United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge.
matter is before the Court on a Motion to Compel filed by
Defendants Floyd Calhoun Dent, III, Robert Bradford Johnson,
and Blue Wave Healthcare Consultants, Inc. (the
"BlueWave Defendants"). (Dkt. No. 677.) For the
reasons set forth below, the Motion to Compel is DENIED.
Government has filed a Complaint in Intervention against the
Blue Wave Defendants, LaTonya Mallory, 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 2015.
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.
August 30, 2017, the Government produced a privilege log
identifying 2029 documents as privileged. At a hearing on
September 20, 2017, the Court said that "to the extent
that this privilege log is over-inclusive" and includes
documents that are not responsive to Defendants'
discovery requests, it will "help all of us to pare it
down." (Dkt. No. 664 at 14.) On October 5, 2017, the
Government produced an edited privilege log with
approximately 139 entries. On October 11, 2017, the
government served the Blue Wave Defendants with a list of 557
documents that it removed from the August 30 privilege log
because they were not responsive to any document
BlueWave Defendants filed a Motion to Compel the Government
to produce "Escobar" documents that they
allege the Government may have been withholding among those
557 documents. (Dkt. No. 677-1.) As none of Defendants'
requests for production specifically referred to
"Escobar" documents, the Court asked
Defendants to supplement their Motion to Compel to set forth
the following: (1) the specific request(s) for production
upon which the motion is based; (2) a specific description of
the documents which are sought pursuant to the identified
request(s) for production; and (3) the specific bases the
Defendants assert for arguing that responsive documents have
not been produced by the Government. (Dkt. No. 679.) The
BlueWave Defendants submitted a supplement claiming that no
fewer than twenty-four (24) of their requests for production
"sought the Government's knowledge of the facts
underlying each of their claims of liability" (Dkt. No.
680 at 2-3.) The Blue Wave Defendants claim that each of the
557 documents the Government removed when it pared down its
privilege log may be relevant to their
"Escobar" defense or, if not, they
"are, or may be, responsive to at least one of the
BlueWave Defendants' discovery requests above."
(Id. at 9.) In their supplement, the Blue Wave
Defendants described several groups of documents that the
Government had removed from its privilege log and the bases
for their belief that these documents could be responsive to
one of their requests for production. (Id. at 6-7.)
Government has filed a Response to Defendants' Motion to
Compel claiming that (1) it has produced to Defendants or
listed on its October 5 privilege log all documents in the
August 30 log that are responsive to any request for
production and (2) the 557 documents on the August 30
privilege log that were not produced to Defendants or listed
on the October 5 privilege log are not responsive to any
viable request for discovery. (Dkt. No. 685.) The Government
went on to address the four groups of documents that
Defendants identified in their brief as examples of
potentially responsive documents they believed the Government
improperly removed from its privilege log. The Government
described each group of documents, explained why the
documents are not responsive to any viable discovery request,
and, in some cases, explained why those documents may have
been included on the privilege log in the first place (for
example, that the documents were likely identified through
the use of certain search terms to identify responsive
documents but were not, upon close review, actually
responsive to any request). Defendants did not file a reply.
Government has defined "viable" requests as those
that have "survived the past year of objections, lengthy
negotiations, multiple agreements (with the Government and
with third parties), mediation and complicated motions
practice." (Dkt. No. 685 at 2.)
Court then ordered the Government to produce a random sample
(with document identification numbers provided by the Court)
of the documents at issue in order to conduct an in
camera review to determine whether the Government's
descriptions were accurate and, in turn, whether the Court
has any reason to doubt that the Government acted in good
faith when it followed the Court's instructions to pare
down the privilege log.
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). "[A]n
evasive or incomplete disclosure, answer, or response must be