In Re: Anthem, Inc. Data Breach Litigation
236 F. Supp. 3d 150
| D.D.C. | 2017Background
- Anthem suffered a major data breach (Dec 2014–Jan 2015) compromising ~80 million records, including federal employees enrolled through the Federal Employee Health Benefits Program.
- OPM’s Office of the Inspector General (OIG) had previously audited Anthem’s IT systems in 2013 and again after the breach in 2015; OPM’s contract authorizes such IT audits.
- Lead Plaintiffs in the consolidated MDL subpoenaed OPM for records related to the 2013 and 2015 audits; OPM produced some materials and withheld others asserting the deliberative process and law enforcement privileges.
- Withheld materials included audit workpapers (screenshots, sign‑in sheets, information requests), five meeting write‑ups (some containing facts, some containing auditors’ impressions), and a large set of internal e‑mails among OPM employees.
- The district court conducted in camera review and ruled that most withheld e‑mails and certain audit screenshots were protected by the deliberative process privilege; several meeting write‑ups and factual audit materials were not privileged or must be disclosed under the balancing of interests (and, in the court’s view, not shielded by the law enforcement privilege on balance).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether withheld materials are predecisional and deliberative under the deliberative process privilege | Materials are not predecisional because the 2013 Final Audit Report did not direct a policy decision or decisionmaker | Materials (workpapers, meeting write‑ups, e‑mails) preceded and contributed to OPM's audit decisions and contract modifications and are therefore predecisional and deliberative | Audit screenshots and all internal e‑mails are predecisional and deliberative; portions of three meeting write‑ups are deliberative; several documents (sign‑in sheets, certain memos, two write‑ups) are purely factual and not privileged |
| Whether factual material in privileged documents must be disclosed | Plaintiffs: factual material is separable and necessary for litigation | Government: factual material is intertwined and disclosure would chill deliberations | Court: factual material that is not inextricably intertwined with deliberative content must be disclosed (severable factual portions ordered produced) |
| Applicability of the law enforcement privilege to non‑deliberative audit materials | Plaintiffs: audits were routine and not part of a criminal investigation, so law enforcement privilege doesn't apply | Government: OIG audits further statutory law‑enforcement aims (fraud detection), so privilege applies to audit techniques/sources | Court assumed arguendo law enforcement privilege might apply but found the balance favored disclosure of the non‑deliberative, factual materials given completion of the audit, public Final Audit Report, and protective order in MDL |
| Whether Plaintiffs’ need outweighs governmental interest (privilege balancing) | Plaintiffs: materials relevant, not available elsewhere, vital to serious MDL litigation; protective order can mitigate risks | Government: disclosure would chill candid internal deliberations and harm auditing/contracting processes | Court: Plaintiffs did not meet burden to overcome deliberative privilege for deliberative materials (screenshots, internal e‑mails); but balancing favored disclosure of non‑deliberative factual materials under law enforcement analysis |
Key Cases Cited
- In re Sealed Case, 121 F.3d 729 (D.C. Cir.) (describing scope and qualified nature of deliberative process privilege)
- Judicial Watch, Inc. v. FDA, 449 F.3d 141 (D.C. Cir. 2006) (defining predecisional and deliberative materials)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (rationale for protecting internal agency deliberations)
- Tuite v. Henry, 98 F.3d 1411 (D.C. Cir. 1996) (government burden and law enforcement privilege principles for subpoenas)
- Hinckley v. United States, 140 F.3d 277 (D.C. Cir. 1998) (deliberative nature requires give‑and‑take of decisionmaking)
- In re Sealed Case, 856 F.2d 268 (D.C. Cir.) (procedural requirements for asserting the law enforcement privilege)