This discovery dispute is about a 2013 analysis of CMS's asserted authority to promulgate the Medical Record Review Rule, a proposed regulation CMS ultimately withdrew that would have required Medicare Advantage plans to “look both ways” if they conduct chart reviews. In other words, the proposed rule would have required that plans do precisely what the government now claims United should have done in this case. This 2013 analysis has generated a dizzying array of varied privilege positions by the government and its witnesses. Over a dozen versions of memos containing the analysis were produced, clawed back, reproduced, re-clawed back, and reproduced again, as recently as this week. The most recent of these claw backs occurred after the parties' June 20 informal discovery conference. Adding to the confusion, the government's primary 30(b)(6) witness recently testified that a version of the memo containing the analysis did not reflect any advice of counsel, but then the government's attorneys changed course and represented that the memo's analysis of the proposed rule expressly reflects the opinions of the Office of General Counsel. But rather than claim privilege over the entirety of the relevant analysis, the government has improperly cherry-picked portions of the analysis that support its theory of the case. United respectfully requests that the Special Master order that the government unredact the analysis of the Medical Record Review Rule in the various versions of the memo at issue. When the government chose to waive privilege by selectively unredacting only the language most favorable to its case— painting an inaccurate and misleading picture of the evidence—it waived privilege over the remainder of the analysis. Alternatively, the government should at least have to unredact several sentences that it improperly clawed back after the June 20 informal discovery conference. The government affirmatively identified that language as not privileged in 2022, and the Protective Order expressly prohibits a party from clawing back documents it has “previously identified as not privileged.”

This dispute revolves around three sentences that appear 82 times in the United States' document production. Two of those sentences clearly reflect legal advice communicated by attorneys in the HHS Office of General Counsel, and the United States has redacted them. United does not—and cannot—dispute that those two sentences are privileged. Instead, United essentially makes a variety of other arguments in an attempt to invade the privilege. First, United argues that the government cannot claw back certain versions of documents containing these two sentences that were produced with inconsistent redactions. But the United States' clawbacks are consistent with the parties' Protective Order and no different than United's own clawbacks ... Second, United argues that the description of communications from the Office of General Counsel address issues that are central to this litigation, so United would like to introduce those communications as evidence at trial. But the Ninth Circuit has repeatedly held that attorney-client privilege cannot be overcome by a showing of need. And in this case, both the United States and United have withheld on attorney-client privilege grounds thousands of documents relating to the issues in dispute ... Third, United argues that the United States waived any protection over the first two sentences by producing the third sentence at issue in this dispute. But United's own brief, the witnesses' testimony, and the document itself all support that the third sentence is not privileged. Releasing non-privileged portions of a document does not effect a waiver for privileged material. Finally, United argues that the United States has somehow injected the privileged communications into this matter. But it was United—not the United States—that identified the memo containing the privileged communications as a deposition exhibit and asked government witnesses about this memo. In the end, United's brief does not provide any defensible basis for invading the United States' privilege and merely addresses the common issue of inconsistent redactions, which both parties contemplated when negotiating their protective order ...

The government spends most of its brief responding to arguments United has never made. To be clear, this is not a run-of-the-mill dispute about inconsistent redactions. Nor is United seeking privileged communications based on need alone. This is, first and foremost, a dispute about intentional waiver. At issue is an analysis of CMS's legal authority, which the government has repeatedly insisted reflects advice from the Office of General Counsel (“OGC”). The government intentionally waived privilege over part of that legal analysis, the part it believes benefits its case. Under the well-established doctrine of selective waiver, United is entitled to the rest. In response to United's selective-waiver argument—the core of the dispute before the Special Master—the government offers only two brief responses. First, it claims, in passing, that there was no waiver because the language it disclosed on June 8, 2023, was not privileged at all. In other words, the government contends that some of the analysis of CMS's legal authority is privileged, and some is not, even within the same paragraph. The government does not offer any meaningful explanation why that is true or even how it could be true. The government simply cites testimony from Anne Hornsby stating that no part of the memo reflects the opinions of lawyers—a fact the government repeatedly denies elsewhere in its brief and that, even if true, could not support the government's position that some parts of the analysis are privileged while others are not. Second, the government claims that no waiver has occurred because it has not yet affirmatively relied on the language it disclosed on June 8. But the law is clear that selective waiver occurs as soon as a party produces privileged material. The government does not cite a single case holding otherwise.... Alternatively, one sentence of the relevant analysis (the second sentence of what is currently redacted) should be unredacted for the independent reason that the government's post-IDC claw back was improper under the Protective Order, which prohibits the claw back of documents a party has affirmatively identified as not privileged. In response, the government makes the astonishing claim that it reproduced at least thirteen copies of the relevant analysis with identical redactions—all in direct response to an explicit request from United to make a privilege determination—without ever even reviewing the language. That explanation, which is not supported by a declaration or any other actual evidence, is troubling and raises additional concerns about the government's production. And ruling in the government's favor on this issue would nullify an entire provision of the Protective Order the parties negotiated and agreed upon. United therefore respectfully requests that the Special Master order the government to reproduce all versions of Ms. Hornsby's analysis without any redactions to the analysis of the Medical Record Review Rule in section “6.B.” Alternatively, the Special Master should order the government to reproduce the relevant documents with redactions consistent with those made in 2022.

*5 We would like to bring to your attention certain potentially privileged documents it appears the government has inconsistently redacted. [Bates numbers of documents]. Please let us know if you assert privilege over these documents or portions thereof, and, if so [provide information required by protective order]. If you only assert privilege over portions of these documents, please provide a redacted version.

9. The Parties agree that disclosure need not be “inadvertent” as that term is used in Rule 502(b), but agree that all productions, designations, and requests for return of Protected Material will be made in good faith. Accordingly, the Producing Party shall exercise good faith to prevent the disclosure of Protected Material and shall not request the return of Protected Material it produced knowing it to be privileged. Nor shall the Producing Party request the return of Protected Material or assert privilege over Protected Material the Producing Party previously identified as not privileged. Moreover, the Producing Party shall not request the return of Protected Material the Producing Party knows the Receiving Party has referred to, quoted, cited, or relied upon, during the course of this Action or the Poehling Investigation without objection from the Producing Party. (emphasis added).

However, due to a mistake by the contractor, 14 versions of the memo were produced with incomplete redactions. In these 14 versions, only the first sentence of the disputed language was redacted, and not the second privileged sentence. To be clear, the production of the privileged material was a mistake and unknown to the United States in May 2022. The United States did not, and never has, determined that the unredacted line in the May 2022 production was not privileged.