United States of America, ex rel., et al v. Sightpath Medical, Inc., et al

Filing 488

ORDER granting 330 Motion to Compel. (Written Opinion) Signed by Magistrate Judge David T. Schultz on 12/17/2019. (AJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

United States of America, ex rel., et al.,

Case No. 13-cv-3003 (WMW/DTS)

Plaintiffs,
ORDER
v.
Cameron-Ehlen Group, Inc., et al.,
Defendants.
______________________________________________________________________
As part of discovery in this False Claims Act matter, the Government and Relator
Kipp Fesenmaier have asserted a common interest privilege over communications
shared between the Relator (and his counsel) and Government agents (including
members of the U.S. Attorney’s Office). During the May 2019 status conference,
Defendants first challenged Plaintiffs’ assertion that the Government and Fesenmaier
had a unity of interest beginning on April 24, 2013, the date on which the Relator told an
FBI agent that he had hired an attorney for a potential False Claims Act lawsuit. May 21,
2019 Hr’g Tr. 38-39, Dkt. No. 277. In a subsequent Order, this Court analyzed the
common interest privilege and its application in False Claims Act cases, both generally
and in the present case. June 10, 2019 Order, Dkt. No. 275. 1 There, the Court ordered
production of any documents not independently subject to attorney-client privilege or the
work product doctrine, but invited the parties “to provide sufficient factual detail and
legal argument necessary to resolve the broader question of whether the common
interest doctrine is to be applied prior to September 2013.” Id. at 5. Defendants
accepted that invitation and brought the motion that is the subject of this Order.

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The Court expressly incorporates that prior Order and its analysis into the present
Order.

In their briefing, Defendants questioned Fesenmaier’s standing to bring the qui
tam action at all, arguing his interest in the claim should have been part of his
bankruptcy estate. Without standing, the theory posits, there could be no common legal
interest between Fesenmaier and the Government. That argument presents an
interesting question that has, at least, the potential to undermine the claim of common
interest. However, its resolution would require the consideration of other dispositive
issues that are currently before District Judge Wright on Defendants’ motion for
summary judgment against Fesenmaier. This Court defers on these broader questions.
Nonetheless, this Court left open the original challenge as to when the common
interest privilege began. With fact discovery now ostensibly closed, this open question
must be addressed. As the asserting side, Plaintiffs bear the burden of establishing that
the privilege applies in the specific instance. See Hollins v. Powell, 773 F.2d 191, 196
(8th Cir. 1985). On the record before this Court, any common interest privilege is
properly asserted only once Fesenmaier made his pre-filing disclosure to the
Government.
The very nature of the pre-filing disclosure makes the date it occurred a clear
point of demarcation. As discussed in the prior Order, the caselaw is fairly clear that the
Relator does not waive applicable privileges by following the disclosure requirements of
31 U.S.C. § 3730(b)(2). In re Uehling, 2014 WL 1577459, at *5 (E.D. Cal. Apr. 17,
2014). It is logical that the Government, upon receipt of that file, would follow up with the
Relator and counsel as it weighs intervention and considers potential case strategy.
Further, although no bright line “relation back” rule exists in the caselaw, the
Government’s ultimate intervention in the case lends factual support to the present
record that the communications between the Plaintiffs were in fact in furtherance of a
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strategic common legal interest. Because they had a sufficient unity of interests at the
time Fesenmaier made his pre-filing disclosure, Plaintiffs did not waive otherwise
applicable privileges by sharing documents and communications among themselves on
or after September 20, 2013.
The record is far less clear as to the earlier date on which Plaintiffs also assert
the common interest privilege. On April 24, 2013, Fesenmaier emailed Mary Jo Herrett,
the case agent leading the FBI’s criminal investigation. Decl. of Matthew Piehl, Sept. 27,
2019, Ex. 1 (Fesenmaier Dep. 184-85), Dkt. Nos. 333-34. He informed Special Agent
Herrett that he had retained a law firm for a potential qui tam action, and Special Agent
Herrett responded she was not surprised. Id.
Bearing in mind that Plaintiffs have the burden of demonstrating the applicability
of a discovery privilege, Hollins, 773 F.2d at 196, Fesenmaier’s email informing Special
Agent Herrett that he had hired an attorney is insufficient to meet that burden. Even
assuming that Special Agent Herrett’s knowledge that Fesenmaier hired an attorney
could be imputed to the Government, there is no further factual predicate
demonstrating, in that early phase, a common legal strategy or unity of interests. At the
time Fesenmaier made the statement, the FBI’s investigation was apparently still
criminal in nature, and the civil division of the U.S. Attorney’s Office did not become
involved in witness interviews until 2014. Decl. of Mary Jo Herrett, Feb. 14, 2019, at ¶¶
4-5, Dkt. No. 182. Because Fesenmaier was cooperating in the criminal investigation
when he hired an attorney, it is far from obvious that any subsequent communication
was made in furtherance of a common interest, rather than as a cooperating witness.
Plaintiffs have argued that a broad view of the common interest privilege in this
matter is consistent with the purpose of the False Claims Act. Although the limited
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authority in this area suggests that a unity of interest can be assumed at certain points
prior to intervention, the argument does not carry as much water as Plaintiffs need. The
interests of the Relator and the Government are not always and necessarily aligned.
United States ex rel. (Redacted) v. (Redacted), 209 F.R.D. 475, 479 n. 3 (D. Utah
2001). At the time he informed the FBI he hired an attorney, Fesenmaier’s interests
could have been well at odds with the Government’s interest in prosecuting the criminal
action. Even in the civil action, the statute authorizing qui tam lawsuits gives the
Government the power effectively to sideline a relator when useful to litigating the case
as the Government sees fit. 31 U.S.C. § 3730(2)(A)-(D) (allowing the Government to
dismiss or settle the action over the relator’s objections and authorizing the court to limit
the relator’s participation in the litigation).
In sum, Plaintiffs have not met their burden to show that the common interest
privilege applied to otherwise privileged material before September 20, 2013. If Plaintiffs
shared such documents or communications with each other before that date, they
waived any otherwise applicable privilege.
The Court, having heard argument on the matter and being fully apprised hereby
makes the following order.
IT IS HEREBY ORDERED that Defendants’ Motion to Compel Withheld Materials
and Testimony [Dkt. No. 330] is GRANTED. Plaintiffs shall produce all responsive
communications previously withheld pursuant to the common interest privilege if the
communication occurred before September 20, 2013.
Dated: Dec. 17, 2019
s/ David T. Schultz
DAVID T. SCHULTZ
United States Magistrate Judge
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