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Not Reported in F.Supp.2d
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Case 1:06-cv-00648-RCL Document 41-4 Filed 07/29/2008 Page 2 of 5

Not Reported in F.Supp.2d
Not Reported in F.Supp.2d, 2004 WL 868271 (E.D.Pa.)
2004 WL 868271 (E.D.Pa.)

Page 1

U.S. ex rel. Hunt v. Merck-Medco Managed Care,
LLC
E.D.Pa.,2004.
Only the Westlaw citation is currently available.

United States District Court,E.D. Pennsylvania.
UNITED STATES OF AMERICA ex rel. George
Bradford Hunt, Walter W. Gauger, and Joseph Pia-

centile, Plaintiffs

v.

MERCK-MEDCO MANAGED CARE, LLC;

Medco Health Solutions, Inc.; Merck-Medco RX
Services of Florida, No. 2, LC, et al., Defendants

No. 00-CV-737.

April 21, 2004.

Christopher
Iannicelli, David S. Stone, Boies
Schiller & Flexner LLP, Short Hills, NJ, Mitchell
R. Kreindler, Kreindler & Associates, P.C., Hous-
ton, TX, Nancy J. Glidden, West Chester, PA,
Richard Drubel, Boies Scheller & Flexner, Han-
over, NH, Sharon M. Gurak, Kreindler & Asso-
ciates, P.C., Malvern, PA, Alison M. Duncan, Port-
er, Wright, Morris & Arthur, Washington, DC,
Marc S. Raspanti, Michael A. Morse, Miller Alfano
& Raspanti PC, Philadelphia, PA, Patrick H. Hag-
gerty, Philip E. Kessler, Porter Wright Morris &
Arthur, LLP, Dayton, OH, Benjamin James Steven-
son, Michael Kelley, Tallahassee, FL, Patrick J.
Keenan, Assistant Atty. General, Chicago, IL, Mi-
chael K. Bassham, Peter M. Coughlan, Nashville,
TN, Brian Sandoval, L. Timothy Terry, Marie Mar-
tin-Kerr, State of Nevada Office of the Attorney
General, Senior Deputy Attorney General, Carson
City, NV, Betsy Whittey, Attorney General's Of-
fice, Assistant Attorney General, Christopher K.
Barry-Smith, Attorney General Office, Assistant
Attorney General, Consumer Prot & Antitrust Div.
Public Protection Bureau, Boston, MA, Thomas Re-
illy, Office of the Attorney General, Attorney Gen-
eral of Massachusetts, Boston, MA, Gregory C.
Fleming, Virginia office of Attorney General, Rich-
mond, VA, Arthur J. Parker, Charlotte W. Parker,

Inspector General, Washington, DC,

Sidney Rocke, Stuart I. Silverman, D.C. office of
the
for
Plaintiff.
Cathy Young Thomer, U.S. Attorney‘s office, Phil-
adelphia, PA, David Todd Shapiro, Washington,
DC, James G. Sheehan, U.S. Attorney'S Office,
Philadelphia, PA, Mary Catherine Frye, United
States Attorney‘s Office, Assistant U.S. Attorney,
Patrick L. Meehan, U.S. Attorney Office, Sonya
Fair Lawrence, United States Attorney's Office,
Philadelphia, PA, for Intervenor Plaintiff.
Janet C.
Enu Mainigi, Williams & Connolly,
Fisher, Williams & Connolly LLP, William E.
McDaniels, Williams and Connolly, Washington,
DC, Michael J. Holston, Drinker Biddle & Reath
LLP, Phila, PA, Nicholas M. Centrella, Conrad,
O'Brien, Gellman and Rohn, P.C., Philadelphia,
PA, Jack E. Fernandez, Zuckerman Spaeder LLP,
Tampa, FL, Scott Godshall, List & List, Phil-
adelphia, PA, Simon Gaugush, Zuckerman Spaeder
LLP, Tampa, FL, for Defendant.

