Optum Vs Smith Jan 31 Hearing
Optum Vs Smith Jan 31 Hearing
Optum Vs Smith Jan 31 Hearing
)
OPTUM, INC. and )
OPTUM SERVICES, INC., )
)
Plaintiff, )
) Civil Action
v. ) No. 19-10101-MLW
)
DAVID WILLIAM SMITH, )
)
Defendant. )
)
MOTION HEARING
APPEARANCES:
2
Counsel on behalf of Plaintiffs:
3 Russell Beck
Stephen D. Riden
4 Hannah Tso Joseph
Lauren Schaefer
5 Beck Reed Riden LLP
155 Federal Street, Suite 1302
6 Boston, MA 02110
617-500-8670
7 rbeck@beckreed.com
8
Counsel on behalf of Defendant:
9 Brian A. Mead
Michael T. Sheehan
10 McDermott Will & Emery LLP
444 West Lake Street
11 Suite 4000
Chicago, IL 60606
12 bmead@mwe.com
msheeehan@mwe.com
13
John F. Welsh, III
14 Bello Welsh LLP
125 Summer Street
15 Suite 1200
Boston, MA 02110
16 617-247-4100
jwelsh@bellowelsh.com
17
18
19
20
21
22
23
24
25
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2 INDEX
3 WITNESS PAGE
4
MICHAEL WEISSEL
5
Direct Examination By Mr. Riden 40
6 Cross-Examination By Mr. Sheehan 64
7 JOHN STODDARD
10 STEVEN WOLIN
14
15
16
17
18
19
20
21
22
23
24
25
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1 P R O C E E D I N G S
7 Services, Inc.
18 the defendant.
1 but he can stay here for the moment. Are the other witnesses
2 present?
5 as needed.
8 the courtroom.
16 proceedings until the motion to stay that had been made orally
25 that's what I've been working on this morning and the reason
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9 speak to it.
18 the last bit of research to get that to Your Honor so you can
19 have it.
25 in seeing the pertinent cases. I've read more and have some
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2 Sheehan.
10 compel arbitration --
14 were seeking.
19 first instance. And that's where the court disagreed, and the
8 page 3, the court notes, "In this case the pertinent provision
3 arbitration?
18 merits, but I've thought about this further. I've got a better
21 did rule, the court did deny our motion to compel in part by
25 instance.
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3 proceedings because the very issue that is now before the First
7 automatic.
21 be stayed so the First Circuit can decide the issue that should
2 me?
4 THE COURT: What did you cite? I think you cited the
7 only have one other district court case, but I think we cited
9 to the court.
17 those cites.
4 case.
6 the -- there are cases that I can cite for you that have
11 yesterday.
5 begun is the issue for the First Circuit that we're appealing.
10 case.
14 it.
16 from Mr. Smith yesterday when I told you I didn't know what I
17 would do and then asked, you know, should we pause and deal
2 compare what he did with Optum with what he does for ABC. And
6 to have this hanging over him. You told me yesterday that was
14 issues as much as Your Honor has. But that's not the issue.
8 cases, but you're supposed to get nine candidates from the AAA
11 Honor. And if they had honored their own contract, I'd submit,
12 Your Honor, the chances are we'd have been before an arbitrator
4 Go ahead.
16 with the preliminary -- the TRO hearing now, get that resolved
17 before Your Honor enters any order that would divest the court
20 notice of appeal.
1 announced but has not been entered. Your order has not yet
24 under the contract doesn't apply. And they tried to tell Your
4 one. This is the second one. At each turn, they have extended
11 that we have the ability now to finish up the work that we were
12 doing, get --
15 after this is over I can go back to the office and read the
16 cases and make sure that the brief is done. We can have it for
25 testified.
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8 THE COURT: I don't need to see it. But what are some
11 far, Your Honor, and it's now been filed in the form that it's
12 in. It's not complete, but it's what we were able to put
18 number of decisions.
