*1 Pending before the court are Defendant Blue Cross Blue Shield of Michigan's Motion to Compel the Production of Documents from Non-Party Provider Cahaba Medical Care (doc. 1733) and Defendant Blue Cross Blue Shield of Michigan's Motion to Compel the Production of Certain Documents from Non-Party Provider Healthcare Authority of the City of Huntsville (doc. 1747). The motions have been fully briefed, discussed at the In-Person Status Conference held on November 30, 2017, and now are ripe for the court's decision.

I. Cahaba Medical Care

Defendant Blue Cross Blue Shield of Michigan (“BCBS-MI”) argues that Dr. John Waits with Cahaba Medical Care (“Cahaba”) recently testified that Cahaba's Medicaid rates are higher than both its Medicare and commercial payer rates and that its Medicare and commercial payer rates are roughly the same. BCBS-MI maintains that production of Cahaba's Medicaid, Medicare, and commercial payer rates are relevant and not covered by the clear prohibition of Discovery Order No. 34 (doc. 832).[1] Cahaba argues that its Medicaid, Medicare, and commercial payer rates are protected by Discovery Order No. 34, that its rates are not relevant to the instant action, and that discovery of its rates is unduly burdensome for a non-party provider.

The court pretermits any discussion of the limited relevance of Cahaba's government payer rates and whether Discovery Order No. 34 applies for one reason: Dr. Waits put Cahaba's rates into issue with his deposition testimony. Because of this fact, the court will require Cahaba to produce its Medicaid, Medicare, and commercial payer rates from January 1, 2008, to December 31, 2013.

The court recognizes that the time limitation spelled out here conflicts with Discovery Order No. 60 (doc. 1393) where the court ordered Cedars-Sinai Medical Center (“Cedars-Sinai”) and Tenet Healthcare (“Tenet”) to produce their rates of payer reimbursement from January 1, 2010, to December 31, 2015. However, there is an apparent distinction between the situation at hand here and the one in Discovery Order No. 60. Cahaba Medical Care is a much smaller provider than either Cedars-Sinai or Tenet. Prohibiting discovery of payer rates from January 1, 2014, to the present is necessary to protect Cahaba's confidential commercial interests. Cahaba simply does not have the same negotiating leverage or market power to protect its interest as Cedars-Sinai or Tenet. Cahaba is more likely to be harmed and put at a commercial disadvantage if its rates from January 1, 2014, to the present are disclosed to the various Blue Cross entities, who by implication gain a business advantage through discovery of recent rates.

II. Healthcare Authority of the City of Huntsville

*2 BCBS-MI argues that it discovered that the Healthcare Authority of the City of Huntsville (“Huntsville”) maintains exclusivity agreements with multiple commercial payers. As a result, BCBS-MI maintains that Huntsville's commercial payer contracts and any documents related to negotiating an exclusivity provision with a commercial payer are highly relevant because those contracts and documents bear directly “on many key issues at class certification and on the merits.” (Doc. 1747, p. 1). BCBS-MI asserts that the existence of exclusivity provisions in the payer contracts bring those contracts out of the protection of Discovery Order No. 34. Huntsville and Providers argue that Discovery Order No. 34 clearly prohibits the request at hand.[2] Providers maintain that undoing Discovery Order No. 34 would invite a multiplicity of new litigation and that the requested documents are not relevant.

The court recognizes that the exclusivity provisions are somewhat relevant to class certification and payer exit and entry, among other issues. Therefore, the court will require Huntsville to produce redacted payer contracts from January 1, 2010, to December 31, 2015, containing exclusivity provisions sufficient to identify only the payer identity and the exclusivity provision contained in the contract. Additionally, the court will require Huntsville to produce documents from January 1, 2010, to December 31, 2015, sufficient to show the necessity for the exclusivity provisions; however, those documents may be redacted to prevent disclosure of the rates negotiated to acquire the exclusivity provisions.

III. Conclusion

Defendant Blue Cross Blue Shield of Michigan's Motion to Compel the Production of Documents from Non-Party Provider Cahaba Medical Care (doc. 1733) is GRANTED, and Cahaba is ORDERED to produce its Medicaid, Medicare, and commercial payer rates from January 1, 2008, to December 31, 2013.

Defendant Blue Cross Blue Shield of Michigan's Motion to Compel the Production of Certain Documents from Non-Party Provider Healthcare Authority of the City of Huntsville (doc. 1747) is GRANTED. Huntsville is ORDERED to produce (1) redacted copies of its payer contracts from January 1, 2010, to December 31, 2015, containing exclusivity provisions sufficient to identify only the payer identity and the exclusivity provision contained in the contract and (2) documents from January 1, 2010, to December 31, 2015, sufficient to show the necessity for the exclusivity provisions but redacted to prevent disclosure of rates negotiated to acquire the exclusivity provisions.

DONE and ORDERED on December 5, 2017.

In Discovery Order No. 34 (doc. 832), the court disallowed production of documents responsive to Category No. 2 of a subpoena duces tecum served upon various non-party providers. Category No. 2 requested as follows: “For the past five years, a copy of each contract and contracted fee schedule with any commercial health insurer, government program, rental network, and any other third-party payer.” (Internal emphasis added).

See supra note 2, at 2.