by Ben Vernia | February 13th, 2010
On February 4, Chief Judge B. Lynn Winmill of the District of Idaho granted the defendants’ motion to compel the production of internal DOJ Fraud Section documents, contingent on the outcome of a Daubert hearing.
The case is a declined qui tam brought by two whistleblowers against a rehabilitation group and a medical center, alleging Medicare fraud. The Relators offered the expert testimony of former Fraud Section Senior Trial Counsel Ron Clark regarding the measurement of damages in the case. The defendants served a subpoena for production of documents on the Department of Justice, seeking a copy of the Civil Fraud Monograph – an internal DOJ treatise on the False Claims Act – as well as suit authority memos Mr. Clark had worked on while at the Department; Mr. Clark had referred to both sets of documents as relating to the basis for his expert opinion. When the US refused to produce the documents, the defendants moved to compel their production.
The Court rejected the Government’s arguments against production, reasoning that although Mr. Clark left DOJ more than 15 years ago and had not consulted the documents specifically before forming his opinion, the defendants were entitled to them in order to cross-examine the documents. The Court also rejected DOJ’s assertion that the documents were privileged, reasoning that the US stood to benefit from the relators’ suit, and that the disclosure requirements of Fed. R. Civ. P. 26(a)(2)(B) trumped any privilege.
Recognizing, however, that the defendants also had substantial arguments on Daubert grounds to exclude the testimony altogether, the Court stayed the production pending the outcome of a hearing on those arguments.
