United States v. Abbott Laboratories

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, et al. ex rel. Case No.: 20cv286-W (MSB) Everest Principals, LLC, 12 ORDER DENYING DEFENDANTS’ Plaintiffs, 13 MOTION TO COMPEL PRODUCTION OF v. DISCLOSURE STATEMENT AND POST- 14 DISCLOSURE GOVERNMENT ABBOTT LABORATORIES, et al., 15 COMMUNICATIONS Defendants. [ECF NOS. 113 & 114] 16

17 18 This is a qui tam case, wherein Plaintiff-Relator, Everest Principals, LLC (“Relator”) 19 maintains causes of action against Defendants Abbott Laboratories, Abbott 20 Cardiovascular Systems, Inc., Abbott Vascular, Inc., and Abbott Laboratories, Inc. 21 (collectively “Abbott” or “Defendants”) on behalf of the United States of America 22 (“U.S.”) and several states for violations of the federal False Claims Act (“FCA”) and 23 analogous state laws. (See ECF No. 85 at 6.) Now pending before this Court is 24 Defendants’ “Motion to Compel Relator’s Disclosure Statement and Subsequent 25 Submissions/Communications.” (ECF No. 114.) Based on the parties’ joint request, both 26 Relator and Defendants submitted their respective briefing on this dispute on October 27 20, 2023. (ECF Nos. 112-14.) 2 Opposition thereto [ECF No. 113], and the authorities cited therein, the Court DENIES 3 Defendants’ Motion to Compel for the reasons described below. 4 I. RELEVANT BACKGROUND 5 The False Claims Act (“FCA”) encourages insiders to disclose fraud against the 6 government through a qui tam provision that permits private individuals (known as 7 “relators”) to bring civil actions on the government’s behalf and retain a portion of any 8 award. Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993, 995 (9th Cir. 2010). When 9 filing such a complaint, a relator must serve on the Government “[a] copy of the 10 complaint and written disclosure of substantially all material evidence and information 11 the person possesses.” 31 U.S.C. § 3730(b)(2). The purpose of this disclosure 12 requirement is to give the United States enough information to make a well-reasoned 13 decision whether to intervene or allow the relator to proceed alone with the action. 14 United States ex rel. Bagley v. TRW, Inc., 212 F.R.D. 554, 555 (C.D. Cal. 2003) (internal 15 citations omitted). 16 Relator is a limited liability company whose sole member, Lisa Knott,1 was 17 employed by Defendants as a Therapy Development Specialist in its Structural Heart 18 Division from August 2015 to April 2017. (See ECF No. 85 at 7; ECF No. 104 at 2.) 19 Pursuant to 31 U.S.C. §§ 3729, et seq., Relator filed its original Complaint under the FCA 20 under seal on February 14, 2020. (ECF No. 1.) The Relator summarized its allegations 21 therein as follows: “Defendants engaged in an unlawful, systematic and nationwide 22 scheme of providing illegal kickbacks to physicians and hospitals in the form of, inter 23 alia, patient referrals, honoraria for sham speaker programs and events, free lavish 24 meals, cocktail parties, and free patient marketing services to induce physicians and 25 hospitals to use Abbott’s MitraClip® device (“MC Device”) to certain cardiac patients 26 27 2 Statute (“AKS”)], and analogous state laws and statutes.” (Id. at 3.) Relator submitted a 3 copy of its Complaint and a “written disclosure of substantially all material evidence and 4 information the person possesses” (“Disclosure Statement”) to the Department of 5 Justice as required by the False Claims Act. (ECF No. 113 at 3; ECF No. 114-1 at 5); 31 6 U.S.C. § 3730(b)(2). The Disclosure Statement included an unspecified number of 7 attachments. (See ECF No. 113-2 at 4.) Relator additionally made subsequent periodic 8 communications and status updates to the Government, who remains the real party in 9 interest in this litigation. (ECF No. 113 at 3; ECF No. 114-1 at 5.) 10 The government entities declined to intervene, and the Court unsealed the 11 Complaint on March 25, 2021. (ECF Nos. 8, 9.) After three motions to dismiss on the 12 pleadings, (see ECF Nos. 30, 45, 59), discovery opened in this case on February 15, 2023. 