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United States v. Afognak Native Corporation

United States District Court, D. Alaska

August 30, 2018

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 ...

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