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U.S. v. GENERAL DYNAMICS AND LOCKHEED MARTIN CORPORATION

October 7, 2005.

UNITED STATES OF AMERICA, ex rel. DIMITRI YANNACOPOULOS, Plaintiff,
v.
GENERAL DYNAMICS and LOCKHEED MARTIN CORPORATION, Defendants.



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.

  I. BACKGROUND FACTS

  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.

  II. LEGAL STANDARDS

  A. False Claims Act

  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 Disclosure Statement

  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.

  C. Work Product Doctrine

  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 ...


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