6 terms for bond or other terms that secure the opposing party's
11 primarily citing for that piece, Your Honor. Then we get into
23 at this point is, there are a number of things that are still
10 example, Mr. Smith not work for ABC or communicate with ABC?
20 context that we're in right now has not been resolved by the
22 on that.
24 up.
2 has not yet been addressed by the First Circuit. I don't mean
4 around that.
20 the cases that the defendant has cited, in Judge Keaton's case
24 THE COURT: Why don't you keep going. Are those the
1 MR. BECK: No. Those are on the issue of the stay not
4 339 at 341, and that cites -- I believe that cites, but if not
24 restraining order.
4 court still has that power. The court has the power to issue
8 the irreparable harm. I think the court still has the power
10 arbitration.
11 THE COURT: And the case that you say most directly
14 else?
16 Brooks being the First Circuit and Kosilek being your decision.
19 four because I think all four speak to the issue of the timing
24 day.
6 You know what cases they're going to cite. It's now 11:00.
8 things and come back and give you a schedule. But as I said,
13 says --
17 me to look at?
10 already this morning, but it's only going to work if you speak
21 judgment that has been appealed and not stayed, and," then the
2 Honor, but the notion that the status quo to preserve the
5 stronger the longer Mr. Smith works, or he's going to get paid
16 power. And we have all the witnesses here. We've brought them
22 I urge you to hear from Mr. Smith. And when I offered him the
24 brief this issue or argue this issue, that's exactly the way I
2 some of these cases and think about it. But I'm ordering that
5 afternoon because I could see this was going to take some time,
8 that you talk and see if you can come to some agreement as to
9 how to proceed.
14 necessary to decide the TRO, and, when I can, I'll decide it.
17 at that point, the parties agree to it. And if I deny the TRO,
20 I always take very seriously, even when the parties don't raise
21 it. And you've got -- maybe the issue will go to the Supreme
23 But, you know, this may take some time to resolve. So if you
2 recess.
16 going to order.
1 principles of law.
8 other things.
19 maximum of 28 days.
23 you on the schedule. I've now given you some further thoughts,
10 of the witnesses who have flown in from across the country and
11 been here for two days, ours at least, and given the procedural
17 the background to make the decision on both the TRO and what
21 be gone from Chicago the past few days. I think that this is
24 this is the first issue for the court to decide. And if the
11 lawyers flying in from Louisiana and New York, and it's going
14 week, realistically.
19 the hearing, can we have Mr. Smith not work during the interim
20 period and not communicate with them during the interim period?
8 Our look at the law and our look at things that we need to look
10 that with the jurisdiction moving to the First Circuit and with
11 the issue being what it is, that it's on appeal, the court
16 brief.
1 have avoided. And as the clock ticks, still it's within their
3 could have done a month ago and every day in between and every
18 irreparable harm. The cases are the legion that it is, and
20 in his contract.
25 on, for example, October 29, if that is the concern, there are
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4 issue before the court. The only issue before the court, as
6 is their fear of tomorrow, the next day, the next day something
14 appeal and before the court had moved to stay is will the delay
6 that I'd hear all of their testimony this morning, that I'd
13 our case, Your Honor, and I'm also interested in that. But the
19 invoke the --
23 process.
1 month.
13 witnesses.
19 that I'll have the authority under the All Writs Act at least
5 also it will set the stage for you to understand the Optum
12 MR. BECK: We'd like to set the stage with the context
16 Mr. Weissel?
20 their case in the order they want to put it on. I would just
21 note Mr. Weissel was not one of the affiants. It's supposed to
25 competitor?
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3 Mr. Weissel has come here. He's far more senior than
7 Optum.
14 about just a very little bit -- he can put the Fact Book into
17 believe, the best witness for this testimony. And he can also
1 A. Newton, Massachusetts.
3 A. At Optum.
6 and product.
8 A. Three years for this title. I've been at Optum for six
9 years.
