LUSBY v. ROLLS-ROYCE CORPORATION
Filing
259
ORDER granting 243 Motion to Compel. Supplementation of answers required by this Order should be completed within fifteen (15) days of the date of this Order. Signed by Magistrate Judge William G. Hussmann, Jr on 9/20/2011. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
UNITED STATES OF AMERICA, ex rel.
CURTIS J. LUSBY,
Plaintiff,
v.
ROLLS-ROYCE CORPORATION,
Defendant.
)
)
)
)
)
)
)
)
)
)
1:03-cv-680-SEB-WGH
ENTRY ON ROLLS-ROYCE’S MOTION TO COMPEL RELATOR
TO ANSWER CONTENTION INTERROGATORY NOS. 9 AND 10
AND TO ENFORCE THE COURT’S JUNE 14, 20011 ORDER
I. Introduction
This matter is before the court on Rolls-Royce’s Motion to Compel Relator
to Answer Contention Interrogatory Nos. 9 and 10 and to Enforce the Court’s
June 14, 2011 Order (“Defendant’s Motion to Compel”) filed August 9, 2011.
(Docket Nos. 243-45). Relator filed his Response on August 23, 2011. (Docket
No. 249). Defendant filed a Reply Brief on August 29, 2011. (Docket No. 251).
II. Background
This is a qui tam suit in which Relator, Curtis Lusby, claims that
Defendant knowingly presented, or caused to be presented, to an officer or
employee of the United States Government false or fraudulent claims for payment
or approval in violation of 31 U.S.C. § 3729. Defendant served Relator
with its Third Set of Interrogatories, which included Interrogatory Nos. 9 and 10,
seeking “the factual basis for Relator’s assertions that Rolls-Royce submitted
false claims to the Government.” (Brief in Support of Defendants’ Motion to
Compel at 1). Defendant contends that Relator’s responses to these discovery
requests are inadequate. In an attempt to resolve the parties’ discovery dispute,
they engaged in informal discussions, and there was eventually a conference with
this Magistrate Judge in which the parties made an attempt to resolve this
discovery dispute as required by Local Rule 37.1. On June 14, 2011, this
Magistrate Judge issued an Order concerning numerous discovery disputes, but
noted that he
was not able to resolve issues arising out of answers to certain
contention interrogatories. The Magistrate Judge did advise that
specific answers to such interrogatories are generally required.
However, parties are not generally required to provide Bates Stamp
numbers for particular pieces of evidence which support the answer.
To the extent that the Plaintiff alleges that particular pieces of
evidence were falsely presented for payment, those items should be
identified by Bates Stamp numbers.
(Docket No. 224 at 3). After the conference with the Magistrate Judge, Relator
served Defendant with Amended Answers to Interrogatory Nos. 9 and 10, which
Defendant alleges were inadequate. Defendant then filed the Motion to Compel at
issue here seeking: (1) that Relator answer Interrogatory No. 9 by identifying all
false claims presented by Defendant and by explaining why they are false claims
and how Defendant knew they were false claims; and (2) that Relator answer
Interrogatory No. 10 by identifying every nonconforming part.
-2-
III. Analysis
Rule 26(b)(1) of the Federal Rules of Civil Procedure explains: “Unless
otherwise limited by court order, the scope of discovery is as follows: Parties may
obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense . . . .” Pursuant to Rule 33 of the Federal Rules of Civil
Procedure, one form of discovery that a party may seek can be through
interrogatories served on an opposing party. “An interrogatory is not
objectionable merely because it asks for an opinion or contention that relates to
fact or the application of law to fact, but the court may order that the
interrogatory need not be answered until designated discovery is complete, or
until a pretrial conference or some other time.” FED. R. CIV. P. 33(a)(2).
As a means of enforcement of these rules, Rule 37 permits a party seeking
the discovery to move the court to compel a response from the party who has
failed to respond to such discovery requests. Furthermore, “an evasive or
incomplete disclosure, answer, or response is to be treated as a failure to
disclose, answer, or respond.” FED. R. CIV. P. 37(a)(4).
