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United States ex rel Pogue v. Diabetes Treatment Centers of America

June 2, 2006

UNITED STATES EX REL. A. SCOTT POGUE, PLAINTIFF,
v.
DIABETES TREATMENT CENTERS OF AMERICA, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

MEMORANDUM OPINION

This matter comes before the Court on several discovery disputes among the parties. First, defendant Diabetes Treatment Centers of America, Inc. ("DTCA") filed, on November 1, 2005, a motion [1105] and an accompanying memorandum of law to compel Relator to provide full and complete answers to its Second Set of Interrogatories. Relator filed an opposition [1111] on November 14, 2005, and DTCA filed a reply [1118] on December 1, 2005. Relator thereafter filed, on December 16, 2005, a supplemental response and opposition [1124] to DTCA's Second Set of Interrogatories, along with an unopposed motion requesting leave to do so.

Second, on November 21, 2005, DTCA filed a motion [84] and an accompanying memorandum of law to compel the United States Department of Health and Human Services ("HHS") to comply with subpoena for documents and testimony. The United States filed its opposition [94] on December 20, 2005, after filing an unopposed motion [93, 1128] for leave to file an opposition in excess of ten pages and a motion [1117] for leave to late file. DTCA filed its reply [1134] on January 9, 2006, after filing a motion [1132] for extension of time to file its reply, and a motion [1133] for leave to file an opposition in excess of ten pages.

Third, several defendant physicians (the "Atlanta Physicians") jointly filed, on November 21, 2005, a motion [82] to compel Relator to answer interrogatories and respond to requests for production of documents. Relator sought and was granted an extension of time for filing his opposition [95], which he subsequently filed on December 29, 2005. Defendants the Atlanta Physicians filed a reply [96] on January 13, 2006.

Upon a thorough review of each party's filings, the applicable law and the entire record herein, this Court has determined that the motions [93, 1117, 1124, 1128, 1132, 1133] for leave to file motions in excess of ten pages, for leave to late file, and for leave to file a supplemental opposition shall be GRANTED; DTCA's motion [1105] to compel Relator to provide full and complete answers to its Second Set of Interrogatories shall be GRANTED in part and DENIED in part; DTCA's motion [84] to compel HHS to comply with subpoena for documents and testimony shall be DENIED; defendants the Atlanta Physicians' motion [82] to compel Relator to answer interrogatories and respond to requests for production of documents shall be DENIED.

I. BACKGROUND

This qui tam action has been pending for many years. Currently before the Court are two discovery disputes between the parties. Defendant DTCA, a healthcare corporation charged with violating laws governing billing for Medicare procedures, complains that Relator has improperly objected to DTCA's second set of interrogatories. It also alleges that HHS' refusal to provide documents and testimony is improper. Relator and HHS argue that their respective responses to the discovery requests were appropriate.

II. DISCUSSION

A. DTCA's Motion [1105] to Compel Relator to Answer Interrogatories

DTCA served its second set of interrogatories on Relator after the parties agreed that defendant would be permitted ten additional interrogatories. These ten interrogatories sought information about the following: DTCA employees who are suspected of having paid kickbacks, DTCA's treatment of those employees, the physicians who were suspected of receiving kickbacks, the allegation that HHS would have denied the claims had it known of the kickbacks and related actions, the claims that were submitted, and the basis for the Relator's contention that DTCA knowingly violated the False Claims Act. Relator served his responses to the interrogatories on April 11, 2005. DTCA, finding the responses to be inadequate, subsequently wrote Relator three letters in an attempt to resolve the dispute over the interrogatories. Relator did not respond, prompting DTCA to file the instant motion to compel.

After the motion, opposition and reply were filed, Relator filed and served on DTCA a set of supplemental responses which provide further answers to the interrogatories. Since DTCA has not indicated to the Court that it seeks to withdraw its motion to compel in light of the additional responses, this Court shall consider the merits of the motion.

1. General Objections

Relator objects to the interrogatories on several grounds. Generally, he objects that all of the interrogatories are overly broad "contention interrogatories," and that compliance would impose an unreasonable burden. (Relator's Opp'n [1111] 3-7.) DTCA contends that the interrogatories are of reasonable breadth and do not impose an undue burden on Relator. (DTCA's Mem. Supp. [1106] 2-3.) Relator's "boilerplate objections" that the interrogatories were overly broad and unduly burdensome, DTCA argues, fail to justify his refusal to answer them. (Id.)

As to the general objection on the basis of privilege, this Court notes that Relator has foreclosed any challenge to the interrogatories on this ground because of his failure to file a privilege log as required by Fed. R. Civ. P. 26(b)(5), which requires a description of the withheld information or documents that would enable other parties to assess whether the privilege applies.*fn1 See, e.g., Lohrenz v. Donnelly, 187 F.R.D. 1, 6-7 (D.D.C. 1999) (Lamberth, J.) (denying plaintiff's assertion of privilege because of her failure to provide a privilege log as required by the Federal Rules of Civil Procedure). Accordingly, Relator's blanket objections on the basis of privilege shall be rejected. As to the general objection on the grounds of undue burden, this Court notes the well-documented rule that a party objecting to an interrogatory on this basis must explain in detail how the interrogatory is burdensome. See, e.g., Alexander v. FBI, 192 F.R.D. 50, 53 (D.D.C. 2000) (Lamberth, J.) (citing Lohrenz, 187 F.R.D. at 4). Where Relator fails to address specifically how compliance with the interrogatory would burden him, his objections on the ground of undue burden shall be rejected.

