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United States v. Berkeley Heartlab, Inc.

United States District Court, D. South Carolina, Charleston Division

April 27, 2017

United States of America, et al, Plaintiffs,
v.
Berkeley Heartlab, Inc., et al, Defendants. Ex rel Scarlett Lutz, et al, Plaintiffs-Relators,

          ORDER AND OPINION

          Honorable Richard Mark Gergel United States District Court Judge

         This matter is before the Court on Defendant Floyd Calhoun Dent, Ill's motion to compel the Government to provide complete production with respect to several of his Requests for Production ("RFPs"), including RFP Nos. 1-11, 14-21, 23-31, 33-48, 51-52, 54-55, 57-58, 60-61, 67, 69-70, 72-73, 75-80, 83-86. (Dkt. No. 351 at 6.) For the reasons set forth below, the motion to compel is granted in part and denied in part.

         I. Background

         The Government has filed a complaint in intervention against Defendants BlueWave Healthcare Consultants, Inc. ("BlueWave"), Floyd Calhoun Dent, III, LaTonya Mallory, Robert Bradford Johnson, and others alleging violations of the Anti-Kickback Statute ("AKS"), 42 U.C.S. § 1320(a)-7b(b)(1)(A) and False Claims Act, 31 U.S.C. §§ 3729-3733 ("FCA"). (Dkt. No. 75.) The alleged FCA violations arise from Blue Wave's marketing of laboratory tests for two laboratory companies, Health Diagnostic Laboratory, Inc. ("HDL") and Singulex, Inc. ("Singulex"), between 2010 and 2014. The Government has alleged that Defendants violated the FCA when they orchestrated multiple kickback schemes to induce physicians to refer blood samples to HDL and Singulex for large panels of blood tests, many of which were medically unnecessary. The Government alleges that the kickback schemes violated the Anti-Kickback Statute, resulted in false claims submitted to the Medicare and TRICARE programs, and caused the Government to pay HDL more than $330 million.

         II. Legal Standard

         Rule 26(b)(1) of the Federal Rules of Civil Procedure outlines the scope of discovery in a civil case:

[U]nless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

         Rule 34 allows a party to serve on another party a request for production as to any matter "within the scope of Rule 26(b)" as outlined above. Fed.R.Civ.P. 34(a). Parties' objections to document production requests must be stated with particularity and specificity; objections may not be "boilerplate." Fed.R.Civ.P. 33(b)(4). "A party must produce documents as they are kept in the ordinary course of business or must organize them to correspond to the categories in the request." Fed.R.Civ.P. 34(b)(2)(E)(i). Rule 37(a)(3)(B) allows a party seeking discovery to move for an order compelling production or answers against another party when the latter has failed to produce documents requested under Rule 34. Fed.R.Civ.P. 37(a)(3)(B)(iii)-(iv). "[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed.R.Civ.P. 37(a)(4).

         III. Discussion

         I. Organization / Labeling of Documents

         Dent asserts that the Government has unfairly failed to organize and label documents to clearly indicate which documents it has produced in response to each particular RFP. (Dkt, No. 383 at 2.) The Government argues that doing so would be unduly burdensome for the over 2 million pages of documents it has produced. The Court is concerned that the Government is comfortable claiming that it has fully complied with a number production requests while at the same time arguing that it would be "impossible" for it to produce a record of which documents it has produced in response to each RFP, (Dkt. No. 380 at 5.) It is reasonable and fair for the Government to make clear which documents it is producing in response to which RFP. Dent has indicated that an index of which Bates-numbered documents are responsive to each RFP would be an appropriate approach (Dkt. No. 383 at 3), and this Court agrees. The Government is therefore ordered to produce an index of which Bates-numbered documents it has produced in response to each RFP.

         II. Privilege Log

         The Government shall also file a complete privilege log for all responsive documents it has withheld on any privilege-related ground.

         III. The Government's ...


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