Opinion
Civil Action No. 4:00-CV-483-Y consolidated with Civil Action No. 4:01-CV-198-Y
June 21, 2002
ORDER DENYING DEFENDANTS' REQUEST FOR RECONSIDERATION OF THE FEBRUARY 19, 2002 ORDER
Pending before the Court is the defendants' request for reconsideration of this Court's February 19, 2002, order, which the Court will construe as a motion for reconsideration. Having carefully considered the motion, response, and reply, the Court concludes that the motion should be DENIED.
On August 21, 2001, Defendants filed a motion to compel, challenging the United States of America ("United States")'s withholding of many documents and the relators' refusal to answer deposition questions. The magistrate judge subsequently issued an order requiring the United States to produce the disputed documents for an in-camera review. On December 11, the magistrate judge issued an order denying the defendants' motion to compel. Subsequently, the defendants filed their objections to the magistrate judge's order. The Court, on February 19, overruled the defendants' objections for two reasons: (1) the objections were not timely filed and (2) the defendants had not shown that the magistrate judge's order was clearly erroneous.
The defendants claimed that they needed the disputed documents in order to learn "the facts upon which the United States relied when it decided to decline to intervene in the False claims Act lawsuit and instead to sue defendants on contract theories." (Defs.' Mot. to Compel at 2.)
The Court, in an order dated November 7, referred the defendants' motion to compel to Magistrate Judge Charles Bleil.
In their request for reconsideration, the defendants claim that their objections pursuant to Federal Rule of Civil Procedure 72(a) were timely filed because December 24 was declared a legal holiday by President George W. Bush and so cannot be counted within the ten-day period that the defendants had to file their objections. In addition, the defendants argue that the magistrate judge's order was clearly erroneous because it "does not contain any legal or factual reasons supporting the decision to deny the defendants' motion to compel." (Defs.' Request for Reconsideration at 3.)
Rule 72(a) of the Federal Rules of Civil Procedure ("FRCP") states:
Nondispositive Matters. A magistrate judge to whom a pretrial matter not dispositive of a claim or defense of a party is referred to hear and determine shall promptly conduct such proceedings as are required and when appropriate enter into the record a written order setting forth the disposition of the matter. Within 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made. The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law.
In light of the evidence that December 24 was declared a legal holiday, the Court agrees with the defendants that their objections were timely filed. However, the Court, after once again reviewing the disputed documents in camera, concludes that the magistrate judge's order was not clearly erroneous. The first issue is whether the documents are privileged under the work-product doctrine, attorney-client privilege, or some other applicable privilege. The work-product doctrine, which is contained in Federal Rule of Civil Procedure 26(b)(3), states:
[A] party may obtain discovery of documents prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
In this case, the work-product doctrine clearly applies to the disputed documents as they are either memoranda written from one or both of the relators to the United States and its representatives or were summaries or "follow-ups" to meetings between the relators and the United States and its representatives during the time in which the United States was deciding whether to intervene in the case. As such, they are documents prepared by a party in anticipation of litigation or for trial. See United States v. Burroughs v. DeNardi Corp., 167 F.R.D. 680, (S.D. Calif. 1996). Furthermore, the joint prosecution privilege extends the work-product doctrine to "protect communications between an individual and an attorney for another when the communications are part of an on-going and joint effort to set up a common defense strategy." Burroughs, 167 F.R.D. at 685. Consequently, the relators' disclosure of the above-listed documents to the United States, a co-party, did not result in a waiver of the work-product doctrine. Id.
Because the work-product doctrine applies in this case, the Court will not address the issue of whether the attorney-client privilege or some other privilege is also applicable.
The work-product doctrine extends to documents prepared for litigation or trial by the adverse party himself. See Aiken v. Texas Farm Bureau Mutual Insurance Co., 151 F.R.D. 621, 624 n. 4 (ED. Tex. 1993).
"Courts have held that while the joint defense privilege is an extension of the attorney-client privilege, it also applies to the work-product doctrine." Burroughs, 167 F.R.D. at 685.
Even though the work-product doctrine applies, the defendants may still be able to obtain privileged documents if they can show a substantial need for particular documents and an inability to obtain them, without undue hardship, through any other means. See Fed.R.Civ.P. 26(b)(3); Burroughs at 684. After reviewing the documents, the Court is not convinced that the defendants have a substantial need for them because they do not contain information that appears to be of any help in determining what facts the United States relied upon in deciding not to intervene in the relators' case against the defendants. In addition, the information contained in the documents could have been readily obtained through other means. Consequently, the defendants' motion for reconsideration should be DENIED.
The Court is aware that during many depositions taken by the defendants, the plaintiffs' attorneys instructed the plaintiffs and its witnesses not to answer questions asked by the defendants that related to conversations between the government and its witnesses. However, because the information contained in the disputed documents appears to relate to underlying information that was personally known or alleged to be personally known by the relators, any discoverable information should have been easily obtained (and probably was obtained) through other means of discovery.
Based upon the foregoing, it is ORDERED that the defendants' motion for reconsideration [doc. #131-1] is DENIED.
The documents that the United States submitted for in-camera review are being returned to the U.S. Attorney's Office with this order.