MEMORANDUM AND ORDER

of written

SCUDERI, Magistrate J.
*1 Presently before the court is an Expedited Mo-
tion to Compel Production of Documents filed by
Defendants, Merck-Medco Managed Care, LLC,
etal. (“Medco Defendants”), seeking to compel the
production
statements
provided to the United States Government by the
relators in the instant case pursuant to the Federal
False Claims Act, 31 U.S.C. § 3730(b)(2)
(
“Disclosure Statements”).FN1 The Relators, togeth-
er with the United States Government (collectively,
“Plaintiffs”),
jointly oppose the motion. For the
reasons set forth below, the motion is denied.FN2

disclosure

FN1. There are two (2) Disclosure State-
ments at issue-one (1) jointly submitted to
the government by George Bradford Hunt
and Walter W. Gauger, and a second sub-
mitted by Joseph Piacentile (collectively,
“Relators”).

© 2008 Thomson Reuters/West. No Claim to Orig. U.S. Govt. Works.

Case 1:06-cv-00648-RCL Document 41-4 Filed 07/29/2008 Page 3 of 5

Page 2

Not Reported in F.Supp.2d
Not Reported in F.Supp.2d, 2004 WL 868271 (E.D.Pa.)
2004 WL 868271 (E.D.Pa.)

FN2. This matter is before me pursuant to
the governing Case Management Order
signed by The Honorable Clarence C.
Newcomer.

In their Expedited Motion, Medco Defendants seek
to compel the production of the § 3730(b)(2) Dis-
closure Statements in full or, in the event that a vi-
able privilege applies, they request that the court
undertake an incamera review of the Disclosure
Statements and require production of all non-
privileged content.FN3See Def.'s Br.
at 3-7.
Plaintiffs raise a number of arguments in opposition
to the motion, including: (1) the plain language of
21 U.S.C. § 3730(b)(2) provides that the Disclosure
Statements are provided only to the government,
and are not filed with the court and not served upon
defendants; (2) production of the Disclosure State-
ments would violate public policy insofar as it
would discourage some relators from coming for-
ward or revealing certain sensitive facts, which
would undermine congressional intent in exposing
and successfully prosecuting public fraud; (3) the
Disclosure Statements are protected by the Work
Product Doctrine; (4) the Disclosure Statements are
protected by the Attorney-Client Privilege; and (5)
the Disclosure Statements are protected by the Joint
Prosecution Privilege (which is also known as the
Common Interest Doctrine).See Pl.'s Br. at 11-22.
The only thing the parties agree upon is that neither
the Third Circuit, nor
the Eastern District of
Pennsylvania, has considered whether § 3730(b)(2)
Disclosure Statements are discoverable. See Pl's Br.
at 13; Def.'s Traverse at 2, n. 2. As a result, the
parties marshal evidence from other federal juris-
dictions-and often rely upon the same cases to
reach opposite conclusions.

FN3.Section 3730(b)(2) provides that re-
lators provide the government with a “copy
of [their] complaint and written disclosure
of substantially all material evidence and
information” in their possession-and these
Disclosure Statements are then used by the
government to decide whether to join the

relators in a given suit, allow the private
party or parties to continue alone, or dis-
miss the suit. See31 U.S.C. § 3730(b)(2);
United States ex rel. Stone v. Rockwell In-
ternational Corp., 144 F.R.D. 396, 398
(D.Col.1992).

In any event, the court finds that it is not necessary
at this time to investigate whether the language of §
3730(b)(2) precludes discovery of the Disclosure
Statements, whether production of the Disclosure
Statements would undermine public policy, or
whether the Attorney-Client Privilege and/or Joint
Prosecution Privilege applies. Rather,
the issue
presently before the court can be decided by applic-
ation of the Work Product Doctrine and, more im-
portantly, Federal Rule of Civil Procedure 26(b)(3).

