Inadvertently Sending A Private Email Message by “Reply To All” (In re OptumRx)

By: Donald L Swanson

In an opinion dated November 14, 2023, the U.S. Sixth Circuit Court of Appeals rules in favor of an attorney who inadvertently sent a private-thoughts email by “Reply to all.”   

• The opinion is In re OptumRx, Inc., Case No.23-3882. 

Background

The opioid crisis in these United States has spawned a vast empire of litigation.  Most of the lawsuits are against manufacturers, distributors and retail pharmacies.

But there is another set of defendants: pharmacy benefit managers.  These are intermediaries between insurance and drug companies for negotiating rebates, processing claims, reviewing drug utilization, etc.

OptumRx, Inc., is a pharmacy benefit manager.  And it is a defendant in multiple opioid lawsuits managed by the U.S. District Court for the Northern District of Ohio (Case No. 1:17-md-2804).  

On January 11, 2018, the U.S. District Court appoints a Special Master in the OptumRx case, with the following duties:

1. to facilitate communications among the parties;
2. to assist with mediating disputes among the parties;.
3. to provide legal analysis of submissions by the parties;
4. to ensure coordination with related litigation and governmental action;
5. to assist with case management;
6. to interpret any agreements between the parties; and
7. to oversee implementation and compliance with the District Court’s orders.

“Reply to All” Email

All was well and good . . . until this happened:

• attorneys for the parties provide their status reports by email to multiple email addresses; and
• the Special Master, in an email response (inadvertently sent by “Reply to all”), shares private thoughts that take substantive positions and make value-judgment comments on a variety of important issues—including the following:
  • “I think we need 4 bellwethers, not 2 – it is too easy for Ds to buy off 2 Ps, avoiding any global resolution”; and
  • OptumRx’s goal “is to complicate and delay (including a request to do nothing and set a status 4 weeks hence).”

Upon realizing the “Reply to all” error, the Special Master promptly sends a follow-up email saying:

• “This email was meant to be to my own files, and not to counsel.  Please discard and disregard.  I apologize.”

Attorneys for OptumRx email back:

• declining to disregard the inadvertent “Reply to all” email; and
• alleging the email raises serious questions about the Special Master’s impartiality.

And they follow-up with a Motion asking the District Court to disqualify the Special Master.

District Court Denies Disqualification Motion

The District Court denies OptumRx’s Motion to disqualify (see Doc. 5217 Order).  Here’s its rationale.

–Highly Qualified & Not Biased

The District Court finds that the Special Master has:

• been approved by both the Plaintiffs and Defendants, since the beginning of these proceedings;
• performed incredible work over a long time, assisting the Court in managing what has been called the most complex litigation in history;
• been particularly valuable as a discovery and privilege special master and has been called upon to issue countless legal rulings; and
• avoided any prior hint, from any party, that the Special Master is biased or prejudiced against them.

–Thoughts and Impressions

Personal thoughts and mental impressions of attorneys and judges are sacrosanct.  Accordingly:

• for the judicial system to function, judges must view the arguments presented to them with an appropriate degree of skepticism;
• if judges were subject to accusations of bias and potential disqualification based solely on private, skeptical thoughts about a party’s position, there could be no judges;
• therefore, disqualification based on the appearance of partiality must be based on outward conduct, not private thoughts; and
• such law for judges applies equally to special masters, who serve in a quasi-judicial capacity.

–Privileged Deliberations

Here, OptumRx repeatedly and misleadingly attempts to convert the Special Master’s private thoughts into public comments. 

The Special Master’s emailed thoughts were mental impressions to which OptumRx should not have had access.  Those thoughts were not public comments—they were privileged deliberations.  

And the Special Master’s prompt action to correct the “Reply to all” error confirms the private-thoughts character of the comments.

–No Question of Impartiality

The District Court finds that no reasonable observer could question the Special Master’s impartiality.

The Special Master’s email comments are not a prejudgment of the merits of any claim and carry no hint of coercion.

Ultimately, the Special Master’s thoughts in the inadvertent email, when read objectively as a whole, demonstrate the Special Master’s even-handedness.

And it’s notable that OptumRx’s Motion to disqualify ignores the Special Master’s statements that favor their positions, like (i) “I have some sympathy for” OptumRx’s argument, and (ii) let OptumRx add third parties “as they wish.”

–No Viable Alternative

Finally, it is not clear what OptumRx hopes to gain through the disqualification motion.

Attempting to introduce a new special master would only complicate and delay these proceedings.

Sixth Circuit Affirms

Following its loss at the District Court, OptumRx files a Petition for Writ of Mandamus at the U.S. Sixth Circuit Court of Appeal, seeking disqualification of the Special Master.

But the Sixth Circuit denies OptumRx’s Petition and affirms the District Court’s disqualification denial.

The essence of the Sixth Circuit’s opinion is this: the Special Master’s email remarks “do not demonstrate bias or partiality.”

Conclusion

It’s nice to see that “gottcha” tactics do not work in the OptumRx case.

For those of us who experience an “operator error” problem on occasion, the result in this case is encouraging.

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