Anthem Inc. and Cigna Corp. must discloseto federal antitrust enforcers letters from in-house lawyers inwhich the insurance companies accuse each other of breaking their$54 billion merger deal, a Washington judge ruled.

The judge, Amy Berman Jackson, agreed with the findings of theretired judge who’s overseeing discovery disputes in thegovernment’s blockbuster antitrust suit, filed in July. Lawyers forAnthem, which is based in Indianapolis, and Cigna, which is based in Bloomfield,Connecticut, had resisted revealing those in-house letters to theU.S. Justice Department.

Government lawyers had argued that the in-house letters would“reveal the current state of hostility between defendants” andilluminate challenges the companies face as they defend theirproposed merger. Attorneys for the insurance giants told RichardLevie, the retired judge, that “any disagreements between thein-house lawyers are irrelevant to the efficiencies that can beachieved from the proposed acquisition.”

Levie recommended on Oct. 6 that the government see thedocuments, most of which were written by Thomas Zielinski, in-housecounsel to Anthem, and by Nicole Jones, in-house counsel to Cigna.Other documents, Levie said, were written by outside counsel toeither Anthem or Cigna.

“Anthem’s arguments that this information is not relevantapparently are intended to suggest that the newly merged companywill be able to overcome or, perhaps, overrule, any disagreementsin order to obtain post-merger efficiencies,” Levie wrote. “Thatmay be the case. But to the extent that this is true, Anthem’sarguments at best show that the court should afford less weight toany evidence of pre-merger disagreements between the mergingparties.”

Anthem is represented by a team from White & Case and Cignais represented by Paul, Weiss, Rifkind, Wharton & Garrison.

Levie rejected arguments that the “joint defense” privilegeprotected the information from disclosure.

The “applicable joint defense agreements in this case shows thatthose agreements are specific and limited in scope to the instantmerger,” Levie wrote.

Levie said “the letters asserting breaches of the mergeragreement concern wholly different legal concerns, namely,allegations by each party that the other has failed to satisfy therequirements of the merger contract.”

Envisioning a possible breach-of-contract claim, Levie said“there is no conceivable manner in which the parties might beengaged in a joint defense with respect to any such action.

“To the contrary,” he wrote, “in that instance, the partieswould be direct adversaries rather than parties with a commoninterest.”

The trial is set to begin Nov. 21.

The merger-breach claims marked the latest evidence of tensionbetween Anthem and Cigna. Since taking over the case from anothertrial judge, Jackson has raised questions about the companies’struggle to get along.

Jackson said in August it was a “bizarre situation” to beaccommodating the scheduling demands for a deal that Cigna appearsto no longer desire. When Cigna recently asked for permission toobject to Anthem’s questions at trial, Jackson responded that shefound the request “completely extraordinary.”

“I've never seen it done even in a criminal trial with multipleco-defendants," Jackson said.

"It's nothing I've ever seen before. I have trouble evenwrapping my mind around it. I'm not going to tell you that it'sprohibited but I find it highly extraordinary," she added.