13 (See ECF No. 69 at 3 (setting Rule 26(f) Conference deadline of February 15, 2023)); Fed. 14 R. Civ. P. 26(d)(1) (“A party may not seek discovery from any source before the parties 15 have conferred as required by Rule 26(f). . . .”). The Court held an Early Neutral 16 Evaluation and Case Management Conference on April 17, 2023 and issued a Scheduling 17 Order the following day. (See ECF Nos. 76, 77.) Relator filed its operative Third 18 Amended Complaint (“Operative Complaint”) on May 23, 2023, in which it added to its 19 summary that Defendants’ purported “nationwide scheme of kickbacks” also included 20 patient practice building and “rewards in the form of clinical trial opportunities.” (ECF 21 No. 85 at 6-7.) 22 On July 12, 2023, Defendants served Relator with their Requests for Production – 23 Set One (“RFP”). (ECF No. 114-2 at 2.) Relevant here, RFP No. 4 sought “[a]ll 24 communications between [Relator] and any government agency relating to Abbott or 25 this litigation.” (Id. at 2-3.) RFP No. 5 sought “[a]ll communications (excluding 26 privileged communications solely between you and your counsel of record in this action) 27 relating to any allegation that Abbott violated any law or to the claims or allegations of 2 protected by the attorney-client privilege, the common interest privilege, the joint 3 prosecution privilege, or which constitute attorney work product that are protected 4 from disclosure in discovery.” (ECF No. 114-4 at 3-4.) Relator indicated it did not have 5 any non-privileged documents responsive to RFP No. 4, and otherwise noted “that 6 documents will be withheld on the basis of its objections.” (Id. at 4-5.) 7 On August 14, 2023, Defendants served interrogatories on Relator. (ECF No. 114- 8 5.) One interrogatory asked Relator to “[i]dentify all Government Agencies and any 9 other governmental bodies with which You communicated relating to Abbott, this case, 10 or any other litigation filed or contemplated by You against Abbott.” (ECF No. 114-5 at 11 6.) After raising overbreadth and privilege objections, Relator listed eleven such 12 government entities and indicated it would produce responsive, non-privileged 13 documents. (ECF No. 114-6 at 3-4.) 14 After meeting and conferring with one another and engaging in an informal 15 discovery conference with the Court, Defendants now move to compel production of 16 Relator’s Disclosure Statement and subsequent communications/submissions to the 17 government (together, “Government Communications”) as responsive to the RFPs 18 discussed above. (ECF No. 114; see also ECF Nos. 105, 106, 112.) Pursuant to a briefing 19 schedule requested by the parties, Defendants filed their Motion to Compel the same 20 day that Relator filed its Opposition thereto, on October 20, 2023. (ECF Nos. 113, 114.) 21 II. DISCUSSION 22 Defendants claim that Relator’s Government Communications are relevant and 23 critical to Abbott’s defense and should be produced. (ECF No. 114-1 at 7.) Relator 24 argues that the Government Communications are completely protected under the work 25 product and common interest doctrines. (ECF No. 113 at 2.) Defendants assert that 26 they have demonstrated substantial need and undue hardship sufficient to justify the 27 disclosure of fact work product, a conclusion Relator contests. (Compare ECF No. 114-1 2 why they have a substantial need for the documents or why they cannot obtain the 3 substantial equivalent of the documents by other means”) (quoting United States ex rel. 4 Burroughs v. DeNardi Corp., 167 F.R.D. 680, 684 (S.D. Cal. 1996)).) The parties also 5 disagree about whether the Disclosure Statement and the identification of which 6 documents counsel selected to include as exhibits are opinion or fact work product, 7 with opinion work product carrying even greater protection. (Compare ECF No. 113 at 8 4-5 (arguing that counsel’s selection of which facts and exhibits are material renders 9 them opinion work product) with ECF No. 114-1 at 12 (arguing any redactions should be 10 minimal because of “disclosure statements’ factual nature”).) 11 Based on the arguments summarized above, Defendants ask this Court to do what 12 it asserts “courts commonly” do: review the Government Communications in camera, 13 order them produced with only minimal redactions, and order Relator to produce and 14 identify each document that was included as an exhibit to its Disclosure Statement or 15 subsequent submissions. (ECF No. 114-1 at 6, 9.) Relator states it has already produced 16 all underlying documents in response to other RFPs, and otherwise opposes each of 17 these requests. (ECF No. 113 at 4.) 