Bеfore the court is defendant TRW Inc.’s motion to compel plaintiff United States of America (“the government” or “plaintiff’) and relator Richard D. Bagley (“relator”) (collectively, “plaintiffs”) to produce several disclosure statements prepared by relator and his counsel and provided to plaintiff in compliance with the False Claims Act (the “Act”). See 31 U.S.C. § 3730(b)(2). The court has considered the papers filed by the parties (including the supplemental papers filed as recently as September 2002), and the arguments made by counsel during the hearing on the motion.
Section 3729 of the Act prohibits the knowing presentation of a false claim for payment to an officer or employee of the government. See 31 U.S.C. § 3729(a). The Act authorizes a person (the relator) to file a civil action alleging a violation of section 3729 on behalf of the person and the government. See 31 U.S.C. § 3730(b)(1). The Act, however, requires that the person serve on the government a “written disclosurе of substantially all material evidence and information the person possesses” along with a copy of the complaint. 31 U.S.C. § 3730(b)(2). The purpose of the written disclosure requirement “is to provide the United States with enough information on alleged fraud to be able to make a well reasoned decision on whether it should participate in the filed lawsuit or allow the relator to proceed alone.” United States ex rel. Woodard v. Country View Care Center, Inc.,
New reported decisions construe the nature and extent of the relator’s disclosure obligation under section 3730(b)(2). See, e.g., United States ex rel. Made in the USA Foundation v. Billington,
Of the two views, the one favoring inclusion of analysis as well as facts seems more consonant with the purpose of section 3730(b)(2). As one commentator has observed, courts construing section 3730(b)(2) to permit only factual disclosures
overlook the fact that the Disclosure Statement is much more than a mere recitation of evidence. Ideally, the Disclosure Statement distills often complex facts and law into a narrative statement intended to inform the government of the nature of the claims the relator asserts оn its behalf. There is no support for the suggestion that Congress intended otherwise. As one of the authors of the 1968 amendments to the False Claims Act stated:
The law that we vote on today is intended to encourage a working partnership between both the Government and the qui tam plaintiff. The public will be served by having more legal resources brought to bear against those who defraud the Government____ This is precisely what the law is intended to do: deputize ready and able people who have knowledge of fraud against the government to play an active and constructive role through their counsel to bring to justice those contractors who overcharge the government.
It promotes, rather than undermines that congressional purpose if the Disclosure Statement provides the Justice Department with a complete analysis of the factual and legal issues in the case.
Havian, supra, at L-13 (quoting 132 Cong. Rec. H9388 (October 7, 1986) (statement of Representative Berman)); see also S. Report
A relator preparing a disclosure statement today, however, is in a bind. In one sense it is in the relator’s selfish best interest to make his or her disclosure statement as complete, well-organized, and persuasive as possible. Otherwise, the relator runs the risk that the government may decline to intervene (in which case the expense and burden of prosecuting the action alone may be prohibitive for the relator), or that the government may move to dismiss the action on one of the grounds enumerated in the statute. The inadequacy of the relator’s disclosure is one such ground for dismissal. See 31 U.S.C. § 3730(b)(2) & (e); Made in the USA Foundation,
No such bright-line rule shielding disclosure statements from discovery presently exists. The Act itself does not explicitly prohibit discovery of disclosure statements. See O’Keefe,
Plaintiffs contend, however, that disclosure statements are protected from discovery by the attorney work product doctrine. See Fed.R.Civ.P. 26(b)(3). In response, defendant argues that disclosure statements do not qualify as attorney work product, and that even if they did, defendant has demon
Rule 26(b)(3) of the Federal Rules of Civil Procedure provides, in relevant part:
[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivаlent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
Fed.R.Civ.P. 26(b)(3); see Griffith v. Davis,
Most courts considering the application of the attorney work product doctrine have held that disclosure statements prepared pursuant to section 3730(b)(2) were work product because they were prepared “in anticipation of litigation.” See Burroughs,
The first issue arises from the dual function served by disclosure statements. Although disclosure statements undoubtedly are prepared “in anticipation of litigation,” they also are prepared for another purpose: to satisfy the statutory disclosure requirement which is a prerequisite to suit. If a document is created both in anticipation of litigation and for a distinct, unrelated purpose, the “policies that inspire the work product doctrine are wholly inapplicable” because the document “would have been generated whether or not litigation was pending ____” Griffith,
The second issue is whether relators waive work product protection when they provide disclosure statements to the government. A “primary function” of the work product doctrine “is to prevent a current or potential adversary in litigation from gaining access to the fruits of counsel’s investigative and analytical effort, and strategies for developing and presenting the client’s case.” Burroughs,