The Work Product Doctrine generally protects from
discovery materials prepared by an attorney or his
or her client in anticipation of litigation or for use
at
trial. SeeHickman v. Taylor, 329 U.S. 495,
510-511, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Sporck
v. Peil, 759 F.2d 312, 216 (3d Cir.), cert.denied,474
U.S. 903, 106 S.Ct. 232, 88 L.Ed.2d 230 (1985).
However,
there are two (2) generally accepted
types of work product, to which different levels of
protection attach. The first type of work product is
opinion work product-that is, work product that in-
cludes an attorney's mental
impressions, conclu-
sions, opinions or legal theories-which is accorded
an
from
discovery.” Sporck, 759 at 316.The second type of
work product is factual work product-that is, work
product that merely contains the factual basis of a
lawsuit, devoid of attorney opinion or mental im-
pressions. Factual work product is entitled only to
qualified immunity, such that
is discoverable
“only upon a showing that the party seeking dis-
covery has substantial need of the materials in pre-
paration of the party's case and that the party is un-
able without undue hardship to obtain the substan-
tial
other
means.”Fed.R.Civ.P. 26(b)(3)
(emphasis added);
Sporck, 759 F.2d at 316.

the materials

protection

equivalent

of

“almost

absolute

it

by

© 2008 Thomson Reuters/West. No Claim to Orig. U.S. Govt. Works.

Case 1:06-cv-00648-RCL Document 41-4 Filed 07/29/2008 Page 4 of 5

Page 3

Not Reported in F.Supp.2d
Not Reported in F.Supp.2d, 2004 WL 868271 (E.D.Pa.)
2004 WL 868271 (E.D.Pa.)

*2 Not surprisingly, Plaintiffs argue that the Dis-
closure Statements at issue constitute opinion work
product or,
in the very least, are factual work
product with which the mental impressions, conclu-
sions, opinions or legal theories of Relators' coun-
sel are inextricably intertwined. See Pl.'s Br. at 17.
Medco Defendants, to the contrary, argue that the
Disclosure Statements contain merely a recitation
of the factual bases for Relators' complaints; that
they have a substantial need for the Disclosure
Statements; and that they cannot obtain the substan-
tial equivalent of the Disclosure Statements without
undue hardship. See Def.'s Br. at 6-7; Def.'s Tra-
verse at 1-2, 4-9. Thus, Medco Defendants seek to
compel production of the Disclosure Statements in
their entirety or, in the alternative, request that the
court conduct an incamera review of the Disclosure
Statements and order that all non-privileged materi-
al be disclosed.

As an initial matter, there is no question that the
Disclosure Statements were prepared “in anticipa-
tion of litigation” insofar as they were drafted by
Relators' attorneys after the drafting of Relators'
complaints and, as previously explained, they were
submitted to the government pursuant to the False
Claims Act for the purpose of allowing the govern-
ment to determine whether it should intervene in
the case. See31 U.S.C. § 3730(b); seealsoUnited
States ex rel. O'Keefe v. McDonnell Douglas Corp.,
918 F.Supp. 1338, 1346 (E.D.Mo.1996) (stating not
necessary to determine whether Disclosure State-
ment constituted opinion or factual work product
for purposes of the Work Product Doctrine because
the plain language of the False Claims Act requires
relator to prepare the document “in anticipation of
litigation”). Because the Disclosure Statements
were prepared in anticipation of litigation, they fall
within the general protection of the Work Product
Doctrine. SeeFed.R.Civ.P. 26(b)(3); Hickman, 329
U.S. at 510-511;Sporck, 759 F.2d at 316. Therefore,
even assuming that the Disclosure Statements con-
stitute factual work product, as opposed to opinion
work product, they can only be disclosed upon a
showing by Medco Defendants that
they have a

substantial need for the Disclosure Statements, and
that they cannot obtain the substantial equivalent of
the Disclosure Statements without undue hardship.
SeeFed.R.Civ.P. 26(b)(3).