18 A. Legal Standard 19 The Federal Rules of Civil Procedure2 permit parties to obtain discovery of any 20 nonprivileged matter relevant to the parties claims and defenses and proportional to 21 the needs of the case. Fed. R. Civ. P. 26(b)(1); see also, e.g., United States ex rel. Jacobs 22 v. CDS, P.A., No. 4:14-cv-00301-BLW, 2016 WL 4146077, at *2 (D. Idaho Aug. 3, 2016) 23 (“The allegations of the complaint logically shape the scope of discovery. . . .”). Factors 24 used to determine proportionality under this standard are the importance of the issues 25 at stake, the amount in controversy, the parties’ access to relevant information, the 26 27 2 the burden outweighs the likely benefit. Fed. R. Civ. P. 26(b)(1). District courts have 3 broad discretion to grant or deny discovery. United States ex rel. Fiederer v. Healing 4 Hearts Home Care, Inc., No. 2:13-cv-1848-APG-VCF, 2014 WL 4666531, at *3 (D. Nev. 5 Sept. 18, 2014); Fed. R. Civ. P. 26(b)(2)(C)(i); Hallett v. Morgan, 296 F.3d 732, 751 (9th 6 Cir. 2002) (“[B]road discretion is vested in the trial court to permit or deny discovery, 7 and its decision to deny discovery will not be disturbed except upon the clearest 8 showing that denial of discovery results in actual and substantial prejudice to the 9 complaining litigant.”) (quoting Goehring v. Brophy, 94 F.3d 1294, 1305 (9th Cir. 1996)). 10 Under Rule 37, a party may move the Court to compel disclosure of certain 11 discovery. Fed. R. Civ. P. 37(a)(1). The party seeking discovery must demonstrate that 12 the request satisfies Rule 26’s relevance requirement. See, e.g., Soto v. City of Concord, 13 162 F.R.D. 603, 610 (N.D. Cal. 1995). The party resisting discovery “has the burden of 14 clarifying, explaining, and supporting its objections.” DIRECTV, Inc. v. Trone, 209 F.R.D. 15 455, 458 (C.D. Cal. 2002) (citing, inter alia, Blankenship v. Hearst Corp., 519 F.2d 418, 16 429 (9th Cir. 1975)). 17 The FCA is silent on the issue of whether the written disclosures it requires are 18 discoverable. Bagley, 212 F.R.D. at 558; see also 31 U.S.C. 3730(b)(2). For this reason, 19 Courts generally apply the federal work product rules. See, e.g., United States ex rel. 20 Yannacopoulos v. General Dynamics, 231 F.R.D. 378, 381 (N.D. Ill. 2005); United States 21 ex rel. Fisher v. JPMorgan Chase Bank N.A., Civil Action No. 4:16-CV-00395, 2020 WL 22 3265060, at *4 (E.D. Tex. June 17, 2020). Rule 26(b)(3) codifies the attorney work 23 product doctrine in federal court and generally protects documents and tangible things 24 “prepared in anticipation of litigation or for trial by or for another party or its 25 representative” from discovery. Fed. R. Civ. P. 26(b)(3). 26 However, Rule 26 provides an exception and permits discovery where a party 27 seeking information shows “substantial need for the materials to prepare its case” and 2 impressions, conclusions, opinions, or legal theories of a party’s attorney.” Id. at 3 26(b)(3)(B). This distinction grants this latter, “opinion” work product nearly absolute 4 protection, while a party who demonstrates substantial need and undue hardship may 5 discover “fact” work product. Bagley, 212 F.R.D. at 559. 6 B. Relator’s Disclosure Statement and Subsequent Communications with the 7 Government are Protected as Work Product, and Even Factual Portions Thereof 8 Are Only Discoverable Upon a Showing of Substantial Need and Undue 9 Hardship. 10 Relator claims that the Government Communications at-issue are protected as 11 work product, noting that “the majority of courts have found that the written disclosure 12 statement provided in compliance with the FCA falls under the work-product doctrine as 13 a document prepared in anticipation of litigation, or have applied the principles of 14 ordinary work product when analyzing whether the disclosure statement is 15 discoverable.” (ECF No. 113 at 4 (quoting Bingham v. Baycare Health System, Case No: 16 8:14-cv-73-T-23JSS, 2016 WL 1546504, at *4 (M.D. Fla. Apr. 15, 2016) (collecting 17 cases)).) Though Defendants do not explicitly contend that the work product doctrine 18 does not apply to written disclosures, they also do not concede Relator’s position. (See 19 ECF No. 114-1.) 