United States District Court, District of Columbia
UNITED STATES ex rel. LANDIS, Plaintiffs,
TAILWIND SPORTS CORP., et al., Defendants.
OPINION AND ORDER
CHRISTOPHER R. COOPER, District Judge.
Before the Court is Defendant Lance Armstrong's Motion to Compel Production of Documents in response to his First Set of Requests for Production of Documents to Plaintiff United States [ECF No. 190]. Upon consideration of the motion, the oppositions and reply, and the supplemental briefs and responses, the Court will grant the motion in part and deny it in part. The Court's reasoning follows.
In June 2010, Relator Floyd Landis filed this qui tam action against Lance Armstrong, his former teammate on the United States Postal Service (USPS) professional cycling team, and associated defendants. After closing a criminal investigation of Armstrong in the Central District of California, the Government intervened in this case in February 2013. The case is now in discovery. Armstrong filed the present motion on July 3, 2014. The case was reassigned to this Court five days later.
As will be discussed further, one of the issues presented in Armstrong's motion is whether he is entitled to the production of witness interview memoranda prepared by law enforcement agents during the criminal investigation. The government inadvertently produced a substantial number of these memoranda. Armstrong attached one of them to his motion to compel, which the government promptly moved to have sealed. The Court granted the government's motion pending the resolution of Armstrong's motion to compel and the entry of an order governing the use of inadvertently produced discovery material. On August 5, 2014, the Court held a teleconference with the parties to discuss the motion to compel and the inadvertent production order, as well as a proposed protective order and a proposed order regarding privilege logs. During the teleconference, the Court requested supplemental briefing on Armstrong's requests for the witness interview memoranda and grand jury transcripts from the criminal investigation. After receiving the supplemental briefing, the Court held a hearing on September 15, 2014 addressing the motion and proposed orders. The Court entered the inadvertent disclosure order, protective order, and privilege log order that day. It now turns to Armstrong's motion to compel.
Armstrong moves to compel production of 11 categories of documents over the Government's objections. The Court will address each category in the order of Armstrong's requests in turn.
A. Request No. 9: USPS Attendance at Professional Cycling Events
In Request No. 9, Armstrong seeks documents reflecting attendance of USPS personnel at team cycling events. The Government opposes the request as overly burdensome insofar as it would require the Government to search the files of all USPS employees for responsive documents. The Government indicated at the hearing that it will search the calendar entries of the USPS personnel involved in the team sponsorship who may have attended events identified by Armstrong. The Court concludes that the Government's proposed approach is adequate.
B. Request No. 10: Relator's Written Disclosure
Request No. 10 seeks Landis' written qui tam disclosure to the Government. Landis has agreed to "produc[e] the vast majority of the exhibits to the disclosure, " but he objects to the Government producing the disclosure itself because he contends it would reveal attorney-client privileged information that was shared with the Government under a joint prosecution privilege. Landis' Opp'n to Armstrong's Mot. to Compel at 1-2. In other qui tam cases, courts in this district have found that "[s]urrendering privileged documents to the Government" does not waive privilege if "at the time of the surrender the Government and the surrendering party have a common interest in the prosecution of a common defendant." Miller v. Holzmann , 240 F.R.D. 20, 21 (D.D.C. 2007) (citing United States ex rel. Pogue v. Diabetes Treatment Ctrs. of America, No. 99-CV-3298 , 2004 WL 2009413, at *5 (D.D.C. 2004); United States ex rel. Purcell v. MWI Corp. , 209 F.R.D. 21, 26-27 (D.D.C. 2002)). The Court is not persuaded by the sole authority Armstrong cites for the proposition that a relator must reveal his disclosure statement, which is from outside the district. See U.S. ex rel. Stone v. Rockwell Intern. Corp. , 144 F.R.D. 396, 401 (D. Colo. 1992). The Court therefore denies Armstrong's motion to compel production of Landis' disclosure.
C. Request No. 12: U.S. Government Investigation of Doping
Request No. 12 seeks documents obtained by the Government from third parties in the course of its investigation of this case. The Government indicated at the hearing that it would produce these documents once the Court entered a protective order, which the Court has now done. The ...