In a case where the government is alleging violations of the False Claims Act and the Anti-Kickback Statute, a Northern District of Mississippi Court rejected the government’s attempt to engage in a “fishing expedition” to support allegations of “unknown wrongs” against “unnamed entities.”See United States v. McKesson Corp., et al., Civil Action No. 2:08CV214-SA-DAS, 2010 WL 4021957 (N.D. Miss. Oct. 13, 2010).
The government alleges that the defendants “devised a scam that would allow Beverly (the nursing home chain) to receive a portion of Medicare payments so long as it utilized MediNet’s services and purchased equipment from McKesson.” The government also made allegations regarding other unnamed nursing homes allegedly engaged in similar schemes with MediNet and McKesson. On the defendants’ motion to dismiss, the Court dismissed allegations regarding unnamed entities because the government had failed to plead those allegations with particularity as required by Rule 9(b) of the Federal Rules of Civil Procedure. The Court had held that “plaintiff would not be allowed to proceed against unnamed entities even in light of the government’s response that it planned to investigate ‘through discovery in this case’ similar kickback schemes.”
Despite this order, during discovery, the government propounded discovery requests and moved to compel defendants to produce documents and answer interrogatories regarding MediNet’s relationships with other unnamed nursing home entities. The Court denied the motion to compel in light of the ruling on the motion to dismiss, reasoning “the court finds the plaintiff has not produced evidence sufficient to convince the court that it is on anything other than a fishing expedition… As the defendants point out, the pleading requirements of Rule 9 and the standard applied exist to prevent plaintiffs from filing baseless claims then attempting to discover unknown wrongs… If the plaintiff cannot meet the demands of Rule 9, it follows, therefore, that they may not conduct discovery to find ‘unknown wrongs.’”