11 top of Optum?
17 12:40.
22 Mr. Wolin and Mr. Seddon, who are other witnesses that have
1 product team.
3 A. No.
5 A. No.
7 A. Yes.
13 services company.
17 county as well.
25 individuals across the United States who are covered under this
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1 entity.
11 health unit that helps people with mental health issues. And
13 save and pay for care. Those are the big ones off the top of
14 my head.
20 care centers. And we will send nurses into people's homes for
24 That's really our technology and data services that sit inside
6 its customers?
12 needs.
4 A. Roughly 150,000.
7 in that range.
9 A. Around 300.
11 network?
14 pharmacies, I believe.
25 there is opportunity.
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3 side and understand how are they doing, how are they
6 Q. And how about on the product side where Smith also worked?
23 product responsibility.
25 A. Elena Avramov, she left -- I don't know the exact date she
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10 period of time?
11 A. She was.
19 know, that compete with us. So in her case there was no issue
20 related to a noncompete.
22 allowed to work.
23 A. Correct.
24 Q. And you haven't sued her or even sent her a demand letter?
25 A. Nothing.
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3 JP Morgan?
14 the marketplace.
17 manner, please.
22 products.
24 A. Yes.
6 scenario where Mr. Wolin would have been unable to perform his
7 duties for some period of time or for some reason, Dave was on
11 A. Absolutely not.
13 A. No.
15 A. No.
17 A. I did.
23 to be given to him that was going to lay out, you know, the
2 want a letter from our chief legal officer kind of coming over
3 the transom to him without him knowing, I called him and had a
10 to a competitor?
14 the product team is somewhat similar sized. There are very few
18 able to and the way that a lot of people on our strategy team
2 well.
3 Q. Did you have any involvement with this document that has
4 been discussed in this case called the Fact Book? Are you
6 A. I am, yes.
11 right direction, how does the enterprise fit together, all the
13 strategy project.
17 and say 2030 in the industry. Everything from how fast are
22 to all the facts of that project. The Fact Book itself was
25 that brought all those trends into which ones we thought were
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1 most important, and also included after each set of trends what
4 Q. Confidential document?
5 A. Yes.
6 Q. Highly confidential?
7 A. Yes.
20 are most important for us to build our business on, and how we
22 came with a set of speaking notes as well for anybody who might
24 Q. Confidential document?
25 A. Yes.
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1 Q. Highly confidential?
2 A. Yes.
11 And certainly after there had been some discussion about what
20 and there were just a few things from really more like 2017
23 A. I did not.
25 A. No.
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15 that we have.
21 aren't.
2 A. Yes.
3 Q. Who is ABC?
23 the folks who founded it. Because, you know, they themselves
3 once it has that, it will take them to the rest of the market.
5 other than what's written in the press. I just know that every
9 be impactful on us.
11 competitor?
12 A. I do.
16 Optum?
17 A. I do.
18 Q. Why?
20 inclination to come to. They have come out with the pure
22 market.
1 the same way that we are. And they intend to develop sets of
6 they would take those things and, you know, take them to
9 with which we compete would say the same thing. Every Blue
15 property that they would have created from new products and
3 it's about.
4 Q. What is it about?
7 think about the competition and who are our biggest competitors
11 Q. Dave Smith?
14 not all consistent. And each business unit also has a bit of
15 its own list. So this was an attempt on our part to try to say
16 can we pull the list together, can we talk about who we think
17 are the most important ones, who are the ones the Optum
18 executive team should pay attention to, who are the ones we
23 A. I do.
25 understanding?
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2 care space that we could look at and very easily point to,
3 Express Scripts or somebody and say, Boy, you know, it's very
10 care.
17 founder of ABC?
25 somebody like Amazon would be doing and think that they will be
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4 same light.
6 company as a disrupter?
20 some way based in how they might use their client relationships
24 topics. We'll get to what Mr. Smith can do under the terms of
2 also a competitor?
