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

Filing 239

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's motion (Doc. No. 157) is GRANTED with respect to the remaining 15 Reports at issue, which the Government shall forthwith provide to Defendants. Signed by District Judge Audrey G. Fleissig on 2/9/17. (CSG)

UNITED STATES DISTRICT COURT
SOUTHEASTERN DISTRICT OF MISSOURI

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. 157) to compel production of reports of interviews (“Reports”) conducted by
the Government before it intervened in this action or filed criminal charges against
Defendants based on the allegations in the qui tam complaint. The Government
asserted work product protection. By Order dated December 22, 2016 (Doc. No. 213),
the Court granted the motion to compel with respect 27 Reports of interviews
conducted before the Government intervened in this case, for which the Government’s
privilege log did not show the name of an Assistant United State Attorney (“AUSA”)
representing the Government in this case, or in the parallel now-dismissed criminal case
against Defendants. The Court denied the motion to compel with respect to 26 Reports
of interviews conducted after the Government intervened in the case. This left 15
Reports of interviews conducted before the Government intervened in this case, with
which an AUSAs name was associated.

The Court directed the Government to submit those 15 Reports to the Court for
its in camera review, so that the Court could determine whether they constituted
opinion work product (reflecting the opinions, judgments, and thought processes of
counsel), and therefore privileged; or fact work product (containing content that had
not been “sharply focused or weeded” by counsel, such as substantially verbatim
witness statements), and therefore discoverable by Defendants, given Defendants’
showing of a substantial need for them.
The 15 Reports have been submitted by the Government and, upon careful
review, the Court concludes that none constitute opinion work product. The Reports
were all prepared by FBI agents and/or agents of the U.S. Department of Health and
Human Services Office of Inspector General who conducted the interviews. The
Reports state that the two AUSAs referenced above were present. Six Reports state that
the two AUSAs participated in the interview or conducted the interview with the federal
agent. However, none of the Reports sufficiently reveal counsel’s opinions,
judgments, or thought processes to qualify as opinion work product. It is not apparent
from any of these Reports who, for example, decided to ask which questions. See
United States ex rel. Landis v. Tailwind Sports Corp., 303 F.R.D. 419, 425-26 (D.D.C.
2014) (granting qui tam defendant’s motion to compel production of government
interview memoranda containing ordinary fact work product where interviews were
conducted during criminal investigation of qui tam allegations); United States v.
Clemens, 793 F. Supp. 2d 236, 252 (D.D.C. 2011) (explaining that notes and
memoranda that do not reflect the opinions, judgments, or thought processes of counsel
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are ordinary work product and are discoverable if the party seeking discovery has a
substantial need for the materials and cannot obtain their substantial equivalent by other
means). Thus, disclosure of these Reports is appropriate for the reasons stated in this
Court’s prior Order of December 22, 2016.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion (Doc. No. 157) is
GRANTED with respect to the remaining 15 Reports at issue, which the Government
shall forthwith provide to Defendants.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 9th day of February, 2017.

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