Case 1:06-cv-00648-RCL Document 42 Filed 08/04/2008 Page 1 of 5
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES ex rel. SCHWEIZER,
OCÉ NORTH AMERICA, et al.,
Civil Action No: 1:06-CV-00648
Judge Royce C. Lamberth
DEFENDANTS OCÉ NORTH AMERICA, OCÉ IMAGISTICS,
AND OCÉ-USA HOLDINGS, INC.’S REPLY TO RELATORS’ JULY 29, 2008
MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO UNSEAL
Defendants Océ North America, Océ Imagistics, and Océ-USA Holdings, Inc.
(“Defendants” or “Océ”) by and through their undersigned counsel hereby reply to the Relators’
July 29, 2008 Memorandum in Opposition (“Opposition”) to Defendants’ Motion to Unseal
Documents Filed by the Relators in this Case of July 16, 2008 (“Motion to Unseal”). First, the
Relators’ Opposition is not timely and, therefore, the Defendants respectfully submit that the
Court should treat the underlying Motion as conceded.1 Second, the Relators’ Opposition lacks
merit because it discusses cases that are neither germane to the Defendants’ Motion to Unseal
nor relevant to the Defendants’ request to unseal the Relators’ filings.
DEFENDANTS’ MOTION TO UNSEAL IS MERITORIOUS
As the Defendants explained in the underlying motion, the Court’s analysis in resolving a
motion to unseal in a case brought under the False Claims Act, 31 U.S.C. § 3729 et seq.
Local Civil Rule 7(b) requires opposing points and authorities to be filed within 11 days of a motion. In the
present case, the Defendants’ filed their Motion to Unseal on July 16, 2008, so the Relators’ Opposition
was due on July 28, 2008. Relators filed their Opposition on July 29, 2008. Therefore, the Court “may
treat the motion as conceded.”
- 1 -
Case 1:06-cv-00648-RCL Document 42 Filed 08/04/2008 Page 2 of 5
(“FCA”), is two-fold. First, the Court should consider whether the docket in this case should
remain under seal following D.C. Circuit precedent in cases resolving motions to unseal such as
United States v. Hubbard, 650 F.2d 293, 317-22 (D.C. Cir. 1980), and Weaver v. Bratt, 421 F.
Supp. 2d 25, 43 (D. D.C. 2006). These cases instruct that courts should apply a six-factor test to
determine whether records should remain sealed. As Defendants explained in their Motion to
Unseal, each of these six factors militates in favor of unsealing all of the Relators’ filings in this
Second, a number of courts from other circuits have considered motions to unseal in FCA
cases. To determine whether to grant a motion to unseal in an FCA action, these courts have
“balanced the pragmatic need of the FCA defendants for the disclosure of the documents sought
to be unsealed versus the potential harm caused by the disclosure to the government or the
relators.” United States ex rel. Howard v. Lockheed Martin Corp., Case No. 1:99-CV-285, 2007
U.S. Dist. LEXIS 37289, at *6-7 (S.D. Ohio May 22, 2007); United States ex rel. Mikes v.
Straus, 846 F. Supp. 21, 23 n.1 (S.D. N.Y. 1994). Defendants explained in their Motion to
Unseal why, under this balancing test, the relevant factors militate in favor of unsealing the
record in the present case.
The Relators’ Opposition neither addresses the two tests that Defendants presented, nor
discusses any other legal standards governing motions to unseal.
RELATORS’ OPPOSITION IS NOT RESPONSIVE TO THE UNDERLYING
The crux of the Relators’ argument is that the Statement of Material Facts that they
prepared and filed with the Court, as well as a number of exhibits they have filed in support of
the Complaint and Amended Complaint, are “categorically privileged and [are] not discoverable
. . . .” Opposition at 3. The Relators rely, however, on law governing the withholding of
- 2 -
Case 1:06-cv-00648-RCL Document 42 Filed 08/04/2008 Page 3 of 5
privileged documents in the context of discovery, rather than law governing lifting a seal on
documents filed in Court.