6 with ours.
12 partners.
15 true with many health insurers who have portfolios of their own
1 and services that will also compete with us. So that makes us
2 wary about, you know, about how we would work with them for the
3 same reason.
6 care?
7 A. Absolutely not.
16 Q. What is an example?
23 parts of the health insurer, maybe not exactly the pure pop
1 opportunity.
11 agreements?
14 noncompete.
18 A. Probably not.
22 A. Correct.
1 Mr. Weissel.
4 you just said what this was all about was really where
6 A. It's about the work that he'd be doing. So it's not about
9 A. Elena.
10 Q. Could you --
11 A. Avramov.
12 Q. She left. She was part of the same team as Mr. Smith?
14 but yes.
16 documents?
17 A. Fact Book.
20 Q. Not me.
22 Q. Okay. And when she left -- first of all, did you direct
4 thing to do.
6 A. Yeah.
7 Q. And did you direct that Mr. Smith's emails and print usage
8 be investigated?
9 A. I did.
10 Q. Okay. Did you do the same for Ms. -- I'm sorry, her name?
11 A. Elena?
12 Q. Yeah.
13 A. I did not.
22 A. We don't know.
23 Q. And we don't know how many times she may have printed out
25 A. We have no idea.
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1 Q. In fact, did you check the print usage? Did you have your
4 A. No.
6 Mr. Smith, they also from time to time printed out those
8 A. I do not know.
9 Q. Did you check to see whether or not she had -- Elena had
11 A. I did not.
12 Q. -- to the cloud?
13 A. I did not.
19 A. Yeah.
1 That's not true in the case where Elena went. But it's
2 possible that there are health systems out that that have
8 A. Absolutely not.
9 Q. And I think your testimony, sir, was that you saw that the
12 A. That's correct.
20 A. Coopertition.
25 Q. But today, today, wouldn't you agree that Mr. Smith, who
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1 has worked for the company, probably has more insight into what
6 that, do you --
9 A. Well --
18 read.
19 Q. When you hire your employees, sir, you hire from within
21 A. Certainly.
23 right?
24 A. Yes.
1 right?
5 their restrictions might have been or how we use them, but I'm
10 Q. Aetna?
16 strategy consulting.
18 out a little bit. The ones that come from strategy consultants
20 A. Of course.
22 A. Of course.
23 Q. And did you ask them to sit out a year or six months or so
4 or what things they could or couldn't work on. And I've had
13 A. No.
14 Q. Why not?
23 those instances is there might be areas that you would not have
3 A. I did.
5 A. I am, yeah.
6 Q. You joined Oliver Wyman in 1996 and you were there all the
7 way to 2013?
8 A. That's correct.
11 Oliver Wyman.
12 Q. Well, you and Mr. Wolin also went to Duke grad school?
13 A. We did. Although --
14 Q. Old classmates?
17 Oliver Wyman. I was going to ask you about how you ended up
19 A. I did.
20 Q. Now, when you were at Oliver Wyman, did you have any
22 Optum?
23 A. Did he?
24 Q. Did you?
3 A. That's correct.
8 restriction was.
10 cut to the chase, every single person I hired from Oliver Wyman
11 had been gone from Oliver Wyman, had left and gone to business
13 But there were many conversations with Oliver Wyman, and they
14 had no objections.
16 information from when you were working at Oliver Wyman and you
25 For any company that I had worked for in that time period
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3 some kind of another. The work that I was doing at Optum was
13 A. Coopertition.
14 Q. So when you left from Oliver Wyman and you came to Optum,
18 Q. Does that term fit there, too, with the customer -- the
20 do --
24 you were at Oliver Wyman, and now you moved over to Optum, I
25 think your testimony was you didn't see a problem because you
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1 were now working for a customer and the customer was Optum
8 Q. Sir, you are the one that directed the lawsuit. You
11 A. That's correct.
16 first time anyone has heard about Mr. Smith's office being
17 searched from a witness is when you took the stand right here
18 today?