20 This Court agrees with most courts that written disclosures and subsequent 21 communications between the Relator about the litigation should be analyzed under the 22 work product doctrine. See, e.g., United States ex rel. Brown v. Celgene Corporation, 23 Case No. CV 10-3165, 2015 WL 12731923, *8 (C.D. Cal. July 24, 2015) (“Because 24 Relator’s disclosure statement was prepared in anticipation of trial, the Court agrees 25 with the weight of authority that it qualifies as work product.”); Bingham, 2016 WL 26 1546504, at *4 (collecting cases); United States v. California Institute of Tech., Case No.: 27 CV 18-5964 CAS (RAOx), 2020 WL 13547790, at * (C.D. Cal. Nov. 18, 2020) (“Although 2 statements are, at a minimum, fact work product.”). By statutory requirement, the 3 Disclosure Statement was prepared in anticipation of litigation, either by Relator or its 4 representative. Therefore it, and the fact of which exhibits Relator included as material 5 evidence, are protected as at least fact work product. See United States ex rel. Calilung 6 v. Ormat Industries, Ltd., 3:14-cv-00325-RCJ-VPC, 2015 WL 13709969, at *4 (D. Nev. 7 Dec. 23, 2015) (“[T]he court observes the culling of certain documents to attach to the 8 disclosure statements—like the selection of facts discussed therein—was done in 9 anticipation of litigation, and likely reflects some analysis and strategizing by relator’s 10 counsel.”). Even when the Government does not intervene, “the relator is proceeding 11 as the Government’s assignee.” United States ex rel. Burns v. Family Practice Associates 12 of San Diego, 162 F.R.D. 624, 626 (S.D. Cal. 1995). Consequently, the subsequent 13 communications between Relator and the Government while litigation is ongoing are 14 likewise protected by the work product doctrine. See, e.g., United States ex rel. Branch 15 Consultants, LLC v. Allstate Ins. Co. (“Branch II”), CIVIL ACTION NO: 06-4091-SSV-SS, 16 2010 WL 11627441, at *5 (E.D. La. May 12, 2010) (evaluating relator’s communications 17 with the Government other than the disclosure statement under the work product 18 doctrine). 19 District courts have been divided about “whether disclosure statements are 20 entirely fact work product, entirely opinion work product, or a combination of the two.” 21 Calilung, 2015 WL 13709969, at *2; see also, e.g., California Institute of Tech., 2020 WL 22 13547790, at * 3 (“There is a split among the courts as to the degree of work product 23 protection afforded to disclosure statements made to the government pursuant to the 24 FCA.”). While some have favored a bright line rule that the disclosure statements are 25 entirely opinion work product because the preparer was required to assess materiality 26 and determine how most persuasively to present the facts to the government, others 27 have ordered them produced entirely, or with materials determined to be opinion work 2 necessary when the party seeking disclosure has shown substantial need and undue 3 hardship sufficient to justify the production of fact work product. See, e.g., United 4 States ex rel. Hunt v. Merck-Medco Managed Care, LLC, No. 00-CV-737, 2004 WL 5 868271, at *3 (E.D. Pa. Apr. 21, 2004) (finding defendant had failed to show substantial 6 need and undue hardship, and therefore denying motion to compel disclosure and for in 7 camera review). Because, as discussed below, this Court finds Defendants have failed to 8 make such a showing, it is unnecessary to parse opinion from fact work product here. 9 Therefore, the Court declines to enter the debate about the extent to which disclosure 10 statements are fact versus opinion work product or to review the Government 11 Communications in camera. 12 C. Defendants Fail to Show Substantial Need and Undue Hardship 13 Defendants’ sole argument in support of its substantial need for the Government 14 Communications is that they need Relator’s disclosures to determine whether Relator 15 can claim to be an original source of the allegations in the Operative Complaint. (ECF 16 No. 114-1 at 5-6, 10-11.) Relator contends this argument fails because Abbott has failed 17 to identify any public disclosure that would implicate the public disclosure bar. (ECF No. 18 113 at 7.) 