United States ex rel. Pogue v. Diabetes Treatment Centers of America, Inc.

235 F.R.D. 521, 2006 U.S. Dist. LEXIS 35975, 2006 WL 1515914
CourtDistrict Court, District of Columbia
DecidedJune 2, 2006
DocketCivil Action No. 99-3298 (RCL); Part of Misc. No. 01-50 (RCL)
StatusPublished
Cited by36 cases

This text of 235 F.R.D. 521 (United States ex rel. Pogue v. Diabetes Treatment Centers of America, Inc.) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 235 F.R.D. 521, 2006 U.S. Dist. LEXIS 35975, 2006 WL 1515914 (D.D.C. 2006).

Opinion

MEMORANDUM OPINION

LAMBERTH, District Judge.

This matter comes before the Court on several discovery disputes among the parties. First, defendant Diabetes Treatment Centers of America, Inc. (“DTCA”) filed, on November 1, 2005, a motion [1105] and an accompanying memorandum of law to compel Relator to provide full and complete answers to its Second Set of Interrogatories. Relator filed an opposition [1111] on November 14, 2005, and DTCA filed a reply [1118] on December 1, 2005. Relator thereafter filed, on December 16, 2005, a supplemental response and opposition [1124] to DTCA’s Second Set of Interrogatories, along with an unopposed motion requesting leave to do so.

Second, on November 21, 2005, DTCA filed a motion [84] and an accompanying memorandum of law to compel the United States Department of Health and Human Services (“HHS”) to comply with subpoena for documents and testimony. The United States filed its opposition [94] on December 20, 2005, after filing an unopposed motion [93, 1128] for leave to file an opposition in excess of ten pages and a motion [1117] for leave to late file. DTCA filed its reply [1134] on January 9, 2006, after filing a motion [1132] for extension of time to file its reply, and a motion [1133] for leave to file an opposition in excess of ten pages.

Third, several defendant physicians (the “Atlanta Physicians”) jointly filed, on November 21, 2005, a motion [82] to compel Relator to answer interrogatories and respond to requests for production of documents. Relator sought and was granted an extension of time for filing his opposition [95], which he subsequently filed on December 29, 2005. Defendants the Atlanta Physicians filed a reply [96] on January 13,2006.

Upon a thorough review of each party’s filings, the applicable law and the entire record herein, this Court has determined that the motions [93, 1117, 1124, 1128,1132, 1133] for leave to file motions in excess of ten pages, for leave to late file, and for leave to file a supplemental opposition shall be GRANTED; DTCA’s motion [1105] to compel Relator to provide full and complete an[523]*523swers to its Second Set of Interrogatories shall be GRANTED in part and DENIED in part; DTCA’s motion [84] to compel HHS to comply with subpoena for documents and testimony shall be DENIED; defendants the Atlanta Physicians’ motion [82] to compel Relator to answer interrogatories and respond to requests for production of documents shall be DENIED.

I. BACKGROUND

This qui tam action has been pending for many years. Currently before the Court are two discovery disputes between the parties. Defendant DTCA, a healthcare corporation charged with violating laws governing billing for Medicare procedures, complains that Relator has improperly objected to DTCA’s second set of interrogatories. It also alleges that HHS’ refusal to provide documents and testimony is improper. Relator and HHS argue that their respective responses to the discovery requests were appropriate.

II. DISCUSSION

A. DTCA’s Motion [1105] to Compel Relator to Answer Interrogatories

DTCA served its second set of interrogatories on Relator after the parties agreed that defendant would be permitted ten additional interrogatories. These ten interrogatories sought information about the following: DTCA employees who are suspected of having paid kickbacks, DTCA’s treatment of those employees, the physicians who were suspected of receiving kickbacks, the allegation that HHS would have denied the claims had it known of the kickbacks and related actions, the claims that were submitted, and the basis for the Relator’s contention that DTCA knowingly violated the False Claims Act. Relator served his responses to the interrogatories on April 11, 2005. DTCA, finding the responses to be inadequate, subsequently wrote Relator three letters in an attempt to resolve the dispute over the interrogatories. Relator did not respond, prompting DTCA to file the instant motion to compel.

After the motion, opposition and reply were filed, Relator filed and served on DTCA a set of supplemental responses which provide further answers to the interrogatories. Since DTCA has not indicated to the Court that it seeks to withdraw its motion to compel in light of the additional responses, this Court shall consider the merits of the motion.

1. General Objections

Relator objects to the interrogatories on several grounds. Generally, he objects that all of the interrogatories are overly broad “contention interrogatories,” and that compliance would impose an unreasonable burden. (Relator’s Opp’n [1111] 3-7.) DTCA contends that the interrogatories are of reasonable breadth and do not impose an undue burden on Relator. (DTCA’s Mem. Supp. [1106] 2-3.) Relator’s “boilerplate objections” that the interrogatories were overly broad and unduly burdensome, DTCA argues, fail to justify his refusal to answer them. {Id.)

As to the general objection on the basis of privilege, this Court notes that Relator has foreclosed any challenge to the interrogatories on this ground because of his failure to file a privilege log as required by Fed.R.Civ.P. 26(b)(5), which requires a description of the withheld information or documents that would enable other parties to assess whether the privilege applies.1 See, e.g., Lohrenz v. Donnelly, 187 F.R.D. 1, 6-7 (D.D.C.1999) (Lamberth, J.) (denying plaintiffs assertion of privilege because of her failure to provide a privilege log as required by the Federal Rules of Civil Procedure). Accordingly, Relator’s blanket objections on the basis of privilege shall be rejected. As to the general objection on the grounds of undue burden, this Court notes the well-documented rule that a party objecting to an interrogatory on this basis must explain in detail how the interrogatory is burdensome. [524]*524See, e.g., Alexander v. FBI, 192 F.R.D. 50, 53 (D.D.C.2000) (Lamberth, J.) (citing Lohrenz, 187 F.R.D. at 4). Where Relator fails to address specifically how compliance with the interrogatory would burden him, his objections on the ground of undue burden shall be rejected.

The specific objections shall be considered next. In addition to his general objections, Relator objects to each interrogatory on various grounds, including privilege, timeliness, compound form, and as exceeding the total number of allowed interrogatories. DTCA disputes each objection. This Court finds that the interrogatories are deficient in form but not substance; accordingly, the motion to compel shall be denied, but defendant will not be prevented from seeking much of the same information in interrogatories subdivided by this Court. This Court shall discuss each interrogatory in turn.

2. Interrogatory No. 26

Interrogatory No. 26 requests that Relator identify each DTCA medical director that he contends received illegal kickbacks or who was prohibited from referring to DTCA-affil-iated hospitals, and requests that Relator “state all facts and identify all documents supporting” his contentions. Relator contends that No.

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Bluebook (online)
235 F.R.D. 521, 2006 U.S. Dist. LEXIS 35975, 2006 WL 1515914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-pogue-v-diabetes-treatment-centers-of-america-inc-dcd-2006.