“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.
Well, hell’s bells! The Branch Opposition to Defendants’ Motion to Compel delivered a tutorial on disclosure on a silver platter with Exhibit 1 as the rose!
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, Continue reading “qui tam Olympics: Branch throws javelin to protect Disclosure Statement; Rigsbys got speared when Judge Walker gave their Disclosure to State Farm in the McIntosh case!”
There is a time disparity is the Court’s treatment of plaintiffs and defendants that has resulted in a situation where expedite is a plaintiff’s turtle to the advantage of insurer defendants making expedite their hare.
Turtles are everywhere in Katrina litigation – often with the information needed to represent the plaintiff shielded in privilege logs that do not comply with applicable rules and law. Discovery is a nightmare. Decisions routinely are based on defendant’s claim discovery has been completed, even when plaintiff’s claim to the contrary. The Court seeming makes no independent inquiry and issues knee-jerk orders with regularity. Plaintiff’s counsel takes his or her life in hand when meeting the ethical responsibility to file a request for reconsideration of a Magistrate’s order – so much so that rumor has it the plaintiff’s bar has purchased purple hearts.
How evident it is to others, I don’t know. How regularly anyone reviews the dockets is something I can’t begin to guess. An attorney I am not; but, one need not be to know that motions related to discovery merit a timely response and it’s just not happening.
Nowhere is the disparity between the Court’s treatment of plaintiffs and defendants more evident than Continue reading “expedite is a plaintiff’s turtle and insurer’s hare”
Sunshine is a wonderful disinfectant and we’ve been shining the light on Magistrate Judge Walker and his blonder moments on the bench most recently here. He’s never met a State Farm case he didn’t like to seal at least partially preferring insurance litigation in his court to be conducted in the shadows away from public scrutiny. His efforts are largely futile however because the Judges in the Eastern District of Louisiana are dealing with the same issues in a far different and open manner. For example, we posted the State Farm Cat Induction Manual last August and I’ve noticed it’s popularity as a download here of late.
Our non pictorial document library has around 2,200 items including that Cat Induction Manual, and that does not include 500 or so specimin altered State Farm engineering reports and other info I maintain offline that takes over 2 gigs of space on my trusty computer. So, if you are a policyholder lawyer that has encountered Judge Walker and his curious legal thinking that State Farm’s dirty claims handling tricks constitute trade secrets drop us a line because we just might have what you’re looking for or can hook you up with someone who can help.
Katrina’s plaintiff pro se gave us the moment:
Damn all the odds!
…When I look back,I will always recall,
Moment for moment,This was the moment,
The greatest moment of them all.
Whatever Lexington offered, I believe the Company’s counsel Continue reading “Moment for moment, the greatest moment of all Thank you, Judge Ozerden; Judge Roper; Alford Clausen & McDonald for Lexington; and, last but not least, a standing O for Katrina’s plaintiff pro se”