19 Defendants have not identified a public disclosure that would give rise to a public 20 disclosure defense and create a substantial need for the discovery on Relator’s status as 21 an original source of allegations in the complaint. The FCA provides that courts should 22 dismiss a suit brought by a private person “if substantially the same allegations or 23 transactions as alleged in the action or claim were publicly disclosed” in one of three 24 contexts: “(i) in a Federal criminal, civil, or administrative hearing in which the 25 Government or is agent is a party; (ii) in a congressional, Government Accountability 26 Office, or other Federal report, hearing, audit, or investigation; or (iii) from the news 27 media.” 31 U.S.C. § 3730(e)(4)(A). Relevant here, this public disclosure bar can be 2 information underlying the allegations to the government prior to public disclosure, or 3 (2) provided the government with independent and material information additional to 4 the public disclosures prior to filing the lawsuit. 31 U.S.C. § 3730(e)(4)(A) & (B). Courts 5 determining whether a public disclosure requires dismissal engage in a two-step inquiry. 6 United States ex rel. Calva v. Impac Secured Assets Corp., Case No. SACV 16-1983 7 JVS(JCGx), 2018 WL 6016152, at *3 (C.D. Cal. June 12, 2018). The first question is 8 whether there was “‘public disclosure’ of the allegations or transactions underlying the 9 qui tam suit through one of the enumerated sources.” Id. (citing 31 U.S.C. § 10 3730(e)(4)(A)). Only if there has been a public disclosure must the court then determine 11 whether the relator is an original source. Id. 12 No party has cited any Ninth Circuit authority regarding whether or when the 13 public disclosure defense demonstrates substantial need sufficient to overcome work 14 product protections. (See ECF Nos. 113, 114.) Instead, the parties rely on district court 15 cases from across the country that have been divided in their consideration of the issue. 16 (Id.) Some courts have concluded “it [would] be difficult, if not impossible, for 17 Defendant to determine whether any of the facts upon which Relator relied at the time 18 she brought this action were already public knowledge without knowing what those 19 specific facts were, or to determine if Defendant was the ‘original source’ of any facts 20 that had been publicly disclosed.” Brown, 2015 WL 12731923, at *8; see also, e.g., 21 United States ex rel. Cericola v. Ben Franklin Bank, No. 99 C 6311, 2003 WL 22071484, at 22 *3 (N.D. Ill. Sept. 4, 2003) (finding relator’s desire “to compare the facts revealed by the 23 Relator as the original source and facts that were available to the public via Defendants’ 24 Public Housing and Urban Development Disclosures” constituted a substantial need 25 where the relator alleged she was an original source). Indeed, it appears that the first 26 published district court opinions to address this issue reached similar conclusions. See 27 United States ex rel. O’Keefe v. McDonnell Douglas Corp., 918 F. Supp. 1338, 1346 (E.D. 2 produce the written disclosure on similar grounds”) (collecting published cases). 3 However, other courts have concluded that if such a vague assertion of a possible 4 public disclosure defense were considered substantial need, it would turn the exception 5 into the rule and destroy any claim of work product protection in the context of written 6 disclosures. Calilung, 2015 WL 13709969, at *3. Instead, many courts consider the 7 specific facts of the case to ascertain whether, under the circumstances, the public 8 disclosure defense creates a substantial need. See, e.g., Branch II, 2010 WL 11627441, 9 at *4 (E.D. La. May 12, 2010) (finding that because at trial “Branch must demonstrate 10 that when it filed suit it was an original source of the information on which the 11 allegations in the first amended complaint are based,” the defendants had substantial 12 need for the written disclosures3); United States ex rel. Ferris v. Afognak, No. 3:15-cv- 13 0150-HRH, 2018 WL 4168988, at *4 (D. Ala. Aug. 30, 2018) (explaining how the relator’s 14 alleged violations overlapping with those that had been previously raised by a different 15 relator in a separate lawsuit made it necessary for the defendants to ascertain whether 16 the relator was the original source of those claims); United States ex rel. Carter v. 17 Halliburton (“Carter II”), 266 F.R.D. 130, 134 (E.D. Va. 2010) (finding magistrate judge 18 erred by concluding “a potential ‘original source’ argument” gave rise to substantial 19 need where the defendants failed to cite any previous public disclosure of the relator’s 20 allegations and the relator testified at deposition about who he worked with and who 21 he told about the allegations). 22 This Court agrees with other courts that require defendants seeking discovery of 23 the disclosure statement based on a public disclosure defense to demonstrate a specific, 24

