United States of America ex rel. et al v. D.S. Medical LLC et al

Filing 149

MEMORANDUM AND ORDER re: 133 MOTION to Compel Privilege Log filed by Defendant Sonjay Fonn motion is GRANTED. Signed by District Judge Audrey G. Fleissig on 6/9/16. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
UNITED STATES OF AMERICA,
ex rel. PAUL CAIRNS, et al.,
Plaintiff,
vs.
D.S. MEDICAL, L.L.C., et al.,
Defendants.

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Case No. 1:12CV00004 AGF

MEMORANDUM AND ORDER
This qui tam action is before the Court on Defendant Dr. Sonjay Fonn’s motion
(Doc. No. 133) to compel a Privilege Log. At issue are interviews conducted by the
government in connection with its investigation of the current case. The qui tam
complaint was filed on January 5, 2012, alleging violations of the False Claims Act.
The government conducted a joint criminal/civil investigation that resulted in a criminal
case and the present civil case against the same Defendants. On June 30, 2014, the
government filed its notice of intention to intervene in this case. Defendant Fonn now
seeks a privilege log that will identify who was interviewed, by whom they were
interviewed, and when each interview took place, during the government’s
investigation of the case. Defendant argues that he needs such a log to enable him to
determine if there is a basis to seek production of any particular reports of interviews or
related documents, discovery which might not be precluded by the work-product or
investigative privileges, both of which are only qualified privileges.

The government argues that such a log is itself protected by the work-product
doctrine, because disclosing the identities of the individuals interviewed and who
conducted the interviews would disclose information about the government’s mental
impressions, legal theories, and strategies in the case. In support of this position, the
government has submitted the affidavit of one of the Assistant United States Attorneys
involved in the criminal case against Defendants that was also based on the qui tam
complaint. She attests that all the interviews conducted by the government during the
joint investigation of the criminal and civil cases were conducted “in anticipation of
litigation.”
It is undisputed that the government has already disclosed through its various
Rule 26 disclosures the names of witnesses, including the names which the government
believes to be most knowledgeable and therefore most likely to be a witness at trial or
to be deposed.
Rule 26(b)(3) of the Federal Rules of Civil Procedure protects from discovery
documents and things prepared by a party or his representative in anticipation of
litigation or in preparation for trial. Production of those documents can be compelled
only where the seeking party demonstrates a “substantial need” for the materials and an
inability to obtain the substantial equivalent of the desired information by other means.
The Court agrees with Defendant that production of the privilege log sought is
appropriate. Although there is some contrary authority, courts generally hold that the
names and addresses of individuals interviewed by adverse counsel are not protected by
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the work product doctrine. See, e.g., Norflet v. John Hancock Fin. Servs., Inc., 2007
WL 433332, at *3 (D. Conn. 2007) (citing cases). Given the initial disclosures made in
this case, it is unlikely that the log will disclose the government’s litigation strategy to
any further degree. And without the log, Defendant will not be able to evaluate which
interview reports he believes will be discoverable. Without deciding the issue specific
to this case, the Court notes that interview reports such as those involved here have
been determined to be discoverable in certain situations. See, e.g., Cruz v. Kennedy,
No. 97CIV.4001(KMW) (HBP), 1998 WL 689946, at *6 (S.D.N.Y. Sept. 30, 1998).
For now, the Court is just being asked to order that the privilege log sought be
produced. This is a reasonable request. To the extent the government believes the log
will disclose confidential information, an appropriate protective order can be entered.
Accordingly,
IT IS HEREBY ORDERED that Defendant Sonjay Fonn’s motion (Doc. No.
133) to compel a privilege log is GRANTED.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 9th day of June, 2016.

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