United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Honorable Richard Mark Gergel United States District Court
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.
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.
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.
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).
Organization / Labeling of Documents
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.
Government shall also file a complete privilege log for all
responsive documents it has withheld on any privilege-related
The Government's ...