United States District Court, D. South Carolina, Charleston Division
United States of America, et al, Plaintiffs, ex rel. Scarlett Lutz, et al., Plaintiffs-Relators,
Berkeley Heartlab, Inc., et al., Defendants.
ORDER AND OPINION
Richard Mark Gergel, Judge
matter is before the Court on Defendant Latonya Mallory's
motion to compel the Government to respond fully to
Mallory's first set of Requests for Production
("RFPs"). (Dkt. No. 406.) For the reasons set forth
below, the motion is granted in part and denied in part.
Government has filed a complaint in intervention against
Defendants Blue Wave Healthcare Consultants, Inc.
("BlueWave"), Floyd Calhoun Dent, III, and others
alleging violations of the False Claims Act
("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 engaged in 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) outlines the scope of discovery in a civil case:
Unless 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 usual course of
business or must organize and label 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).
has indicated that most of the issues raised in her motion to
compel have been resolved, but she is still pursuing
discovery with regard to RFP Nos. 3, 12, 22, 25, 26, 27, 28,
29, and 30. (Dkt. No. 467.)
RFP No. 22
RFP No. 22 seeks "all documents related to each and
every 'medically unnecessary' test as alleged in the
complaint." (Dkt. No. 406-1 at 10.) The Government has
represented that it is "producing all non-privileged
documents that are reasonably responsive to this
request." (Dkt. No. 406-2 at 16.) In her Reply brief,
Mallory does not provide the Court with any details about
which documents she believes the Government is still
withholding and why the Court should compel it to produce
those documents. The Court therefore assumes that RFP No. 22
was included in Mallory's reply brief due to a
scrivener's error. The motion to compel as to RFP No. 22
is denied without prejudice.
RFP Nos. 28 and 29
RFP No. 28 seeks "documents issued by the OIG, CMS, DOJ
or the Government prior to June 25, 2014 specifically
concluding the payment of P&H fees to physicians was an
actual violation of the federal Anti-kickback Statute"
and/or the federal False Claims Act. Mallory's RFP No. 29
seeks "all documents issued by the OIG, CMS, DOJ or the
Government prior to June 25, 2014 specifically referencing
the payment of P&H fees to physicians as potentially
violating the federal Anti-kickback Statute" or the
federal False Claims Act. (Dkt. No. 406-1 at 11.) The
Government initially interpreted the term "issued
by" as used in these requests to mean documents that
were formally issued or published, and the Government asserts
that it has produced all publicly available documents in
response to these requests. (Dkt. No. 470 at 2.) Mallory has
since clarified that she seeks internal government
communications that are responsive to the request.
plain meaning of "issued" is to distribute,
publish, or put out. While it is possible that an
organization could issue a formal communication internally,
in this case, Mallory's request is not reasonably
interpreted to refer to an agency's internal issuance of
formal directives. Further, the term would never be used to
refer to communications in general among employees within an
organization; one does not "issue" an email to his
colleague. For this reason, the Court finds that the
Government has complied with Mallory's RFP Nos. 28 and 29
by producing responsive documents that have been
"issued." Mallory's request for internal
government communications is a new discovery request that
must be pursued in accordance with this Court's May 1,
2017 Order pertaining to new motions to compel. (Dkt. No.
RFP No. 25
RFP No. 25 seeks documents in which "any attorney, law
firm and/or Government agency has opined on the legality of
the payment of P&H fees to physicians by any lab."
(Dkt. No. 406-1 at 11.) This request is identical to
Defendant Dent's RFP No. 30, which the Court ruled on in
a previous order. (Dkt. No. 428 at 9-10.) In that Order, the
Court explained that the documents targeted by this request
(i.e., opinions on the legality of P&H fees) are
privileged and that the Government ...