“Sharing of information between the Government and the relator does not waive either the attorney-client privilege or the work product protections.” FALSE CLAIMS ACT: WHISTLEBLOWER LITIGATION, §9-4(a)(5), attached as Ex. 1.
The United States District Court for the District of Columbia has now expressly ruled that information shared between the relator, his counsel and the United States is protected from discovery by the joint-prosecutorial privilege. The joint prosecutorial privilege is the Government/relator counterpart to the recognized joint defense or common interest privilege. It is grounded in the language of the False Claims Act itself which empowers the relator to bring the action “in the name of the Government” and awards the relator a percentage of the proceeds recovered by the United States. Such statutory language make clear Congress’ intent to align the interest of the Government with that of the relator.
By law, a whistleblower must file the qui tam Complaint under seal. However, the Complaint is but one of the two documents a whistleblower must file. The other is an evidentiary disclosure. I learned that reading the law journal article authored by Tony DeWitt, the Rigsbys’ former counsel:
Although the filing of the document is jurisdictional and the Act requires that one be filed, it is important to remember that the purpose of the filing is to make the government aware of what evidence the relator has, and what other evidence might be available should it decide to intervene in the case.
Little wonder then that Branch’s opposition states “the written disclosure statements comprise… counsel’s mental impressions, conclusions, opinions, and legal theories, they constitute opinion work product and are not discoverable.” Conversely, in Rigsby, all one can do is wonder why Judge Walker handed over the Rigsby’s disclosure to State Farm in the McIntosh case! However, there’s no need to wonder what State Farm was doing – the Rigsbys’ nailed it in the Relators’ Motion to Lift the Stay of Discovery and Authorize Service of Complaint:
Because of the unsealing of the qui tam case, counsel in other litigation are conducting discovery in the qui tam case sub rosa through discovery requests aimed at discovering the contents of Relators’ evidentiary disclosure to the Government and invading the lawyer-client privilege in this litigation.
The Rigbys’ motion followed this statement with a chart listing numerous examples of discovery motions in both McIntosh and Renfroe v Rigsby, the Alabama case. Nonetheless, Judge Walker issued an Order denying their Motion on December 4, 2007 and eight days later, he issued an Order in McIntosh for them to turn over their disclosure documents to State Farm:
State Farm now moves the Court to require the Rigsbys to produce the documents referenced in their privilege log as Numbers 5 and 6, Bates numbered RIGSBY 2901 – RIGSBY3108 and RIGSBY3109 – RIGSBY 3294. The Court having examined the documents submitted for in camera review, finds as follows:
Number 5 on the Rigsbys’ privilege log is described as, “An evidentiary disclosure consisting of emails and other documents concerning fraud by State Farm in the aftermath of Hurricane Katrina submitted to United States on or about April 24, 2006 (RIGSBY2901-RIGSBY3108).” The privileges asserted by the Rigsbys for withholding these documents are, “qui tam, attorney-client, work product, joint interest/joint prosecution privilege.” The Court holds, at the outset, that the Rigsbys’ identification of all the documents contained in No. 5 on their privilege as a qui tam disclosure was unnecessary, did not sufficiently identify the documents as required by the Rules, and does not shield the documents from disclosure. That said, the Court will address the particular documents included in No. 5.
Do you think it hurts to be dumb? If Churchill read Walker’s Order, would he say, “tomorrow morning I’ll be sober, but you’ll still be ugly dumb?
Pages 2901 – 2938 are purportedly the “relator’s evidentiary disclosure” in the Rigsbys’ qui tam case, but they were submitted to the Court in blank and/or entirely redacted with the exception of the signature page and certificate of service on pages 2937-2938. The Court therefore can find no privilege to excuse production of the documents and orders the Rigsbys to produce them.
Pages 2939 – 29991 are State Farm’s “Engineers Roster – CAT PL” bearing date 4/20/2006, and time 1:35 p.m., and marked “State Farm Insurance Confidential Proprietary Information.” The Court finds that the Rigsbys have no privilege in these documents. The Rigsbys are ordered to produce these documents. Pages 3000 – 3030 are the Haag Engineering Co. Hurricane Katrina Storm Damage Survey, ©2005, which by no stretch of the imagination could be deemed the Rigsbys’ or their attorneys’ work product, nor is it protected from discovery by any of the other privileges claimed. The Rigsbys are ordered to produce these documents.
Pages 3031 – 3065 appear to be a State Farm adjuster’s work-up of the Hurricane Katrina claim of Craig Balius. No claim of attorney-client, work product, or “joint interest/prosecution” privilege applies to these documents, and the Rigsbys are ordered to produce them.
In a foot note to the mention of Craig Balius, Judge Walker added, “Mr. Balius is not represented by the Plaintiffs’ attorneys in this case, nor has any evidence been offered to show any relationship between him and anyone involved in the McIntosh case”. However, the Complaint Lumpkin and Reeves filed in Balius v State Farm suggests the relationship:
The Plaintiffs filed a timely claim with State Farm. In the course of its investigation, State Farm determined that this claim should be paid under the Plaintiffs’ flood policy which had $124,900 for the building and $32,900 for contents. State Farm paid those policy limits.