19 A. Okay.
21 before, and you walked in there on probably the day, the same
4 company?
5 A. Yes.
8 in his office, and I know that no one was using his office.
14 might have been that Steve Wolin actually put the formal
23 the forensic material that showed what had been printed and
24 what emails had been sent and some of the activity that had
4 have easily thrown them away. I don't know. I'm not accusing
6 was there and what he left and maybe what he looked at before
7 he left.
9 from the stand, but you understand the papers that the lawyers
11 A. I understand.
12 Q. How about in the phone call to Mr. Smith that day, did you
14 A. I did not.
17 A. Yes.
19 A. Yeah.
21 A. Well --
23 A. So in conversations --
25 A. I did not.
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3 did you use that term that you used here in court today?
7 Q. Right.
12 was ABC.
14 A. I do.
15 Q. -- from ABC?
16 A. Sure.
17 Q. And sir, in your discussion with ABC, I'm just asking, had
19 A. No. That's a term that we've been using for a few years
20 at least.
4 you may have said to the group there, including David Smith,
7 Q. You don't dispute that. And you may have even said, I
12 panicked, were very scared about this company taking over the
16 ours as well.
24 we were in in September.
1 Mr. Weissel.
19 sequestration order.
22 this case. You know, right now this is primarily with regard
5 witness?
19 no later than 4:00 today. And then I'll give you a briefing
7 Mr. Smith from doing many things for ABC or others. He just
9 that was the essence of it. So I think -- and maybe this would
10 come from Mr. Wolin, Mr. Stoddard, you know, what's in greater
17 originally as our -- not only our witness but also our designee
5 Monday?
17 as Optum.
23 THE COURT: Let me ask you this. How much time do you
1 in 30 minutes.
6 A. I am.
8 A. They do.
9 Q. And when I say "ABC," do you know what I'm referring to?
10 A. I do.
11 Q. What is ABC?
15 A. It does not.
23 Q. We're talking about the same entity, TCORP, ABC and the
25 A. That's correct.
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2 A. Yes.
6 A. 2005 to 2009.
12 solutions?
17 those customers.
19 international?
22 for Optum.
13 correct.
14 Q. How big was Optum when you were there, when it was
15 created?
22 but there were probably 5,000 people at the time in Optum and
24 Q. 5,005 billion?
2 A. Significantly, I believe.
10 Q. When you left Optum did you go to work -- who did you go
11 work for?
24 consider it competitive.
4 confidentiality requirements.
7 at Optum?
15 please.
18 A. No.
22 new CEO start to form a team. So I came, I met with our new
3 A. That's correct.
5 to ABC?
6 A. No.
7 Q. Like a noncompete?
8 A. No.
10 A. In September 2018.
14 A. That's correct.
23 come in overnight.
5 with our chief executive officer and our executive team around
17 companies.
25 Honor, those are the ones who have insurance and their
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2 referring to.
5 at this point.
10 A. Erica Davila.
14 entities.
20 spending a lot of money. And what they hear and what we hear
22 experience. They're not getting the care they need, and the
25 asked to look at the full spectrum of what are the options, how
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1 can we crack the code, who can we have partner with, and how
6 health care experience, the health care system and the health
7 mean?
18 derive what we think the expected outcomes would be. And then
21 actually take a scientific method and try it and see what the
2 the test.
9 A. That's a no.
13 test.
15 services?
22 A. No.
24 A. Yes.
1 A. Yes.
3 A. Yes.
5 A. Yes.
8 A. Yes.
10 A. All three.
18 the point.
20 A. No.
21 Q. Why not?
1 products.
10 products?
13 management?
16 strategy?
18 strategy.
20 management strategy?
10 Q. Can you commit that ABC won't compete with Optum during
11 2019?