25 26 3 Though the discussion in this Branch II discovery order does not detail the factual history of the case, an earlier order resolving a motion to dismiss concluded that the defendants’ allegations were based 27 upon public disclosures and would be barred unless Branch could show it was the original source, 2 indication that the same information cannot be obtained through other means. Such an 3 approach strikes the appropriate balance between protecting a party’s labors in 4 anticipation of trial, encouraging relator’s full disclosure to the government, and 5 ensuring the opposing party’s right to discovery of critical, otherwise unavailable 6 information. 7 In the present case, Defendants’ Answer generically asserts that “Relator’s claims 8 are barred, in whole or in part, based on the public disclosure of substantially the same 9 allegations or transactions, in accordance with 31 U.S.C. § 3730(e)(4)(A), and Relator 10 Everest Principals, LLC is not an original source of the information.” (ECF No. 89 at 84.) 11 In the present motion, Defendants indicate Relator’s reliance on public information, 12 including Relator’s use of public payment data and the public statements of Defendants’ 13 executives support their need for discovery into whether Relator is an original source. 14 (ECF No. 114-1 at 8-9.) They claim that Relater’s Disclosure Statement will show that it 15 was not the original source of this data. (Id. at 9.) But it is clear in this case that Relator 16 relied on publicly available information—the complaint is explicit in that regard. (See 17 ECF No. 85 at 110 n.18, 118-19 & n.24; ECF No. 85-1; ECF No. 85-2.) Defendants do not 18 argue that either payment data or the quoted public statements of executives qualify as 19 “public disclosures” under 31 U.S.C. § 3730(e)(4)(A). Even if they qualified as such, 20 because Relator explicitly relied on the publicly available information, it cannot argue it 21 was an original source of that information under 31 U.S.C. § 3730(e)(4)(B)(i), because it 22 could not have voluntarily shared the same information with the government “prior to 23 [the] public disclosure.” Therefore, as to the publicly available information referenced 24 by Defendants, there is no evident dispute that would warrant discovery. Nor do 25 Defendants need the disclosure statement to identify the allegations to compare against 26 potential public disclosures, because the issue is whether the allegations in “the action 27 or claim” were publicly disclosed in one of the enumerated ways. (See 31 U.S.C. § 2 illuminates the factual bases” of Relator’s claims, and it “could reveal inconsistencies 3 between Relator’s representations to the government and its litigation positions.” (ECF 4 No. 114-1 at 8 n.3 (citing Branch II, 2010 WL 11627441, at *4 and United States ex rel. 5 Carter v. Halliburton Co. (“Carter I”), Civil Action No. 1:08cv01162 (JCC/JFA), 2010 WL 6 11561318, at * 2 (E.D. Va. Feb. 5, 2010).) In the first place, the Court notes that these 7 are part of a relevance argument in Defendants’ brief, not a substantial need argument. 8 But to the extent Defendant may have asserted these arguments in support of 9 Defendants’ claim of substantial need, the Court finds them unpersuasive. 10 “One of the primary purposes of the work product doctrine is to prevent one 11 party exploiting the other party's efforts to prepare for litigation.” Holmgren v. State 12 Farm Mut. Auto. Ins. Co., 976 F.2d 573, 576 (9th Cir. 1992) (citing Admiral Ins. Co. v. 13 United States Dist. Court, 881 F.2d 1486, 1494 (9th Cir. 1989)). In every case, a 14 document prepared by a plaintiff, carefully assembling all material information and 15 evidence in support of its claims, would plainly assist the defendant. But the work 16 product doctrine does not permit one party to exploit the other’s work this way. 17 Therefore, “[c]ourts have found relevant the extent to which a relator has been 18 cooperative in discovery in determining whether defendants have met the requisite 19 showing of substantial need and undue hardship.” California Institute of Tech., 2020 WL 20 13547790 (comparing cases) while a qui tam defendant may demonstrate substantial 21 need for a disclosure statement where “the plaintiff has provided little in the way of 22 discovery which would reveal the factual basis for the allegations in the complaint,” and 23 the trial date is quickly approaching, (see United States ex rel. Stone v. Rockwell Intern. 