In this case, what Defendant alleges that it is seeking is a response to
contention interrogatories. Defendant’s Third Set of Interrogatories includes the
following two relevant contention interrogatories:
Interrogatory No. 9:
Provide a complete description of every alleged claim, record,
statement, representation, act or omission that you contend
constitutes a violation of the False Claims Act by describing, for each
such alleged violation, your complete factual basis for believing that
-3-
the claim, record, statement, representation, act or omission violated
the False Claims Act; identifying the date of each such alleged
violation; identifying each fact and document relevant to each such
alleged violation; and identifying each fact and document that you
contend demonstrates that Rolls- Royce had the requisite intent, as
defined in the False Claims Act at 31 U.S.C. § 3729(b), at the time
that the alleged claim, record, statement or representation was made
or the alleged act or omission occurred.
Interrogatory No. 10:
Provide a complete description of the parts or products affected
by each alleged violation identified in your response to Interrogatory
No. 9, including by:
• Separately identifying every affected part or product by its
part or product number and when it was manufactured;
• Identifying for each part and product the alleged
nonconformity relating to the part or product;
• Stating how the alleged nonconformity in the part or product
resulted from one or more of the specific alleged violation(s)
identified in Interrogatory No. 9;
• Identifying the contract that the part or product was sold or
provided under;
• Identifying the date on which the part or product was sold or
provided to the Government, or at the Government’s direction,
and each DD-250 and each invoice that accompanied each
such sale;
• Identifying the date that the Government paid for the part or
product and how much;
• Identifying the date on which the alleged false claim, record,
statement, representation, act or omission occurred;
• Identifying each person who has knowledge of the alleged
violation, including who in the Government received the alleged
false claim, representation, certification, record, statement, or
document; and
• Identifying each fact and document purportedly
demonstrating the alleged false claim, representation,
certification, record, statement, or document was material to
the Government’s decision to pay.
(Defendant’s Brief in Support of Motion to Compel at Ex. 1).
-4-
“Opinion and contention interrogatories are used routinely.” FED. R. CIV. P.
33 Advisory Committee’s Notes (2007 Amendment). The Seventh Circuit permits
the use of contention interrogatories to “smoke out” what exactly a plaintiff is
claiming or stands to recover. See Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d
536, 541 (7th Cir. 2006). “The basic premise of a contention interrogatory is to
require a party to commit to a position and to give support for that position.”
BASF Catalysts LLC v. Aristo, Inc., 2009 WL 187808 at *2 (N.D.Ind., 2009).
However, judicial economy and fairness dictates that parties should not be
compelled to prematurely take a position, which would force an artificial
narrowing of the issues, instead of an informed paring down. Ziemack v. Centel
Corp., 1995 WL 729295 at *2 n.3 (N.D.Ill., 1995). Furthermore, while contention
interrogatories should not seek pure legal conclusions, they may be used to ferret
out a party’s legal theories. Tragoszanos v. City of Algoma, 2011 WL 2650852 at
*1 (E.D.Wis., 2011).
A. Interrogatory No. 9
Defendant, in its Reply Brief, now concedes that Relator has provided a list
of the particular claims it alleges to be false. These claims are found in the “new
version” of Exhibit A to Relator’s Answers to Defendant’s Third Set of
Interrogatories. However, Defendant now additionally seeks an order from this
Magistrate Judge to “preclude Relator from alleging that Rolls-Royce made any
false claims other than those specifically identified by Bates number in Exhibit
A.” (Reply Brief at 4). Pursuant to Docket No. 234, discovery is to be completed
-5-
by September 1, 2011. Given that deadline, any formal supplementation of
answers to interrogatories which are mandated by information obtained from
other sources, such as depositions or subpoenas, must be done shortly after
September 1. If any other claims not encompassed within Exhibit A exist, they
must be identified by specific reference to Bates-stamped documents within
fifteen (15) days of the date of this Order.