19 A. I did.
21 A. Yes.
5 Q. What else did you tell him? What are some of the details
13 all this money and their experience is still not great for
19 A. In that interview?
20 Q. Yes, sir.
21 A. No.
23 hired?
24 A. No.
25 Q. Did you meet with him again at any point before he was
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1 actually hired?
2 A. No.
3 Q. Did he tell you what he was doing for Optum during that
4 interview?
6 his work.
7 Q. Other than that one interview that you had with him -- was
8 that in person?
9 A. I'm sorry?
11 A. Yes, it was.
15 to him.
24 test or deploy.
3 in person, did you discuss with him the health care market
4 generally?
5 A. Broadly, yes.
6 Q. Did you talk at all about the direction the market would
7 be taking?
8 A. I asked him his -- you know, how does he think about the
19 A. I don't recall.
22 A. Yes.
23 Q. Okay. Other than Mr. Smith, where did the other people on
1 Q. What companies?
3 Q. I apologize. Continue.
4 A. They come from, like Mr. Smith came from Bain and has
7 MIT, Sloan MBAs and then they have consulting experience like
8 Mr. Smith, who was at Bain. There's one from Boston Consulting
10 Q. Well, Mr. Smith was also from Optum. Are there any other
13 Q. Who is that?
14 A. Caitlin Fleming.
16 other than you, Caitlin Fleming and Mr. Smith, who have worked
17 at Optum before?
18 A. No.
22 Optum?
23 A. Yes.
1 his -- and we've had him sign two of these, that we have no
10 information?
11 A. Yes.
16 might overlap with what he has done at Optum and share that
19 A. Which list?
3 Q. What else?
4 A. Specialty networks.
5 Q. What else?
11 Q. What else?
14 a moment?
17 health management"?
20 mean to you?
7 It's such a broad term, Your Honor, that there's overlap with
12 THE COURT: And how does what he does for ABC or will
13 do after he's worked more than two weeks, if he's permitted to,
14 how does what he does now or will do in the near future, you
23 trying to parse words. It's just that's such a broad term that
1 health.
9 with you to make sure that, you know, we're not -- we have no
13 help the population we're serving and manage their health and
11 BY MR. RIDEN:
16 Q. Sure. Those are some areas that ABC has decided on its
25 system.
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2 your system?
3 A. Not complete.
5 of work that ABC does that we're talking about; is that right?
6 A. Yes.
8 A. Correct.
14 Q. Why not?
20 site.
2 ABC?
6 Optum?
7 A. No.
9 employees?
10 A. No.
14 employees?
19 discovery with regard to the TRO. You've had far more than the
7 A. Yes.
10 A. It just was.
13 Stoddard.
18 founders, right?
21 Q. You testified that you have zero interest and you, meaning
5 not getting the value that they want out of that investment. I
6 can understand why, when their customers create our entity and
13 answer to the court. And that is, do you believe Mr. Smith can
16 A. I do.
20 thing.
25 where possible.
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7 Starbucks on what his motivation is, what his mission is. Was
15 vet complexity? All that said, this is the kind of person who
17 challenge.
19 fact that we're here in this courtroom, has the company taken
20 further measures to make sure that Mr. Smith would not use or
2 what we know about Optum, we're not going to have you work on
4 we're not aware of that you did work on, because we don't know
8 protocol?
11 Honor?
15 THE COURT: I've got just a couple, and then you can
21 quick.
22 THE COURT: And have you ever heard from Mr. Smith or
18 to ABC?
15 order. Here. Now Mr. Beck will have to respond to this. The
17 position on that?
5 Your Honor.
10 well. Both are inside counsel, and this is one where we would
13 should step out, and that means that the people remaining in
14 the room can't tell anybody not in the room what was said while
16 So my next question --
18 only issue with excluding Ms. Short is that she is part of the
20 tension --
22 company?
3 MR. SHEEHAN: And Ms. Davila plays that same role, but
5 matter.
6 THE COURT: I'm going to leave them out for now, but I
9 resolution, but just leave them out for now until we see what
13 question is.