24 Corp., 144 F.R.D. 396, 401 (D. Colo. 1992)), this justification would only apply in limited 25 circumstances. See, e.g., Hunt, 2004 WL 868271, at *3 (noting an absence of the 26 minimal discovery responses and imminent trial found in Stone, and that “perhaps most 27 importantly” the defendants had yet to depose relators and finding “[i]n such 2 (“Homeward”), CASE NO. 4:12-CV-461, 2015 WL 4610284, at *4 (E.D. Tex. July 31, 2015) 3 (rejecting defendant’s argument that it had a substantial need for the disclosure 4 statement to conduct discovery where relators had produced all of the factual 5 documents that accompanied the disclosure statements, identified witnesses named 6 therein, and relators were deposed about their allegations). 7 At this point in the litigation, Defendants have not shown that Relator has failed 8 to provide the factual basis of its claims through discovery. Relator has produced all 9 documents it relied on to generate the Disclosure Statement. (ECF No. 113 at 6.) 10 Though discovery has been open in this case since at least February 15, 2023, 11 Defendants have not shown that Relator has failed to provide meaningful and forthright 12 responses to discovery directed at understanding and assessing Relator’s case or 13 refused to explain the basis of its claims through interrogatory responses or deposition 14 testimony. Defendants only argument that Relator has failed to cooperate in discovery 15 is Relator’s alleged refusal to identify the documents that were attached as Exhibits to 16 the Disclosure Statement “when it communicated with government agencies.” (ECF No. 17 114-1 at 11.) Relator confirms that while it has provided all the documents it relied 18 upon to produce the Disclosure Statement, it has refused to identify which of those 19 were attached as exhibits because that would divulge work product in the selection of 20 material information. (ECF No. 113 at 5.) As the Court discussed, infra, it agrees with 21 Relator on this issue. And Defendants have not demonstrated that Relator refuses to 22 identify the dates of its Government Communications. Defendants’ Interrogatory 23 Number 4 did not ask for the dates of the Government Communications, only for 24 Relator to identify the government entities with which it communicated about relevant 25 topics. (ECF No. 114-6 at 3.) Relator provided a list of those governmental entities. (Id.) 26 Under these circumstances. Defendants have not shown that production of the 27 Government Communications would uniquely satisfy a substantial need. 1 Regarding Defendants’ potential impeachment argument, the district court 2 || reversed the only supportive case cited by Defendants on reconsideration, noting that 3 || “‘the mere surmise that production might reveal impeaching matter [is] not sufficient to 4 || justify production’ and the seeking ‘party must present more than speculative or 5 ||conclusory statements.’” Carter Il, 266 F.R.D. at 133 (quoting Duck v. Warren, 160 F.R.D. 6 82 (E.D. Va. Jan. 31, 1995)). The district judge also explained the magistrate judge 7 ||had stated during the hearing that “‘mere credibility or impeachment’ was insufficient 8 || to pierce the factual work product privilege.” Id. (citing hearing transcript). This Court is 9 inclined to agree and finds that a hypothetical opportunity for impeachment does not 10 support a finding of substantial need. 11 lll. CONCLUSION 12 For the reasons discussed in this Order, the Court finds Defendants have failed to 13 |bhow the substantial need and undue hardship necessary to overcome the work product 14 |protections that apply to the Disclosure Statement and subsequent Government 15 |Communications. The Court therefore DENIES Defendants’ motion in all respects. 16 IT IS SO ORDERED. 17 || Dated: November 20, 2023 _ = i _ 2 FF 19 Honorable Michael S. Berg United States Magistrate Judge 20 21 22 23 24 25 26 27 28