Damage to the second and third floors of the Plaintiffs’ home were due to wind and should have been covered under the Plaintiffs’ homeowners policy. Plaintiffs have a homeowners policy with dwelling coverage of $158,206, extension coverage of $15,821, and contents coverage of $118,654. State Farm has refused, without an arguable legitimate reason to tender these policy limits.
Was Balius another exemplar property? The case was filed in Harrison County Circuit Court on April 7, 2007; a month to the day, May 7, 2007, later State Farm filed the Motion to Compel in McIntosh and on the 6th of June, State Farm moved the case to Federal Court. Obviously, Judge Walker gave it no thought and felt compelled to move on.
Pages 3066 – 3097 are internal State Farm catastrophe team emails, and an attached WeatherData report (pages 3077 – 3097) dated August 2005, and pages 3098 – 3104 areadditional internal emails. The Court finds the Rigsbys have no legally cognizable privilege with respect to these documents, and orders them to produce same.
Page 3105-3108 are redacted pages of “relator’s declaration(s)” of Kerri and Cori Rigsby in their qui tam case, which contain no information for review by the Court. The Court will not require the Rigsbys to produce unredacted copies of these documents, as the information subject to discovery with respect to this matter is available as public record from the docket in Civil Action No. 1:06cv433-LTS-RHW.
With respect to No. 6 on the Rigsbys’ privilege log, RIGSBY3109 – RIGSBY 3294, withheld because they “might be argued to be subject to Judge Acker’s injunction and protective order, ”the Court finds as follows: Pages 3109-3112, titled “Gulfport Catastrophe Office” and bearing the notation “revised 10/18/2005,” consist of names, State Farm identification numbers, etc., of team managers and members, with phone numbers and “onsite roles” identified. Page3113 is a similar document titled “Biloxi Roster.” The Court orders the Rigsbys to produce these documents.
Pages 3114, and 3115 – 3118 are, respectively, a blank FEMA flood form and FEMA informational literature which the Rigsbys are ordered to produce. Pages 3119-3127 are instructions regarding estimating damages in adjusting claims, and forms for providing a summary of same. Some of these pages are identified as State Farm documents, e.g., page 3123 and pages 3124 – 3127. The Rigsbys are ordered to produce these documents.
Pages 3128-3129 are titled “Steps to scoping the flood loss– stick built,” and pages 3130 – 3199 are flood claim worksheets, instructions, and forms for estimating damages.3 Pages 3200 -3202, titled “ICC Workflow,” are more instructions on adjusting flood claims. The Court orders the Rigsbys to produce these documents.
Pages 3203 – 3240 are two identical copies of a 19-page document titled “State Farm Insurance Catastrophe Personnel Tracking System Office Roster by Team Report,” bearing the date 9/14/2005 and time 11:20 AM CDT. Each of these pages is marked, “For Internal use only. Nothing contained in this shall be disclosed out side State Farm unless proper authorization is obtained.” The Court orders the Rigsbys to produce these documents.
Page 3241 is a black page with only the handprinted word “Flood” discernible. Pages 3242 – 3245 appear to be redacted pages from flood claims files. Page 3246 is a typewritten document titled “Closing Flood Files – Training Guide,” which is marked, “For Internal State Farm Use Only.” Page 3247 gives the flood code for particular water depths. Pages 3248 – 3252 are blank payment authorization forms for flood loss and increased cost of compliance. Pages 3253 – 3278 are all blank forms which appear to be worksheets for use in adjusting claims. Pages 3279-3280 are statement of loss forms, and Page 3281 is a form letter for transmittal of NFIP information increased cost of compliance information. Page 3282 is a blank flood claim worksheet, and Pages 3283 – 3288 are two identical copies of a 3-page document titled “Flood Authorization Coding Strip.” Pages 3289-3294 are a blank 12-page XactTotal Home Valuation Questionnaire. The Court orders the Rigsbys to produce all these documents.
Branch’s opposition makes the point well:
Inextricably intertwined with discussion of what Branch found is discussion about how the government could prove its case, which constitutes opinion work product. Opinion work product “includes such items as an attorney’s legal strategy, his intended lines of proof, his evaluation of the strengths and weaknesses of his case, and the inferences he draws from
interviews of witnesses.” Sporck v. Peil, 759 F.2d 312, 316 (3d Cir. 1985). The “selection and compilation of documents by counsel” also constitutes opinion work product. Id. “Where the
selection, organization, and characterization of facts reveals the theories, opinions, or mental impressions of a party or the party’s representative, that material qualifies as opinion work
product.” Bagley, 212…
Branch throws the javelin; the Rigsbys’ got speared; and the Qui Tam Olympics goes on – but tomorrow Judge Walker will still be… Hopefully, Magistrate Shushan isn’t blond.