United States District Court, D. Alaska
UNITED STATES OF AMERICA, ex rel. BEN FERRIS, Plaintiff,
v.
AFOGNAK NATIVE CORPORATION and ALUTIIQ, LLC, Defendants.
ORDER
H.
RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE
Defendants'
Renewed to Compel
Defendants
Afognak Native Corporation and Alutiiq, Inc. renew their
motion to compel relator Ben Ferris to produce unredacted
copies of the disclosure statements that he provided to the
government.[1] This motion is opposed.[2] Oral argument was
not requested and is not deemed necessary.
Background
On June
15, 2015, defendants served their first requests for
production on relator.[3]RFP No. 13 asked relator to produce
“[a]ll documents that constitute, record, or reflect
any disclosure of information that you made to the Government
relating to this lawsuit.”[4] The “Government”
was defined as “the United States government and any of
its agencies, including the SBA and the United States
Department of Justice.”[5]
Relator
had provided two formal disclosures to the government. On May
24, 2013, relator provided a pre-filing disclosure statement;
and on May 24, 2013, he provided his mandatory §
3730(b)(2) disclosure statement. In response to RFP No. 13,
relator produced copies of these two disclosure statements
from which he redacted all the content except for the cover
letters, caption pages, headers, exhibit lists, and signature
blocks.[6]
On June
7, 2017, defendants moved to compel relator to more fully
respond to RFP No. 13.[7] Defendants argued that relator should be
compelled to produce his pre-filing and mandatory disclosure
statements without any redactions. Relator argued that the
content of these documents was protected by the work product
privilege and that he had not waived this privilege because
of the common-interest doctrine.
In an
August 23, 2017, order, the court found that relator had not
waived the work product privilege.[8] As to that privilege, the
court rejected relator's theory that a blanket privilege
applied to all disclosure statements and implied that
relator's disclosure statements could be discoverable as
ordinary work product.[9] However, the court denied defendants'
motion to compel. Although the court found that
“defendants have shown that they have a substantial
need for relator's disclosure statements because the
statements may show whether relator qualifies as an
‘original source[, ]'” the court concluded
that “this information is available by other means,
including by deposing relator.”[10]
Defendants
had deposed relator in July 2017, concluding the deposition
on July 20, 2017. Defendants contend that relator refused to
answer any questions concerning any evidence or information
that he provided to the government. Specifically, relator was
asked if he had ever met with anyone from the SBA and he
responded that he had one meeting with individuals from the
SBA sometime in 2014 in Washington, D.C., that the meeting
involved the allegations in his complaint, and that his
attorneys and attorneys for the Department of Justice and the
SBA were at the meeting, but that he did not remember the
names of anyone.[11] Relator was also asked about his
pre-filing disclosure statement that was provided to the
Department of Justice, but on advice of counsel, he declined
to answer questions about the content of that
statement.[12]
On
February 15, 2018, relator filed his third amended
complaint.[13] In his third amended complaint,
relator's claims were expanded to include non-8(a)
contracts.
On
April 11, 2018, defendants served a subpoena on the SBA, in
which defendants requested that the SBA produce any of
relator's disclosure statements that were in its
possession. The SBA has confirmed that it has in its
possession an email to which relator's mandatory
disclosure statement is attached.[14] But, the SBA has objected
to the production of the email and its
attachments.[15] Defendants have moved to compel the SBA
to produce the email and attachments.[16] Both the SBA
and relator have filed oppositions to this motion to
compel.[17]
On
April 11, 2018, defendants also served their third set of
requests for production on relator.[18] RFP No. 33 asked relator
to produce, if he denied Admission No. 3, “all
Statements of Material Evidence you served on the Government
other than your Original Disclosure and your Pre-Filing
Disclosure” statements.[19] Admission No. 3 asked relator
to admit that he had “not submitted any Statements of
Material Evidence to the Government other than your Original
Disclosure and your Pre-Filing
Disclosure.”[20] RFP No. 34 asked relator to produce, if
he denied Request for Admission No. 4, “all supplements
to your Original Disclosure and Pre-Filing Disclosure that
you served on the Government.”[21] Request for Admission No.
4 asked relator to admit that he had “not supplemented
your Original Disclosure or your Pre-Filing
Disclosure.”[22]
On May
17, 2018, relator responded to defendants' third set of
requests for production.[23] Relator stated that RFP Nos. 33 and
34 were “inapplicable at the present time, as [r]elator
has not responded to” Request for Admission Nos. 3 and
4.[24] Relator had not responded to Request for
Admission Nos. 3 and 4 because he had moved for a protective
order quashing defendants' First Set of Requests for
Admission, [25] and that motion was still pending on May
17, 2018.
On June
4, 2018, the court entered its order on relator's motion
to quash, and relator was ordered to answer, among others,
Request for Admissions Nos. 3 and 4.[26] On June 25, 2018, in a
telephonic meet and confer, relator agreed “to provide
an amended response to RFP Nos. 33 and 34 that incorporate[d]
his responses to Request for Admissions Nos.
