A recent decision from the District of Minnesota denied the government’s appeal of a federal magistrate judge’s order requiring that, as part of discovery, the government detail specific false claims and turn over notes and reports of witness interviews. The underlying case is a qui tam alleging that Precisions Lens and its founder provided kickbacks to physicians to induce the use of its eye surgery products.

The U.S. Attorney’s Office intervened in the case in August 2017, but the FBI had started investigating Precision Lens as early as 2012, before the qui tam was filed. The FBI and the U.S. Attorney’s Office did not begin to coordinate until approximately 2014. Earlier this year, after the qui tam was unsealed, Precision Lens sought to compel discovery, including seeking an order to compel the government to identify and detail each alleged false claim prior to the close of discovery, and seeking an order to compel the government to produce all reports and notes of witness interviews prepared during the investigation. A discovery fight ensued.

In April 2019, the magistrate judge issued an order recommending that the defendants’ motion be granted. With respect to the witness interview notes and reports, the judge stated that the U.S. Attorney’s Office “did not become meaningfully involved in the investigation until 2014,” and that the government did not satisfy its burden to demonstrate that the work-product doctrine should protect the materials prepared prior to 2014, when the FBI began to coordinate its investigation with the U.S. Attorney’s Office handling the qui tam. For interview notes and reports prepared after 2014, the judge concluded that while the work product privilege could apply, Precisions Lens “demonstrated both substantial need and the inability to otherwise obtain the information without undue hardship” as required to obtain discovery of fact work product. In order to determine if the notes and reports contained fact work product, as opposed to protected opinion work product, the judge ordered an in camera review.

The government appealed the federal magistrate ruling, arguing that it was “clearly erroneous and contrary to law.” However, on July 19, Judge Wright affirmed the magistrate’s recommendation. With respect to the order that the government specify specific false claims, Judge Wright was unpersuaded by the government’s argument that doing so would be “laborious” and “time-intensive,” stating that the government could always request a time extension if needed. With respect to the witness interview notes and reports, the judge agreed with the magistrate that the government did not meet its burden in proving that the pre-2014 materials were created in anticipation of litigation. The judge further agreed that the government had not shown that the post-2014 materials were protected opinion work product, as opposed to fact work product that may be discoverable. The government argued that because an Assistant U.S. Attorney was involved in the witness interviews beginning in 2014, all interview materials post-2014 should be considered opinion work product, but the judge concluded that such a “broad, categorical definition” of opinion work product is not correct. Accordingly, the magistrate order requiring in camera review of all applicable materials was upheld.

The recent order provides an important analysis of the work product doctrine and of what investigational materials may be considered discoverable in False Claims Act cases. The case is U.S. ex rel. et al. v. Sightpath Medical, Inc. et al., case number 0:13-cv-03003, in the U.S. District Court for the District of Minnesota. A copy of the magistrate judge’s report and recommendation can be found here, and a copy of the district court’s ruling can be found here.