undue burden, would defeat the
purpose of the discovery rules.”). Of course the Court cannot require Anthem to produce
something that does not exist – and particularly when the absence of documents is not
necessarily a product of poor filing so much as a result occurring because Anthem does not deem
it necessary to create or organize its documents in the manner Plaintiff requests.
11

See also fn. 10.
18

The Court is not currently persuaded that discovery need reach beyond the Dayton
market. Accordingly, Anthem’s duty to respond shall be limited to inquiries relating to
the Dayton area.
2.

Specification 11

Specification 11 seeks communications that Anthem had with other plans
regarding Plaintiff which goes directly to the scope of the conspiracy. Plaintiff has
agreed that Anthem can exclude documents that deal only with the handling or payment
of claims.
The Court finds that communications Anthem had with other plans regarding
Plaintiff is highly relevant and shall be produced at Anthem’s expense.
3.

Specification 12 12

This request seeks information about the parties’ respective costs and the quality
of services, and mirrors a request by the Defendants. Plaintiff seeks this information to
be reciprocal and coextensive with information provided in response to Defendants’
request.
The need to receive this information from the non-party Anthem is because
Plaintiff’s records apparently do not capture the information sought. Had Plaintiff
recorded this information in the first instance, the parties would not be putting the nonparty to the expense and burden of production. Accordingly, if Plaintiff desires this

12

See also fn. 10.
19

information, Plaintiff shall bear one-half of Anthem’s reasonable and necessary financial
cost of production.
4.

Specification 13

This request seeks information about comparisons of the cost of hospital services
in the Dayton area (excluding documents relating only to claim payment). Plaintiff
argues that this information will permit Plaintiff to probe the price (reimbursement rates)
differences between what the Defendants pay Anthem versus the rest of the Dayton area
hospitals with which Anthem has contracted. These differences are allegedly relevant to
the Defendants’ market power as well as the bona fides of the proposition that Plaintiff’s
exclusion from Anthem’s plans permitted the Defendants to charge reduced
reimbursement rates. The latter is a form of financial inducement that Plaintiff alleges
Defendants used to get plans like Anthem to deny Plaintiff. (Doc. 7 at ¶ 74(a)).
The Court is persuaded that the burden upon Anthem to produce the pricing terms
of its contracts with other Dayton area hospitals, and Anthem’s internal communications
about those contracts, is undue and that the preserved confidentiality of Anthem’s
contracts’ pricing terms trumps the parties’ desire to empty Anthem’s internal
communications about highly confidential business strategies. Accordingly, the parties’
demand that Anthem produce the pricing terms of Anthem’s contracts with other Dayton
area hospitals, and Anthem’s internal communications about those contracts, is denied. 13

13

See fn. 7.
20

5.

Specification 16

Next, Plaintiff requests documents sufficient to show the reimbursement rates that
Defendants sought during their contract negotiations with Anthem in 2004-2005.
Plaintiff maintains that this request is directly relevant to Plaintiff’s allegation that
Defendants collectively constituted a “must have” trading partner which permitted them
to compel Anthem to agree to exclude Plaintiff from Anthem’s plans. (Doc. 7 at ¶ 65).
The Dayton Business Journal reported in 2004 that Defendants sought a 45% increase in
prices from Anthem and when Anthem refused, the Defendants withdrew from Anthem’s
products for a little over a year, before Anthem agreed to terms that Defendants found
acceptable. Plaintiff maintains that the details of that dispute are probative of this “must
have” status Defendants enjoy in the market and which contributes to their ability to
implement their conspiracy.
The Court finds that Plaintiff can inquire of Defendants, and not of non-party
Anthem, what the reimbursement rates were that Defendants sought during their contract
negotiations with Anthem in 2004-2005. Non-party Anthem need not be burdened with a
request that the adverse party can provide. Accordingly, Plaintiff’s demand that Anthem
be required to produce documents sufficient to show what the reimbursement rates were
that Defendants sought during their contract negotiations with Anthem in 2004-2005 is
denied.

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6.