3-4[.]”[27]
In his
supplemental response served on July 5, 2018, relator
objected to responding to RFP Nos. 33 and 34 in part because
the information being sought was “protected by
attorney/client privilege, the joint prosecution privilege,
the common interest privilege, and the work-product
doctrine[.]”[28] Relator also objected to RFP Nos. 33 and
34 on the grounds that they were duplicative of RFP No.
13.[29] However, in response to RFP Nos. 33 and
34, relator provided redacted copies of his communications
with the government that had occurred prior to his filing his
third amended complaint in February 2018.[30]
Defendants
now move to compel relator to respond more fully to RFP Nos.
13, 33, and 34 by producing unredacted copies of his May 23,
2013 pre-filing disclosure statement, his May 30, 2013
mandatory § 3730(b)(2) disclosure statement, and
“any other documents comprising, recording, or
reflecting his disclosure of information to the government,
including the SBA, about this lawsuit.”[31]
Discussion
“Rule
37 of the Federal Rules of Civil Procedure permits a
discovering party to move for an order to compel a complete
response to properly submitted interrogatories or requests
for production.” Shuffle Master, Inc. v.
Progressive Games, Inc., 170 F.R.D. 166, 170 (D. Nev.
1996). “The party resisting discovery has a
‘heavy burden' of showing why discovery should be
denied.” Roehrs v. Minnesota Life Ins. Co.,
228 F.R.D. 642, 644 (D. Ariz. 2005) (quoting Blankenship
v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).
As an
initial matter, relator argues that the instant motion should
be construed as a motion for reconsideration because
defendants are asking for the same relief that they asked for
in their original motion to compel, namely that he be
compelled to produce unredacted copies of his pre-filing and
mandatory disclosure statements. If the instant motion is
construed as a motion for reconsideration, relator argues
that it is untimely.
“Reconsideration
is appropriate if the district court (1) is presented with
newly discovered evidence, (2) committed clear error or the
initial decision was manifestly unjust, or (3) if there is an
intervening change in controlling law.” School
Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5
F.3d 1255, 1263 (9th Cir. 1993). Local Rule 59.1(b)(1)
provides that motions for reconsideration must be
“filed not later than fourteen (14) days after entry of
the order” in question unless the motion for
reconsideration is based on an intervening change of
controlling law.
Relator
contends that defendants' instant motion is based
primarily on testimony that he gave during his deposition,
which was concluded on July 20, 2017, more than one month
before the court issued its order on defendants' original
motion to compel (but after the briefing on the motion had
been completed). Relator argues that if defendants believed
that his deposition testimony was not adequate for them to
determine whether he was an original source, then they should
have moved for reconsideration of the court's August 23,
2017, order denying their motion to compel within fourteen
days, rather than waiting for ten months. Moreover, relator
argues that if defendants believed that his responses to
questions at his deposition were inadequate, then defendants
could have moved to challenge relator's attorney's
instructions not to answer questions about his disclosure
statements. Relator also points out that defendants did not
issue a subpoena to the SBA requesting the disclosure
statements until April 11, 2018. Relator suggests that if
defendants believed that the other means identified by the
court for obtaining his disclosure statements were
inadequate, they should have, and could have, sought such
discovery from the SBA much sooner.
“‘A
motion for reconsideration is not an opportunity to renew
arguments considered and rejected by the court, nor is it an
opportunity for a party to re-argue a motion because it is
dissatisfied with the original outcome.'”
Popescu v. Calif. Dep't of Corrections and
Rehabilitation, No. 13CV564 BEN (JLB), 2014 WL 12664803,
at *1 (S.D. Cal. Oct. 1, 2014) (quoting FTC v. Neovi,
Inc., 2009 WL 56130, at *2 (S.D. Cal. Jan. 7, 2009)).
That is not what defendants are doing here. Defendants are
not arguing that the court's decision as to their
original motion to compel was in error, that the court
overlooked material facts, or that the court misperceived an
issue of law. Rather, defendants contend that they attempted
to obtain the information at issue here through other means,
as the court suggested, but now that those means have failed,
they are renewing their motion to compel the production of
relator's disclosures to the government. Moreover, as
will be discussed below in more detail, relator's third
amended complaint, filed as of February 15, 2018, added a new
dimension to this case. Under these circumstances, a renewed
motion to compel was the appropriate vehicle for defendants
to use.
In
support of their renewed motion compel, defendants argue that
they have shown that they are entitled to discover
relator's formal and informal disclosure statements to
the government. There is no dispute that the work-product
doctrine applies to relator's disclosure statements.
“There are two kinds of work product-ordinary work
product and opinion work product. Ordinary work product
includes raw factual information. Opinion work product
includes counsel's mental impressions, conclusions,
opinions or legal theories. Ordinary work product is not
discoverable unless the party seeking discovery has a
substantial need for the materials and the party cannot
obtain the substantial equivalent of the materials by other
means. In contrast, opinion work product enjoys almost
absolute immunity and can be discovered only in very rare ...