produce needed, but unspecified facts, failed to satisfy Rule 56(d)’s requirement that she specifically demonstrate how postponement of a ruling would enable her, by discovery or other means, to rebut the movant’s she absence of a genuine issue of fact. 168 Scope of Discovery FCA litigation frequently includes extensive discovery requests over broad time periods, given the nature of the allegations at issue. When disputes over the scope of discovery arise, some courts attempt to craft creative solutions and compromises to strike a balance between competing fairness and burden concerns. In United States v. Allergan, Inc. , the district court was called on to resolve three discovery disputes in an action alleging false claims in the marketing and implementation of a breast implant trial program. 169 The disputes centered on: (1) the number of additional custodians, if any, on which the defendant would be required to conduct keyword searches of electronically stored information (ESI); (2) whether, or to what extent, Allergan should collect text messages and subject them to keyword searches; and (3) whether the collection
Finally, regarding the end date for ESI discovery, the district court rejected the defendant’s argument that searching two additional years of ESI was unduly burdensome, reasoning that the defendant imposed the February 2018 limit knowing that the relator did not agree with it. The district court was more sympathetic to the defendant’s arguments that the operative complaint contained no particularized facts of ongoing fraud. As a compromise resolution, the district court ordered the defendant to execute the relator’s proposal to search 15 custodians’ data for the time period of February 2018 through October 31, 2018, the day before the qui tam complaint was unsealed. For the time period of November 1, 2018, through March 31, 2020, the district court adopted the defendant’s proposal that it could self-collect documents relevant to the issues in the lawsuit after interviewing relevant custodians with knowledge. In U.S. ex rel. Simpson v. Bayer A.G. , the defendants served a subpoena on CMS for paper records, and the United States, which had declined to intervene in the action, moved to quash. 170 The government’s declaration in support of the motion to quash noted the subpoena would have required CMS to produce 230 million pages of records contained in over 91,000 boxes dispersed at several government storage sites around the country. The special master granted the motion to quash, finding the defendants had failed to demonstrate the relevance of the records or that they contained information that could not be obtained from other sources. The United States then moved to shift the costs and expenses CMS incurred because of the defendants’ subpoena under FRCP 45(d)(1) and 45(d)(2)(B). The special master denied the motion, finding that sanctions under Rule 45(d)(2)(B) were only available where a court has issued an order compelling production in response to a motion by a party seeking discovery, and that sanctions under Rule 45(d) (1) were discretionary and unwarranted in this case because: (1) the defendants’ subpoena was not issued in bad faith or for improper purposes, and (2) CMS did not actually have to collect, analyze or produce the records, even if CMS found it inconvenient to gather the information necessary for its declaration in support of the motion to quash. The district court affirmed on both grounds, emphasizing that the defendants engaged in multiple meet-and-confer attempts regarding the scope of their subpoena, offered to review a meaningful sample of the records to reduce the burden and offered a potential stipulation as an alternative to getting the actual documents. BREACHES OF THE SEAL Under the FCA’s seal provision, 31 U.S.C. § 3730(b)(2), qui tam complaints “shall remain under seal for at least 60 days.” The 60-day seal period is intended to permit the government to decide whether to intervene, and the government can seek an extension of the initial period. 171 When adjudicating issues regarding the seal in qui tam actions, courts are asked to balance these statutory requirements with the common-law right of public access to judicial records. In U.S. ex rel. Meythaler v. Encompass Health Corp. , the relator simultaneously dismissed his qui tam complaint and moved the court to keep the action under seal even after its dismissal. 172 The district court found that the relator’s professed fear of retaliation
of ESI for keyword searches should end as of the lawsuit’s filing date (February 2018) or some later date based on the relator’s allegation of an ongoing fraud scheme. As to the number of custodians, the defendants had already searched and provided documents for 35 custodians. The relators asserted the need to have search terms applied to 36 additional custodians while the defendants proposed adding only 14, which the defendants argued was sufficient to cover relevant roles, times and regions. After making
FCA litigation frequently includes extensive discovery requests over broad time periods, given the nature of the allegations at issue.
a number of theoretical assumptions about timing of review, the district court adopted the defendant’s proposal of adding 14 custodians, but allowed the relator to choose an additional three and replace up to five of the defendants’ proposed 14 with individuals from the relator’s list of 36. Regarding text messages, the district court ordered a staged process. First, the relators were ordered to provide a digestible description (no greater than 150 words) to the defendants regarding the types of text messages in which the relator was most interested. Second, the defendant would share the relator’s description with the 52 proposed text message custodians and ask them to estimate: (1) if they ever used text messages in the manner described by the relator (never, rarely, occasionally, frequently or daily); and (2) the approximate date range of relevant text messages. Finally, the defendant would provide a chart with the custodians’ information to the relator within 14 days of receiving the relators’ description of requested text messages, from which the relator would be allowed to pick no more than 3 custodians for text discovery.
170 2021 WL 363705 (D.N.J. Feb. 2, 2021). 171 31 U.S.C. § 3730(b)(3). 172 2021 WL 871347 (N.D. Ala. Mar. 9, 2021).
168 2021 WL 289343 (M.D. Fla. Jan. 28, 2021). 169 2021 WL 969215 (C.D. Cal. Mar. 1, 2021).
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