Specification 17

Next, Plaintiff seeks all documents concerning Anthem’s decision to contract with
the Dayton Heart Hospital. Dayton Heart Hospital was the only other for-profit hospital
operating in the Dayton area during the relevant time period. Plaintiff alleges that
Dayton Heart was the first victim of the Defendants’ conspiracy. (Doc. 7 at ¶¶ 72-73).
When Anthem lost the Defendants as providers as a result of the 2004-2005 dispute,
Anthem signed an agreement with Dayton Heart. Plaintiff maintains that information
related to the decision and its timing is probative of whether the lack of a contract with
the Defendants enabled that decision by Anthem, and it is also probative of the bona fides
of Anthem’s statements in the Dayton Business Journal article about its standards for
adding hospitals to their products.
The Court finds that the request seeks highly relevant information and does not
present an undue burden upon Anthem. Accordingly, Anthem shall produce documents
responsive to this request at its expense.
F. Plaintiff’s Incomplete Production
1. Specification 5
This request seeks Anthem contracts with Plaintiff’s competitors for the time
period 2005 to present. Anthem will produce contracts with Plaintiff and the Defendants
from 2006 to the present with the pricing terms redacted, but will not produce contracts
with any other entity or the pricing terms of the Defendants’ agreements. (Doc. 63, Ex. C
at 2, 4). The contracts with other hospitals relate to Plaintiff’s allegation that the
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Defendants’ agreement with Anthem was the cause of Anthem’s exclusion of Plaintiff;
they are also probative of Defendants’ “everyone does it” defense.
The Court is persuaded that the burden upon Anthem to produce the pricing terms
of its contracts with other Dayton area hospitals, and Anthem’s internal communications
about those contracts, is undue and that the preserved confidentiality of Anthem’s
contracts’ pricing terms trumps the parties’ desire to empty Anthem’s internal
communications about highly confidential business strategies. Accordingly, the parties’
demand that Anthem produce the pricing terms of Anthem’s contracts with other Dayton
area hospitals, and Anthem’s internal communications about those contracts, is denied. 14
2. Specifications 7 and 15
Specification 7 seeks documents regarding any Anthem decision not to contract
with Plaintiff. Specifically, it seeks documents relating to any agreement Anthem had
with any Defendant that operated to bar Anthem from contracting with Plaintiff. Plaintiff
alleges that Defendants orchestrated a group boycott that resulted in Anthem refusing to
contract with Plaintiff and therefore Anthem’s internal deliberations regarding Plaintiff’s
repeated requests for a contract are relevant and shall be produced by Anthem.
The Court finds that the request seeks highly relevant information and does not
present an undue burden upon Anthem. Accordingly, Anthem shall produce documents
responsive to this request at its expense.

14

See fn. 7.
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3. Specification 14
This specification seeks documents sufficient to show Anthem’s policies and
access standards for participation by a hospital in any Anthem product. Plaintiff claims it
is entitled to any such policy, whether confidential or public, in order to show the jury
that it met all Anthem’s standards but still could not get a contract.
Anthem has only agreed to produce non-confidential information. (Doc. 63, Ex. C
at 5).
Upon review, the Court determines that Anthem shall produce all publically
available information reflecting Anthem’s policies and access standards for participation
by a hospital in any Anthem product.
IV.

CONCLUSION

Accordingly, for the foregoing reasons, Defendants’ motion to compel (Doc. 59)
and Plaintiff’s motion to compel (Doc. 63) are granted in part and denied in part, as set
forth above; to wit:
Anthem shall produce:
1. Anthem preserved the electronic mailboxes of the three employees responsible
for hospital contracting in the Dayton area from 2006 to 2009 and shall search
those e-mailboxes as well as the e-mailboxes of the two people responsible for
hospital contracting in the Dayton area since 2009. The parties shall agree on
one set of search terms to be applied to the five e-mailboxes;
2. Contracts with Plaintiff and Defendants from 2006 to the present, with all
pricing terms redacted;

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3. Communications between Anthem and Plaintiff about contracting from 2006 to
the present, with the production focused on searches of the five employee emailboxes described above;
4. Communications between Anthem and Plaintiff about Premier and between
Anthem and Premier about Plaintiff from 2006 to the present, with the
production focused on searches of the five employee e-mailboxes described
above;
5. Communications between Anthem and Kettering about a contract with Plaintiff
from 2006 to the present, with the production focused on searches of the five
employee e-mailboxes described above;
6. For the period 2006 to the present, a list and summary of each product it
offered in the Dayton area and a list and summary of the number of its
subscribers enrolled in each product;
7. Non-confidential documents that set forth its policies, rules, and access
standards for participation in Anthem networks;
8. Anthem’s internal communications, deliberations and analyses regarding
Plaintiff, including Anthem’s decisions whether or not to contract with
Plaintiff;
9. Claims paid data relating to Plaintiff (at the parties’ cost);
10. Anthem’s policies toward physician-owned hospitals that were applicable in
the Dayton area from 2006 to the present, if any;
11. Communications Anthem had with other plans regarding Plaintiff;
12. All documents concerning Anthem’s decision to contract with the Dayton
Health Hospital; and
13. All publically available information reflecting Anthem’s policies and access
standards for participation by a hospital in any Anthem product.
IT IS SO ORDERED.
/s/ Timothy S. Black
Timothy S. Black
United States District Judge

Date: 10/16/13
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