The opinion of the court was delivered by: Magistrate Judge Morton Denlow
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 any and all written disclosures served upon the government pursuant to 31 U.S.C. § 3730(b)(2) ("§ 3730(b)(2)") that refer or relate to Relator's allegations regarding Internal Electronic Countermeasures ("IECM") Integration and/or Reverse False Claims. Relator claims that the documents at issue were not served upon the government pursuant to § 3730(b)(2), but instead were provided to the government as privileged communications. Relator prepared a privilege log and this Court conducted an in camera review of the documents. An oral argument was held on May 17, 2006. This opinion sets forth the Court's findings regarding the documents, and discusses the principles and reasoning the Court applied in its rulings.
A. LOCKHEED'S PREVIOUS MOTION TO COMPEL
On October 7, 2005, this Court issued a Memorandum Opinion and Order ("10/7/05 Opinion") ruling on a motion to compel filed by Lockheed. See United States ex rel. Yannacopoulos v. General Dynamics, 231 F.R.D. 378 (N.D. Ill. 2005). At issue in that motion were three disclosure statements Relator had served on the government pursuant to § 3730(b)(2). Id. at 380-81. Relator had produced the three disclosure statements to Lockheed, but Relator redacted what he considered opinion work product. Id. Relator also produced in unredacted form all of the exhibits referenced in the disclosure statements. Id. at 381.
Lockheed moved to compel Relator to produce unredacted copies of the three disclosure statements. Id. at 380. The attorney work product doctrine controlled the resolution of the dispute, and the parties agreed that ordinary work product should be produced and opinion work product redacted. See id. at 382. Thus, Relator provided the Court with both redacted and unredacted copies of the disclosure statements so the Court could determine if the portions redacted by Relator constituted opinion work product. Id. at 381, 384. After an in camera review, the Court found that most of Relator's redactions did indeed constitute opinion work product. and the Court set forth its findings regarding what should be produced in its 10/7/05 Opinion.
B. DOCUMENTS AT ISSUE IN THIS MOTION TO COMPEL
On January 26, 2006, in conjunction with Lockheed's First Set of Requests to Admit and Lockheed's Fourth Set of Interrogatories, Lockheed served its Second Request for the Production of Documents on Relator. Lockheed requested any and all written disclosures of evidence and information underlying Relator's claims against Lockheed related to IECM Integration and Reverse False Claims that Relator had served on the government pursuant to § 3730(b)(2). In Lockheed's First Set of Requests to Admit, Lockheed requested an admission from Relator that prior to, at the time of, or after the filing of the First or Second Amended Complaint, no "written disclosure of substantially all material evidence and information Relator possessed underlying Relator's claims against Lockheed" related to IECM Integration and Reverse False Claims was ever served on the government. Lockheed Mot. at 2.
Relator denied this request to admit. Id. In support of his denial, Relator stated that in addition to the three disclosure statements the Court addressed in its 10/7/05 Opinion, beginning in or around July 1999 and prior to the filing of the Second Amended Complaint, Relator and his attorneys submitted to the government a number of letters and memoranda, though not titled "disclosure statements," which identified Relator's legal theories and referenced or disclosed the evidence and information that Relator possessed at the time underlying his claims against Lockheed related to IECM Integration and Reverse False Claims. Id. at 3. Lockheed and Relator exchanged more correspondence about Relator's written communications with the government, and Relator refused to produce the documents claiming they are privileged and different from the three disclosure statements at issue in the 10/7/05 Opinion. There are fifteen documents at issue, which Relator provided to the 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. ...