The primary case on which the Relators’ rely is Miller v. Holzmann, 240 F.R.D. 20 (D.
D.C. 2007). In Miller, the Court denied a motion to compel the production of “a series of
supplemental disclosures to the government” that the relator prepared “to give them to his
counsel to secure legal advice or legal services.” Id. at 21.2 In the present case, the documents
at issue were actually filed with the Court in support of the Relator’s Complaint and Amended
Complaint and, therefore, are part of the Complaint. See Fed. R. Civ. P. 10(c) (“A copy of any
written instrument which is an exhibit to a pleading is a part thereof for all purposes.”). Thus,
Miller is distinct from the present case because the communications subject to privilege in Miller
were confidential records in the parties’ files, rather than parts of pleadings.
Each other case on which the Relators rely involves privileges asserted to resist
production of documents in discovery – none of the cases cited by Relators involves the issue of
unsealing sealed records. See United States ex rel. Purcell v. MWI Corp., 238 F.R.D. 321, 322
(D. D.C. 2006); United States ex rel. Yannacopoulos v. General Dynamics, 235 F.R.D. 661, 662
(N.D. Ill. 2006); United States ex rel. Pogue v. Diabetes Treatment Centers of Amer., No. 99-
3298, 2004 U.S. Dist. LEXIS 18747, *3 (May 17, 2004); United States ex rel. Merck-Medco
Managed Care, LLC, No. 00-CV-737, 2004 WL 868271, *1 (Apr. 21, 2004); United States ex
rel. Bagley v. TRW, Inc., 212 F.R.D. 554, 555 (C.D. Cal. 2003). Thus, because the cases on
which the Relators’ rely are legally and factually distinct from the issue in the underlying motion
– whether to unseal documents filed in court – the Relators’ arguments are unpersuasive.
The decision notes that the documents in question are numbered “34, 35, 40, and 41.” Although it is
unclear to what catalog these numbers belong, review of the docket in Miller via the Court’s PACER
system reveals that the documents in question were not filed in court like the documents at issue in the
- 3 -
Case 1:06-cv-00648-RCL Document 42 Filed 08/04/2008 Page 4 of 5
For the reasons stated above, Defendants respectfully request that the Court grant their
July 16, 2008 Motion to Unseal and lift the seal on all documents filed by the Relators in this
Dated: August 4, 2008
REED SMITH LLP
___/s/ Steven D. Tibbets_______________
Kathleen H. McGuan D.C. Bar No. 358359
Steven D. Tibbets, D.C. Bar No. 495132
1301 K Street, N.W.
Suite 1100 – East Tower
Washington, D.C. 20005
Telephone: (202) 414-9353
Email: [email protected]
Email: [email protected]
Fax: (202) 414-9299
Counsel for Defendants Océ North America,
Océ Imagistics, and Océ-USA Holding, Inc.
- 4 -
Case 1:06-cv-00648-RCL Document 42 Filed 08/04/2008 Page 5 of 5
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing DEFENDANTS’ REPLY
TO RELATORS’ OPPOSITION TO DEFENDANTS’ MOTION TO UNSEAL was served by
electronic mail via the Court’s Electronic Case Filing System on August 4, 2008, on the
Meredith L. Burrell
U.S. Department of Justice
Commercial Litigation Brach
601 D Street, N.W.
Washington, D.C. 20004
Laurie Weinstein, Esq.
United States Attorney
555 4th Street, N.W.
Washington, D.C. 20001
H. Vincent McKnight, Jr., Esq.
ASHCRAFT & GEREL
2000 L Street, N.W.
Washington, D.C. 20036
David W. Sanford, Esq.
SANFORD, WITTELS & HEISLER, LLP
2121 K Street, N.W.
Washington, D.C. 20037
__/s/ Steven D. Tibbets________________
Steven D. Tibbets, D.C. Bar No. 49512
- 5 -