Aetna asks court to force CVS whistleblower to turn over documents in fraud case

Inserting itself into the middle of a $1 billion fraud lawsuit against CVS, Aetna asked a Pennsylvania court to force a former employee to turn over documents it claims are protected by attorney-client privilege.

In a court filing (PDF) last week, the insurer asked the U.S. District Court for the Eastern District of Pennsylvania to grant a protective order that would require former Aetna actuary Sarah Behnke and her attorney to return all records taken during her employment with Aetna “and destroy all copies.” Aetna says Behnke and her attorney possess documents protected under attorney-client privilege and the work-product doctrine.

Aetna said Behnke took “Aetna’s property for her and her counsel’s own use in pursuing a monetary recovery for themselves in this lawsuit.” Aetna’s initial request to file the motion under seal was dismissed by the district judge.

The insurer made opaque references to a “corporate investigation,” arguing that attorney-client privilege protects “confidential communications exchanged during the investigations." Aetna also requested that the court redact portions of the complaint that directly reference privileged materials.

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In a lawsuit filed in 2014 and unsealed in April, Behnke accused CVS of improperly reporting drug prices to Medicare, generating more than $1 billion in fraudulent claims.

The case was unsealed months after CVS announced it would acquire Aetna for $69 billion. Last month, Behnke’s attorney, Susan Schneider Thomas of Berger & Montague, told FierceHealthcare that Behnke was placed on administrative leave days after the case was made public and after she refused Aetna’s request to turn over documents related to the allegations.

While the filing is partially an attempt to protect company information, it’s hard to ignore the implications of the case on the looming deal.

“[Aetna] is trying to look out for the interests of what could be its future parent company given the pending merger between CVS and Aetna,” Matt Fisher, a partner at Mirick, O'Connell, DeMallie & Lougee in Worcester, Massachusetts, told FierceHealthcare. “I would imagine there are sensitivities there.”

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The court could rule one of three ways. It could grant Aetna’s motion in full, deny it, or craft its own decision that protects certain documents that meet the true definition of attorney-client privilege. But even that definition can become muddled.

“When these types of arguments are raised, the solution isn’t easy,” Fisher said, adding that it is likely a large scope of documents given Aetna’s high level of concern. “It’s very rare that everything you think is protected is actually protected.”

An Aetna spokesperson declined to comment.