Furthermore, Defendant seeks an order instructing Relator to explain why
a particular claim is false and how Defendant knew each claim was false at the
time it was made. Relator argues that it has, in fact, explained why the claims
were false and how Defendant knew of their falsity. Specifically, Relator asserts
that ISO 9000 is the quality assurance standard that Defendant has indicated
that it adheres to on “each and every certificate of conformance accompanying
shipments and invoices associated with contracts F34601-95-G-0012,
F34601-98-G-0011, F34601-01-D-0155.” (Relator Curtis Lusby’s Opposition to
Defendant’s Motion to Compel at 6-7). Relator explains that the language from
the certificates of conformance was included in the Answers to Defendant’s Third
Set of Interrogatories. Relator further states:
The objective evidence cited demonstrates that RR’s manufacturing
and inspection processes do not comply, that its management was
aware of the shortfalls, and that same management took ineffective
or no action to correct the problems or prevent their recurrence.
Nevertheless, each and every certificate of conformance stated that
shipment conformed to requirements.
(Id. at 7).
-6-
Relator’s Answer, in this instance, is simply too conclusory and fails to
state, with reasonable particularity, which witnesses or evidence establish the
important element of a qui tam claim – that the false claims were “knowingly”
presented. Additionally, more specific identification of what witnesses and/or
what documents address the “intent” portion of the claims is required.
B. Interrogatory No. 10
In Interrogatory No. 10, Defendant seeks a response from Relator that
identifies all nonconforming parts that were sold under false claims and why
those particular parts were nonconforming. In response, Relator claims that it
has complied with the request:
DD-250s and commercial invoices identified by the Relator include:
contract numbers, date shipped, payor, destination, CLIN, part
number, quantity, unit/extended price, and certificate of
conformance. This information, coupled with numerous examples of
nonconformances and the fact that Relator has consistently
complained of systemic problems that regularly result in
nonconforming parts, fully and nonevasively responds to the
interrogatory.
(Response to Defendant’s Motion to Compel at 13).
The purpose of the discovery rules is to bring to light the parties’ positions
in an “informed” and controlled manner that winnows down the resolution of a
dispute by identifying those facts that are clearly in dispute and those legal
theories that are being debated. The discovery process is meant to do so – as
Rule 1 of the Federal Rules of Civil Procedure provides – as justly, quickly, and
inexpensively as possible. Trial “by ambush” is to be avoided where possible.
-7-
The Answer to Interrogatory No. 10 is simply too evasive to be helpful to the
resolution of the dispute. It does not in any manner assist in “paring down” what
pieces of evidence are relevant to particular claims. An attorney who is faced
with “contention” type discovery must identify the witnesses and documents
he/she has marshaled in a way to support his/her client’s position and to help
illuminate the issues to be resolved as the responses and answers are due.
Relator is ordered to identify all documents and witnesses that he intends
to use at trial to support his claims and state with specificity (and hopefully pare
down) which part numbers are alleged to be nonconforming. The identification of
documents which establish that particular parts are nonconforming needs to be
reasonably specific – at least by Bates stamp number – though it does not require
Relator to explain how or why said document supports the claim that a particular
part is nonconforming.
IV. Conclusion
For the reasons outlined above, the Defendant’s Motion to Compel is
GRANTED. Supplementation of answers required by this Order should be
completed within fifteen (15) days of the date of this Order.
SO ORDERED.
Dated: September 20, 2011
__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
-8-
Electronic copies to:
Jeff M. Barron
BARNES & THORNBURG LLP
jeff.barron@btlaw.com
Michael R. Brunelle
BARNES & THORNBURG LLP
mbrunelle@btlaw.com
Jill Z. Julian
UNITED STATES ATTORNEY’S OFFICE
jill.julian@usdoj.gov
Edward A. McConwell Sr.
MCCONWELL LAW OFFICES
ed@mcconwell.com
Koryn Michelle McHone
BARNES & THORNBURG LLP
kmchone@btlaw.com
Peter Abernethy Morse Jr
BARNES & THORNBURG LLP
pmorse@btlaw.com
Charles W. Ryan III
DOMBROFF GILMORE JAQUES & FRENCH, P.C.
cryan@dglitigators.com
Joseph Striewe
joestriewe@striewelaw.com
Richard P. Winegardner
BARNES & THORNBURG LLP
rwinegar@btlaw.com
Judy L. Woods
BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP
jwoods@beneschlaw.com
-9-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?