16 range of --
2 ABC has not designed any products yet, you could possibly do
5 say, in 2019?
11 just come in place less than a month ago. So when I tell you
14 company.
21 workers.
1 states, deploy it, and we'll see if that works. Right? That
4 example.
8 from the spend that we have and how should we analyze that data
12 what good looks like in health care. We've asked Dave to focus
13 on that area.
14 What the answer is, that I can't tell you. That team,
15 he's not the only one doing the analysis, but that's an area we
18 doctors to do good care and to spend more time, not less time.
20 patients.
2 potential partners.
9 achieved them. But if we can figure out which ones work, let's
16 with.
20 product, how does the pharmacy work, for example, what are the
3 like CVS and Express Scripts, are among the three largest
14 confidential information?
19 Q. I heard about five areas, and you said that Mr. Smith is
21 is he working on?
23 Q. Data, right.
25 data around cost and quality of care so that we can help then
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2 doctors that are going to help them get better outcomes on the
4 Q. Is that the only one of those five areas that he's working
5 on?
10 we need. And the second is what's the analysis that you would
18 A. No.
19 Q. And are there plans to put him -- in 2019, are there plans
5 information.
11 if there's an objection.
17 for these companies? I'm just trying to figure out what detail
21 work, what data sources are there, where does that data come
23 health plan that we have, from the pharmacy, from the doctor,
24 from the consumer. It's doing the strategy work around what
25 are the data elements that we would want, how would we use
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1 them, what's the use case, how do we get that data, and how do
2 we act on it.
5 are the receipts that we have for where that money goes, and
10 wider universe?
13 vendors.
15 companies?
19 BY MR. RIDEN:
3 then figure out, Boy, this doctor is getting the same outcomes
5 going to a doctor that costs much more, why is that, with less
10 questions?
13 is complete. But I'm ordering that you stay here because I'm
19 called the sequestration order? You can't say what you were
6 How much time did you hope to have with Mr. Wolin?
5 the CEO.
8 Optum.
11 mid-2017.
13 A. I have not.
3 management?
4 A. Correct, yeah.
23 Q. Nick?
24 A. Seddon.
11 those products, the full strategy around how those products are
20 market?
13 thing?
14 A. Correct.
23 people would take care of more the work side of things, how to
5 noncompete agreement?
9 work with?
16 A. Correct.
19 A. No.
22 A. Correct.
25 agreement?
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3 period of time?
4 A. Yes.
12 competitiveness.
20 came from.
1 programs?
2 A. He did.
4 strategy?
5 A. He did.
6 Q. Was there something unique about the fact that Mr. Smith
7 had roles in both the strategy and product side? Was he fairly
10 was designated to have that role. There were folks that worked
14 A. She was.
21 after that we had prioritized and the moves that we had made to
4 competitors.
7 strategy?
10 target, what places Optum may or may not be targeting, and then
17 counteraction to that.
5 are the right ways to try to outreach to patients, what are the
10 departure.
13 Mr. Smith was doing. Now, in your affidavit it says one person
14 came to you. And that might have been my mistake. How many
1 was a concerned not only that he was asking for the information
3 the team that he was going to the most junior members on the
5 Q. Have you ever had that experience before where not one but
7 A. No.
11 bulk of that lunch talking about the commentary and how to have
15 since we were near the end of the year and we were right around
19 so it never happened.
20 Q. When Mr. Smith told you he was leaving Optum, what did he
1 believe. When Mr. Smith -- did Mr. Smith talk to you about his
2 noncompete agreement?
3 A. He did.
5 not enforceable?
15 A. Yes, or that he --
21 that right?
22 A. That's correct.
2 Honor.
6 A. Good afternoon.
8 A. I do.
10 A. I did.
12 A. That's correct.
14 A. Correct.
18 A. Well Talk.
19 Q. And in her position at Well Talk, what did she do; what
23 did work some strategy for them. And she also had, as I
3 A. It is a competitor, yes.
5 health management?
