The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff-Relator Dimitri Yannacopolous ("Yannacopolous" or
"Relator") brings this qui tam action on behalf of the United
States of America ("the government") against Defendants Lockheed
Martin Corporation ("Lockheed") and General Dynamics ("Dynamics")
(collectively "Defendants") alleging violations of the False
Claims Act, 31 U.S.C. § 3729 et seq. Relator's Second Amended
Complaint alleges that Defendants submitted false claims to the
government in connection with the sale of F-16 aircraft to the
government of Greece. Lockheed now brings a motion to compel the
production of unredacted copies of the disclosure statements
Relator provided to the government pursuant to
31 U.S.C. § 3730(b)(2). Relator has produced redacted copies of the
disclosure statements to Lockheed. Relator seeks to withhold the
redacted portion as attorney opinion work product.
An oral argument was held on August 31, 2005, at which time it
was clarified that the issue in dispute is the parameters of the work product doctrine.
Specifically, Relator and Lockheed disagree as to what
constitutes "opinion" work product. Both parties do concur,
however, that the portions of the disclosure statements that
constitute opinion work product are not discoverable. This Court
conducted an in camera review of the redacted and unredacted
copies of the disclosure statements to determine what parts, if
any, are opinion work product. This opinion sets forth the
Court's findings regarding what constitutes opinion work product
in the disclosure statements, and discusses the principles and
reasoning the Court applied in its rulings.
In response to Dynamics' First Request for the Production of
Documents, Relator produced documents on July 15, 2004, and
Lockheed received copies of these documents on August 2, 2004.
Two copies of the disclosure statement Relator provided to the
government pursuant to 31 U.S.C. § 3730(b)(2) were included in
this production. Lockheed then sent a letter to Relator
requesting a more legible copy of the disclosure statement as
well as copies of the supporting documents referenced therein.
Shortly thereafter, Relator sent a reply letter to Lockheed
stating that the disclosure statement had been inadvertently
produced. Relator also asserted that the disclosure statement was
protected by the attorney-client, work product, and/or joint
prosecution privileges and requested that Lockheed return all
copies of the disclosure statement it possessed. Lockheed then
returned the disclosure statement and confirmed the destruction
of any copies. Lockheed also retained its right to challenge
Relator's privilege assertion. Lockheed filed its First Request for the Production of
Documents on December 10, 2004. In its request, Lockheed
requested the production of all documents produced or disclosed
to the government including any disclosures made pursuant to
31 U.S.C. § 3730(b)(2). Relator had provided the government with
three such disclosure statements. In his response, Relator
refused to produce the disclosure statements to Defendants on the
grounds that they were protected by the attorney-client, work
product, and/or joint prosecution privileges. Relator produced
redacted copies of the three disclosure statements on May 26,
2005. Relator redacted what he considered opinion work product.
Relator also produced in unredacted form all of the exhibits
referenced in the disclosure statements. On July 28, 2005,
Lockheed requested that Relator produce the disclosure statements
in their entirety. Relator again declined to produce unredacted
copies of the disclosure statements stating that the redactions
were necessary to protect privileged opinion work product.
Relator then produced redacted and unredacted copies of the
disclosure statements to this Court for an in camera review.
Congress amended the federal False Claims Act ("FCA") in 1986
to encourage private enforcement suits. United States ex rel.
Stone v. Rockwell Int'l. Corp., 144 F.R.D. 396, 398 (D. Colo.
1992); see also S. REP. 99-345, at 2 (1986), reprinted in
1986 U.S.C.C.A.N. 5266, 5266-5267 ("The proposed legislation
seeks not only to provide the Government's law enforcers with
more effective tools, but to encourage any individual knowing of
Government fraud to bring that information forward."). The FCA prohibits the
knowing presentation of a false or fraudulent claim for payment
or approval to an officer or employee of the government.
31 U.S.C. § 3729(a). A private person, the relator, may bring a
civil action for a violation of the FCA for the person and the
government. 31 U.S.C. § 3730(b)(1). Such an action, known as a
qui tam action, must be brought in the name of the government.
Id. Therefore, the relator must serve upon the government a
copy of the complaint and a written disclosure, the disclosure
statement, of substantially all material evidence and information
in his possession. 31 U.S.C. § 3730(b)(2).
The purpose of the disclosure statement is to provide the
government with enough information on the alleged fraud so it can
make an informed decision on whether to participate in the action
or allow the relator to proceed on his own. United States ex
rel. Bagley v. TRW Inc., 212 F.R.D. 554, 555 (C.D. Cal. 2003).
After the government receives both the complaint and the
disclosure statement, it has sixty days to intervene and proceed
with the action. 31 U.S.C. § 3730(b)(2). If the government elects
to proceed with the suit, the relator may continue as a party to
the action, but the government has the primary responsibility of
prosecuting the case. 31 U.S.C. § 3730(c). Should the government
decline to take over the suit, the relator has the right to
conduct the action on the government's behalf.
31 U.S.C. § 3730(b)(4)(B).
B. False Claims Act Is Silent on the Discoverability of the
The FCA does not address whether the disclosure statement
provided to the government is discoverable. United States ex
rel. O'Keefe v. McDonnell Douglas Corp., 918 F. Supp. 1338, 1345
(E.D. Mo. 1996); see also United States ex rel. Burns v. A.D.
Roe Co., Inc., 904 F. Supp. 592, 593 (W.D. Ky. 1995) (stating that
nothing in the FCA requires or suggests that the disclosure
statement is privileged). Furthermore, no construction or
interpretation of the language in § 3730(b) could create a
privilege for the disclosure statement nor mandate that the
statement is not privileged. See O'Keefe, 918 F. Supp. at 1345.
The statute is simply silent on this issue. Id. Therefore, the
Court will follow the applicable Federal Rules of Civil Procedure
relating to discovery. Id. at 1346.
The work product doctrine, announced in Hickman v. Taylor,
329 U.S. 495
(1947), has been applied to protect otherwise
discoverable documents and tangibles, including an attorney's
thoughts and mental impressions, made in anticipation of
litigation. Caremark, Inc. v. Affiliated Computer Services,
Inc., 195 F.R.D. 610, 612 (N.D. Ill. 2000). The work product
doctrine has been codified in Rule 26(b)(3) of the Federal Rules
of Civil Procedure and it provides, in relevant part:
[A] party may obtain discovery of documents and
tangible things otherwise discoverable under
subdivision (b)(1) of this rule and prepared in
anticipation of litigation or for trial by or for
another party or by or for that other party's
representative . . . 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 the 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.
FED. R. CIV. P. 26(b)(3).
Rule 26(b)(3) distinguishes between "ordinary" work product
(also referred to as "fact" work product) and "opinion" work product. Fact work
product consists of factual material and opinion work product
comprises the mental impressions, conclusions, opinions, or legal
theories of an attorney or a party's representative. Bagley,
212 F.R.D. at 559. Both are generally protected and can be
discovered only in limited circumstances. In re Grand Jury
Proceedings, 33 F.3d 342, 348 (4th Cir. 1994). Ordinary work
product is discoverable when the party seeking production
demonstrates both a substantial need for the materials and ...