Anthem’s Scorched Earth Trial Strategy

Yesterday afternoon the Department of Justice and State Attorneys General responded to the Special Master’s recommendation that each side be allowed to take up to 275 hours of non-party deposition testimony. In the response, DOJ and State Attorneys General point out that the Anthem-Cigna merger trial has a very compressed discovery schedule that was set based on Anthem’s claims that it needed a speedy trial. The Special Master’s recommendation for a great many hours for depositions doesn’t add up with the tight schedule. The DOJ highlights that “Anthem apparently intends to notice a large number of short depositions in as many markets as possible,” call for fewer hours for depositions, and say that lowering the total number of hours could “incentivize Anthem to consider stipulations and other ways of streamlining the case.”

While Anthem claims it needs an expedited trial and a rapid decision in order to abide by its merger deadline with Cigna, it is also disputing virtually every claim and expanding the material that will be presented at trial. Anthem may be adopting a strategy of putting strain on DOJ’s resources and making it difficult to prepare and present its case in the allotted time. Anthem has a great number of attorneys and no lack of resources. The DOJ also bears the burden of proving its case. These factors mean that it will be easier for Anthem to handle any challenges that come from trying a challenging case tried on a compressed schedule.

If this is the case, Anthem is likely hoping that the increased difficulties will hurt the DOJ’s ability to put on its best case or that it will put pressure on the DOJ to accept a settlement. This is an important case that should be decided on the merits, not based on who has the most resources. Hopefully the Special Master will succeed in balancing the interests in this case in order to create a level playing field that allows each side to present its best case and not the case that time allows for.