As has been widely reported, on July 21, 2016, the Antitrust Division of the DOJ filed two separate complaints to block both Anthem's acquisition of Cigna and Aetna's acquisition of Humana, alleging both acquisitions violate the federal antitrust laws. In both cases, the parties have decided to fight the DOJ's challenge. Originally, both cases were scheduled to be heard by the same judge, but due to the parties' request for an expedited trial, the judge separated the two cases to speed along the review. As such, the Anthem/Cigna trial will begin on November 21, 2016, while the Aetna/Humana trial will begin on December 5, 2016. Decisions in both cases are expected in January of 2017.
As is typical for complex antitrust matters, the parties will likely issue many third party subpoenas to providers as well as other health insurers as part of the discovery process. These third party documents will help the parties defend against the DOJ's allegations that the acquisitions are anticompetitive. Due to the expedited time frame for the trial, the discovery process has also been expedited, which will likely catch many third parties in the crosshairs of a quick discovery process.
When receiving a third party subpoena, there are a number of different options to consider in developing a response strategy. While determining the correct strategy for your organization, here are a few practical considerations to keep in mind that will help simplify the process and reduce the burden.
- Negotiate the Scope of the Subpoena. The subpoena will likely ask for a broad range of documents and information. The first step is typically for your counsel to reach out to counsel for the serving party and negotiate the scope of the subpoena into a more targeted, manageable production. It is likely that the serving party does not want to be drowned in documents and would prefer a more focused and targeted production. As part of this negotiation process and as a means of efficiently organizing and complying with the subpoena, it is typical to limit the production of documents to certain key "custodians."
- Negotiate the Production Due Date. The production due date on the subpoena will likely be very quick and often unreasonable. During the negotiation with counsel for the serving party, it is typical to negotiate a more reasonable time frame, including agreeing to a "rolling production," where documents are produced in a rolling manner as they are collected and reviewed.
- Prepare and Send Written Objections. Within 14 days after receiving a subpoena, written objections must be sent to the serving party. Preparing and sending written objections puts the ball back in the court of the serving party and provides certain practical protections.
- Consider a Motion to Quash. If the subpoena is too burdensome or too unreasonable, consider filing a motion to quash the subpoena with the court. This strategy should be considered carefully because it is possible this motion might create a lot of work and ultimately be denied by the court.
- Review the Protective Order. The court in each case has approved a Protective Order that, in part, governs the confidential treatment of third party documents. Because many of the requested documents will contain competitively sensitive information, it is crucial to understand the treatment of confidential documents under the Protective Order and the correct procedural steps to take. This will ensure your competitively sensitive information is protected from being made public.
- Issue a Litigation Hold. A litigation hold functions as a detailed set of instructions to all relevant members of your organization and helps to preserve all documents and electronically stored information ("ESI") or data related to the litigation by suspending any record destruction policies. This hold is critical to your compliance with the court order and should be broadly applied to physical documents and ESI wherever it may be located including documents and information stored outside your physical offices by third party vendors. As part of the litigation hold and as a means of efficiently organizing and complying with the required document production, it is important to notify all key individuals and your entity's information technology staff of their duty to preserve all documents related to the litigation.
- Collect and Review the Documents. The most time consuming and burdensome part of the process will be collecting and reviewing the documents. Depending on the outcome of the negotiations with counsel for the serving party, your collection of documents will either feature a "forensic" or "targeted" pull of documents. It is often important to sit down with the identified custodians to understand how they maintain their documents, as well as whether and to what extent they have responsive documents. Once collected, the documents should be reviewed by counsel for responsiveness, privilege and confidentiality determination. This is a critical step to ensure privileged material is not produced and the documents are given the appropriate confidentiality designation. There are many strategies and methods to implement in order to make this part as efficient as possible.