I conclude that Medco Defendants have not, at this
time, satisfied the requirements set forth by Rule
26(b)(3). As an initial matter, the parties have en-
gaged in significant discovery.FN4More import-
antly, trial is many months away and Medco De-
fendants are only beginning to depose the three (3)
Relators who submitted the Disclosure Statements
to the government in the first place. Therefore, the
factual bases of the Relators' claims are already
known, or should certainly become known as dis-
covery proceeds; and to the extent that Plaintiffs'
answers to Medco Defendants' discovery requests
have proven unsatisfactory, Medco Defendants
have ample opportunity over the course of the next
the
several months to discover, with specificity,
facts and individuals most
to their
case.FN5

important

FN4. Plaintiffs claim that they have sub-
mitted “tens of thousands” of documents to
Medco Defendants (see Pl.'s Br. at 18),
while Medco Defendants counter that they
have received only approximately 7,000
documents, and that these have proven un-
helpful (see Def.'s Traverse at 9). What is
clear, however, is that Medco Defendants
have had at least some access to the factual
information contained in the Disclosure
Statements through four (4) years of in-
vestigation and through ongoing discovery
after the case was un-sealed, including: at-
tendance at all of the government's invest-
igation interviews of Medco employees;
access to all Civil Investigative Demand
deposition transcripts; the identification of
more than 4,000 individuals in Plaintiffs'
Rule 26(a) initial discovery disclosures, in-
cluding the names of individuals identified
in the Disclosure Statements; and answers
to more than 180 interrogatories.

© 2008 Thomson Reuters/West. No Claim to Orig. U.S. Govt. Works.

Case 1:06-cv-00648-RCL Document 41-4 Filed 07/29/2008 Page 5 of 5

Page 4

Not Reported in F.Supp.2d
Not Reported in F.Supp.2d, 2004 WL 868271 (E.D.Pa.)
2004 WL 868271 (E.D.Pa.)

stantial equivalent of the Disclosure Statements
without undue hardship. SeeFed.R.Civ.P. 26(b)(3);
Sporck, 759 F.2d at 316. Therefore, the court will
not conduct an incamera review at this time, and
will deny Defendants' Expedited Motion.

An appropriate Order follows.

ORDER

AND NOW, this day of April, 2004, after consider-
ation of Defendants' Expedited Motion to Compel
Production of Documents (No. 147), Plaintiffs'
Joint Response (No. 150), and Defendants' Reply
thereto (No. 153), it is hereby ORDERED that the
Motion is DENIED.

E.D.Pa.,2004.
U.S. ex rel. Hunt v. Merck-Medco Managed Care,
LLC
Not Reported in F.Supp.2d, 2004 WL 868271
(E.D.Pa.)

END OF DOCUMENT

FN5. For example, Medco Defendants ar-
gue that they need the Disclosure State-
ments in order to determine whether the
Relators were the original sources of the
allegations contained in the complaint. See
Pl.'s Br. at 6. However, this information
can be easily explored by Medco Defend-
ants during their upcoming depositions of
the Relators.

*3 Moreover, courts which have compelled produc-
tion of Disclosure Statements have largely done so
under circumstances not present here. For example,
in Stone,supra, the United States District Court for
the District of Colorado conducted an incamera re-
view of the Disclosure Statements and ordered that
they be produced because, although the Work
Product Doctrine applied, the court found that the
moving party had demonstrated both a substantial
need for the documents and that they could not ob-
tain the substantial equivalent without undue hard-
ship. See144 F.R.D. at 401. Specifically, the court
explained that the plaintiff had provided little in the
way of discovery which would reveal the factual
basis for the allegations in the relator's complaint,
and that trial was only three (3) months away. Id.
As previously explained, neither of these circum-
stances is present in the instant case and, perhaps
most importantly, Medco Defendants have yet to
depose the Relators. In such circumstances, com-
pelling production of the Disclosure Statements
would be premature, at best. See,e.g.,United States
ex rel. Weber v. Hughes Aircraft Co., No. 89-6517
JGD,
1992)
(unpublished order) (denying motion for review of
denial of motion to compel, finding that moving
party did not have a substantial need to know addi-
tional information contained in Disclosure State-
ment, and could not demonstrate an inability to ob-
tain the same information without undue hardship).

(C.D. Cal. April

23,

at

6-7

For all of the foregoing reasons, I conclude that
Medco Defendants cannot establish a substantial
need for the Disclosure Statements, nor can they
demonstrate that they are unable to obtain the sub-

© 2008 Thomson Reuters/West. No Claim to Orig. U.S. Govt. Works.