The specific objections shall be considered next. In addition to his general objections, Relator objects to each interrogatory on various grounds, including privilege, timeliness, compound form, and as exceeding the total number of allowed interrogatories. DTCA disputes each objection. This Court finds that the interrogatories are deficient in form but not substance; accordingly, the motion to compel shall be denied, but defendant will not be prevented from seeking much of the same information in interrogatories subdivided by this Court. This Court shall discuss each interrogatory in turn.

2. Interrogatory No. 26

Interrogatory No. 26 requests that Relator identify each DTCA medical director that he contends received illegal kickbacks or who was prohibited from referring to DTCA-affiliated hospitals, and requests that Relator "state all facts and identify all documents supporting" his contentions. Relator contends that No. 26 has been answered by his statement that he has "alleged this corporate-run nationwide scheme implicates every hospital and medical director arrangement" (Relator's Opp'n [1111] 7), could be answered by DTCA itself (id. at 7 n.4) and seeks protected work product (id. at 7-8). DTCA argues that Relator's vague theory merely restates the allegations in the complaint and as such is not a sufficient response to the interrogatory. (DTCA's Mem. Supp. [1106] 5-6.) DTCA also argues that the facts underlying Relator's allegations cannot infringe on privilege, and in any event, Relator cannot successfully assert the privilege because he failed to provide a privilege log as required by Federal Rule of Civil Procedure 26(b)(5). (Id. at 4-5.)

This Court finds no legitimate problem with the information sought by No. 26. It does find, however, that the compound form of the interrogatory is improper. Contrary to Relator's objections, the interrogatory may properly seek identification of documents and facts supporting a contention, but it may not do so in a single interrogatory.

It bears noting, as discussed supra Part A.1, that Relator may not rely on the work product doctrine to withhold a response to the interrogatories: he fails to describe the withheld documents or information in detail sufficient to allow other parties to assess the applicability of the privilege. Similarly, Relator cannot rely on his statement that he has answered the interrogatory with his one-sentence restatement of the allegation. This vague statement is wholly inadequate to satisfy Rule 33's directive that interrogatories "shall be answered separately and fully in writing." FED. R. CIV. P. 33(b)(1). Further, Relator's contentions that this interrogatory impermissibly seeks legal arguments or requires Relator to identify which documents he has selected in preparation for trial are unpersuasive. Relator fails to carry his burden of showing that the interrogatory is burdensome or inappropriate, in part because the cases Relator cites in support of his arguments are not analogous to the circumstances giving rise to the instant dispute. Notwithstanding this deficiency, however, Relator will not be compelled to respond to this interrogatory in its compound form.

3. Interrogatory No. 27

This interrogatory asks what facts and documents support the contention that DTCA was aware of the illegal conduct of the medical directors identified in the answer to No. 26. It directs Relator to identify each person who knew, and to explain how they knew, of the violations. Relator objects to this interrogatory only on the grounds already discussed, i.e., that it is overly broad and burdensome and that it seeks attorney work product. (Relator's Opp'n [1111] 8.) For the reasons already discussed, those arguments are rejected. This Court does find, however, that this interrogatory is also impermissibly compound. While the information it seeks is appropriate, the form of the interrogatory is not. Relator will not be compelled to provide an answer to the interrogatory as it is currently phrased.

4. Interrogatory No. 28

This interrogatory asks Relator to identify any medical director that he contends was compensated according to referrals, to describe how the compensation varied, and to state all facts and identify all documents supporting his contention that the compensation varied. Relator objects to this interrogatory, in addition to the general objections, on the grounds that it does not seek relevant information because he need not prove that compensation varied according to referral volume; rather, he need only show that the directors were compensated with the intent to induce referrals. (Relator's Opp'n [1111] 8-9.) This Court finds that the interrogatory inquires into relevant matters, or into matters that may lead to relevant evidence. Whether and how compensation was tied to referrals is certainly relevant to the intent that may be inferred therefrom. Accordingly, under the broad standard for relevance in Federal Rule of Civil Procedure 26(b)(1), its topic is proper.*fn2 Once again, however, this Court finds that the interrogatory is of an impermissible compound form. Relator will not be compelled to provide an answer to the interrogatory as it is currently phrased.

5. Interrogatory No. 29

This interrogatory requests that Relator identify all medical directors who he contends were required by DTCA to admit patients to hospitals affiliated with DTCA and to state all facts and identify all documents supporting his contention. Relator objects to this interrogatory on the basis of relevance, and for the general objections of burden, overbreadth and attorney work product. (Relator's Opp'n [1111] 9.) As with No. 28, this Court finds that the interrogatory seeks relevant information. Relator appears to suggest that this Court should employ a per se rule that defendant may never inquire into evidence that it committed acts beyond the minimum needed to show a violation of the law. This Court finds no basis for such a narrow reading of relevance. As with the other interrogatories, however, this Court finds that the compound form of the interrogatory is inappropriate. Relator will not be compelled to provide an answer to the interrogatory as it is currently phrased.

6. Interrogatory No. 30

This interrogatory seeks identification of medical directors that Relator contends DTCA subjected to adverse employment action because of the number of referrals they made to DTCA-affiliated hospitals. As to each director, it seeks all facts and documents supporting Relator's contention that the adverse employment action was taken, as well as a description of the action taken. Relator argues that this interrogatory seeks information that is equally available to defendants, and objects to it on the general grounds of burden, overbreadth and work product. (Relator's Opp'n [1111] 9-10.) This Court finds that the subject of the interrogatory is ...


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