At the time a disclosure statement is prepared pursuant to section 3730(b)(2), the government has not intervened and is not a co-party. The government may decline to intervene, and it subsequently may take actions adverse to the relator, such as moving to dismiss or contesting the relator’s share of any recovery. Nonetheless, it would be antithetical to the language and purposes of the Act to characterize the government as an adversary or potential adversary of the relator at the time when the required written disclosure occurs. As one court observed:
[B]y the very language of the [Act], Congress has made it clear that it intended to align the interests of the relator with the interests of the government in these cases. By allowing the relator to bring the action “in the name of the Government” and by allowing the relator to receive a percentage of the proceeds that the government recovers, the legislature left no doubt that the relator is acting on behalf of the government. Indeed, the [qui tarn] plaintiff and the government essentially stand in the same shoes as against the defen-dants____ Additionally, the statute promotes only those cases in which the government works together with the relator
Purcell,
Although the government clearly is not intended to be adverse to the relator, there is some indication that the government occasionally may provide a disclosure statement to a defendant. See Havian, supra, at L-17. [See also United States’ Response to Request for Supplemental Information Regarding United States’ Past Production and Use of Relators’ Disclosure Statements (“Plaintiffs Supplemental Response”) at 1-3]. In its Supplemental Response, the government maintains that “(1) relators’ disclosure statements аre very rarely produced by the United States to defendants absent a Court Order or the permission of the relator and (2) relators’ disclosure statements are, on rare occasions, used adverse to the relators’ interests.” [Plaintiffs Supplemental Response at 2-3]. Examples of uses adverse to the relator are: (a) to justify the government’s position in a dispute over the relator’s share of a recovery, (b) to demonstrate that the relator is not the “original source” of the information alleged in the complaint, and (c) to demonstrate that the relator’s complaint should be dismissed for failure to state a claim. [See Plaintiffs Supplemental Response at 2]. Although nothing of the sort has happened in this case, the court has no way of knowing precisely how frequently the government makes use of disclosure statements in a manner adverse to the relator, or, perhaps more to the point, how often such adverse use results in their disclosure to a defendant before liability has been determined.
As explained above, however, the relator and the government are not adverse when the required disclosure occurs, and one of the purposes of the Act is to ally relators with the government to uncover and reme
This result is consistent with several decisions holding that the “common interest” or “joint prosecution” doctrine applies tо prevent the relator’s disclosures of work product (including the written disclosure statement) to the government from operating as a waiver. See Medica-Rents Co.,
Defendant has represented, however, that plaintiffs already have provided defendant with redacted versions of the disclosure statements regarding three of plaintiffs’ claims. [See Joint Stipulation at 2], To the extent that the government or relator already has produced any disclosure statements to defendant, whether in whole or in part (such as in redacted form), plaintiffs have waived work product protection as to the portions already revealed to defendant.
Although the disclosure statements qualify as work product, the level of protection from disсlosure depends on whether they are characterized as “opinion” work product, “ordinary” work product, or both. The disclosure statements in this case were prepared by relator and his counsel. [See Declaration of Jeffrey Wexler in Opposition
Analysis of the second and third components is unproblematic. The second cоmponent — legal analysis and opinion — plainly constitutes opinion work product because it consists of the “mental impressions, conclusions, opinions, or legal theories” of relator and relator’s counsel, and therefore should be absolutely protected from disclosure. See Fed.R.Civ.P. 26(b); Burroughs,
Analysis of the first component — the narrative — is more challenging. At a minimum, the narrative is “ordinary” work product entitled to qualified protection, but it arguably merits the even greater, nearly absolute protection afforded to opinion work product. Where the selection, organization, and characterization of facts reveals the theоries, opinions, or mental impressions of a party or the party’s representative, that material qualifies as opinion work product. See Burroughs,
In connection with a prior motion to compel discovery in a related case, defendant relied on this same principle whеn it argued that the government should not be permitted to copy or record the documents which defendant selected for copying from among the documents the government produced in response to defendant’s discovery requests. [See Order filed December 8, 1998, in United States ex rel. Bagley, CV 94-7755 AHM (AJWx) (“Bagley 7”), at 1 (attached as Ex. 1 to the Declaration of Eric Havian in Opposition to Motion to Compel)]. In granting defendant’s motion for a protective order, the court noted that there was no controlling authority on point and that persuasive au
the selection of documents does convey information about an attorney’s mental impressions or strategy pertaining to a ease, and therefore constitutes opinion work product, although the extent to which it does so varies from case to case. Sometimes the light shed on the mental impressions of counsel by disclosure will be so dim as to be de minimis, and reasonably may be subordinated to practical concerns. In the circumstances of this case, the document production procedure insisted upon by the government would reveal the opinion work product of TRW’s counsel and give the government a free ride on the effort and investment of TRW’s counsel in reviewing and selecting documents and in preparing TRW’s defense.
