United States v. J-M Manufacturing
555 F. App'x 782
10th Cir.2014Background
- J-M Manufacturing, a PVC pipe maker, faced a qui tam False Claims Act suit in California; a jury found J-M liable in 2013.
- During the government’s pre-intervention investigation, the United States retained Microbac in Colorado to test J-M pipe samples; the government later declined to intervene.
- J-M subpoenaed Microbac under Rule 45 for the Microbac test results; plaintiffs and the United States moved to quash the subpoena.
- Magistrate judge initially denied then, after a California “Bifurcation Order” clarified plaintiffs’ “lottery ticket” theory (only some pipes must be nonconforming), quashed the subpoena as work product because a single test had minimal probative value.
- The district court affirmed, holding the Microbac results were protected work product (possibly opinion work product) and that J-M failed to show substantial need to overcome protection.
- J-M appealed the quash order; the Tenth Circuit affirmed, reasoning the tests were protected and J-M did not demonstrate substantial need or that the results would negate cherry-picking allegations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Microbac test results are protected work product | Test results generated for the United States in anticipation of litigation are privileged | Test results should be producible to challenge plaintiffs’ case | Court: Test results qualify as work product; need to show substantial need to overcome protection |
| If ordinary work product, whether J-M showed substantial need | Plaintiffs: single test has minimal probative value under “lottery ticket” theory | J-M: results are essential to defense and rebut plaintiffs’ theory | Court: J-M failed to show substantial need or great probative value; quash affirmed |
| Whether results could rebut cherry-picking allegation | Plaintiffs: Microbac tests don’t reveal J-M’s sample-selection process | J-M: results would contradict plaintiffs’ cherry-picking claims and attack credibility of J-M’s testing | Court: Microbac results unrelated to J-M’s selection process; favorable results consistent with plaintiffs’ theory; no substantial need |
| Whether magistrate and district courts abused discretion in quashing subpoena | Plaintiffs: no abuse; proper application of work-product doctrine and deference to magistrate | J-M: courts ignored new evidence showing plaintiffs abandoned lottery theory | Court: No abuse; discovery agreement showing potential relevance didn’t abandon the theory and did not establish substantial need |
Key Cases Cited
- Murphy v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151 (10th Cir.) (de novo review for correct legal standard in discovery disputes)
- Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d 695 (10th Cir.) (abuse-of-discretion standard for discovery orders)
- FDIC v. Oldenburg, 34 F.3d 1529 (10th Cir.) (definition of abuse of discretion)
- In re Motor Fuel Temperature Sales Practice Litig., 641 F.3d 470 (10th Cir.) (finality and appealability of discovery orders)
- Hooker v. Cont’l Life Ins. Co., 965 F.2d 903 (10th Cir.) (exception permitting immediate appeal of discovery orders against nonparties)
- In re Qwest Commc’ns Int’l Inc., 450 F.3d 1179 (10th Cir.) (opinion work product is absolutely privileged)
- Tyson Foods, Inc., 262 F.R.D. 617 (N.D. Okla.) (definition/examples of ordinary work product)
- Nat’l Cong. for Puerto Rican Rights v. City of New York, 194 F.R.D. 105 (S.D.N.Y.) (definition of substantial need and probative-value standard)