8 health management.
11 A. Yeah.
13 A. No.
15 A. No.
17 A. Correct.
20 A. No.
25 at this point.
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2 sit-down with her and have her sign off on any documents that
6 put her on projects that made sense, given what her background
7 was.
8 Q. And with that, you felt comfortable that she would be able
11 A. Yes.
12 Q. Fair statement?
13 A. Yeah.
18 A. That's correct.
1 affidavit about the conversation you had with Mr. Smith when
2 you were telling him it's time to leave, his last day. And
3 your testimony was, "I told Mr. Smith I was uncomfortable with
6 have an issue with his noncompete and equity grants under the
8 A. Correct.
10 spoken with a lawyer and did not think that his noncompete
12 A. Yeah.
14 conversation?
15 A. That's correct.
16 Q. And that was at the time you were able to sit down and
19 A. Correct.
20 Q. Any reason why you didn't elaborate on that like you did
25 A. Correct.
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1 Q. Important meeting?
4 December 4.
7 was confusing.
12 identified came to you, and two days later, December 6, you and
13 other senior leaders and others on the team and Mr. Smith met
14 in Minnesota, correct?
16 Q. Why didn't you then and there, if you had concerns about
17 Mr. Smith seeking out this information, why didn't you then and
18 there, before the meeting got started, pull him aside and talk
19 to him?
21 it before we had any action. And number two, you know, I think
24 their performance.
6 issue?
13 no reason to have.
14 Q. When you say a "a pattern of behavior," this was the first
15 and only instance this was ever raised to you, wasn't it, sir?
17 Q. Okay. And when you excused Mr. Smith from the office and
19 to continue to work with the company for the rest of the year,
20 right?
23 Q. I'm saying before you came and gave him that information,
2 think about what would be an appropriate end date for him and
3 thrown out the option that it would be at the end of the year.
4 Q. Okay. Then you came back and said, Well, no, it's going
6 A. That's correct.
7 Q. Did you then circle back to the office and search the
10 and then I joined him a few days later and did the same.
17 Q. Mr. Wolin, what was the name of that employee from Well
18 Talk?
22 A. Not that I'm aware of, and like every employee that we
1 Q. Standardized process?
2 A. It is.
15 that.
4 was resigning and going to ABC, the joint venture, there's your
5 opportunity. Did you ask him why were you having conversations
8 Q. And then when you came back and circled back to say I know
10 end of the year, but now it's changed, we're putting you on
3 those services.
5 questions to counsel?
10 order? You can't discuss the case or what you were asked or
18 correct?
24 about?
5 printed out the OES deck on maybe December 11. He said he had
15 and then only gives us a report for this case on the last three
16 months, and it's redacted and it's incomplete. And even the
17 thing that Your Honor was focused on yesterday about the timing
19 from the person who pushes the button to then the printing
1 helpful.
6 really matter.
8 Mr. Andrews?
13 questions I'm going to ask you, we've got to figure out what to
14 do from here.
16 all the evidence that I would have heard on the motion for
18 know, do you want to spend tonight briefing the stay issues and
21 you the answer now. I'll give you a chance to talk to your
25 decide it.
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4 get to arbitration.
8 for --
12 days, and then there can't be more than 28 days unless you
13 agree to it. But, you know, having heard Mr. Weissel and
15 successful. But right now, Optum knows a lot more about ABC
19 that.
3 it, we'll figure out what they can hear. Court is in recess.
6 witness?
9 request for Mr. Andrews so that we could use that time, and
10 counsel agrees with this, for Your Honor to get together with
11 Mr. Weissel and Mr. Stoddard. I think it's a better use of our
12 time.
20 sense. And you don't have to -- all right. I'm going to talk,
25 think you need to answer it right now, but these two things may
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4 might just say, if it's necessary, Judge, decide the motion for
17 Court is recess.
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