[Order filed December 8, 1998, in Bagley I at 1-2]. See also Shelton v. American Motors Corp.,
The principles set forth in the December 8, 1998, order apply not just to the selection and organization of documents, but also to the selection, organization, and characterization of the facts marshaled in support of relator’s claims in the disclosure statements. If defendant’s selection of documents constitutes opinion work product, then the more subjective and analytical process of culling, organizing, and summarizing the factual information presented in relator’s disclosure statement deserves the same level of protection. Cf. Montrose Chemical Corp. of California v. Train,
Contrary to defendant’s assertion, the statutory requirement that relators disclose “substantially all material evidence and information” does not mean that disclosure statements are “kitchen sink” documents that indiscriminately catalogue the universe of facts known to the relator (and which therefore could not possibly reveal opinions, theories, or mental impressions). The statute calls fоr disclosure of “substantially all” of the “material” facts and evidence in the relator’s possession. To meet that obligation, the relator and his 6r her counsel must engage in a process of selecting and winnowing from the totality of information known to the relator only those facts and evidence that are material to the relator’s legal claims. Therefore, the factual narratives in the disclosure statements reveal “the mental impressions, conclusions, opinions, or legal theories of’ the relator and his or her counsel. See Fed.R.Civ.P. 26(b)(3). For these reasons, the court concludes that the disclosure statements prepared by relator and his counsel in this case (excluding pre-existing documents attached as exhibits thereto) constitute opinion work product.
Treating all portions of disclosure statements (except, of course, any exhibits thereto) as opinion work product makes sense for other reasons as well. One problem with
On the other hand, classifying disclosure statements as opinion work product — which means they almost never will have to be turned over to the defendant — encourages relators to include everything that might help the government in evaluating the case, secure in the knowledge that whatever is written will not be seen by the defendant. It also spares the parties the burden and expense of litigating the discoverability of disclosure statements (or portions thereof), and eliminates the need for judicial in camera review of proposed redactions.
Defendant contends that production of the disclosure statement concerning the Medium Launch Vehicle III (“MLV III”) should be compelled because relator used it to refresh his recollection before testifying at his deposition, even if the work product doctrine otherwise would protect that document from discovery.
Rule 612 of the Federal Rules of Evidence states that
if a witness uses a writing to refresh memory for the purpose of testifying, either— (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
Fed.R.Evid. 612. Rule 612 applies to deposition testimony. See Fed.R.Civ.P. 30(c) (“Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615.”); Sporck,
Relator admitted that he reviewed the MLV III disclosure statement in preparation for his deposition, and he conceded that it refreshed his recollection regarding matters about which he testified. [See Defendant’s Supplemental Memorandum at 3-5; Declaration of James E. Gauch in Support of Motion to Compel, Ex. A at 5 (excerpt of deposition testimony of Richard D. Bagley); Declaration of Richard D. Bagley in Opposition to Motion to Compel at 3]. Relator’s use of that document to refresh his recollection prior to testifying during his deposition amounts to a limited waiver of work product protection, and production of the MLV III disclosure statement is warranted. See United States v. Nobles,
Defendant also contends that although relator recalled reviewing only the MLV III disclosure statement in preparation for his deposition, “it is impossible to be sure” that he did not review others, and that relator’s “counsel doubtless can represent whether [relator] reviewed any” others. [Defendant’s Supplemental Memorandum at 4-5]. Because defendant has not satisfied the first two foundational elements required by Rule 612, see Sporck,
For the reasons explained above, defendant’s motion to compel is granted in part and denied in part. The disclosure statements are opinion work product. Except as to (1) the MLV III disclosure statement, and (2) any disclosure statement (or portion thereof) already revealed to defendant, plaintiffs have not waived work product protection as to the disclosure statements, and defendant has not shown that rare or compelling circumstances exist that might justify abrogating the nearly absolute protection accorded opinion work product. See Holmgren,
IT IS SO ORDERED.
Notes
. Prior to its amendment in 1986, the Act provided that if the government did not intervene, "the court shall dismiss an action brought by the person on discovering the action is based on evidence or information the Government had when the action was brought.” See Historical and Statutory Note foil. 31 U.S.C. § 3730; Woodard,
Contrary to defendant's argument, former subsection (b)(4) is inapplicable because "Congress amended the [Act] in 1986 ... to permit qui tarn suits based on information in the Government's possession, except where the suit was based on information that had been publicly disclosed and was not brought by an original source of the information.” Hughes Aircraft Co. v. United States ex rel. Schumer,
To the extent that defendant argues thаt discovery of the disclosure statements should be allowed to enable a defendant to challenge a relator’s standing, that argument is rejected. First, defendant does not argue that any bar enumerated in section 3730(e) applies to this case. Second, defendant has cited no controlling authority to support its position, and the court is not aware of any. Third, the relator’s disclosure obligation "inures to the benefit of the government,” not to the benefit of the defendant. Stinson, Lyons, et at.,
. In one unreported decision, United States ex rel. Taxpayers Against Fraud v. Litton Systems, Inc., CV 88-2276 (C.D.Cal.1990), the court held that the relators' written disclosures were protected both by the work product doctrine and the attorney-client privilege.
. In Bums, the court prefaced its discussion of the attorney work product doctrine by stating that the disclosure statement was not "attorney work product.” The court's analysis, however, suggests that it concluded that the statement was factual work product, but nevertheless was discoverable because of the defendants’ showing of
. In Robinson,
. Although a similar argument might be made about the optimal classification of work product as either "opinion” or "ordinary” in other contexts, the desirability of promoting the purposes the section 3730(b)(2) makes the argument more compelling in the False Claims Act context.