Apr 222016

Court Holds That Relator’s Review of Disclosure Statement to Prepare for Deposition Results in Limited Waiver

Brian P. Morrissey and Blair Greenwald
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A qui tam relator’s disclosure statement may be discoverable if it is used to refresh the relator’s recollection for a deposition or other testimony.  In United States ex rel. Bingham v. HCA, Inc., a False Claims Act case before the U.S. District Court for the Southern District of Florida, the defendant moved to compel production of the relator’s written disclosure statement to DOJ.  The parties disputed whether the relator’s statement constitutes work product and, if so, whether the work product protection was waived.  In an order issued earlier this week, the district court bypassed the first question and ruled that any work product protection was waived when the disclosure statement was used to refresh the relator’s recollection prior to his deposition.  The court relied on “long-established principles” that privilege in these circumstances must give way to Federal Rule of Evidence 612, which entitles an adverse party “to have the writing [used to refresh the witness’s recollection] produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony.”  The court reasoned that fairness to the defendant requires that the disclosure statement be turned over for effective cross-examination.

Even so, the court did not conclude that the waiver was absolute.  Striking a balance between privilege and Rule 612, the court determined that work product protection was waived only for fact work product, not core opinion work product.  The court held that the protection would still apply to the latter category if the relator could demonstrate that its disclosure “would create a non-speculative danger of revealing counsel’s mental thoughts and impressions that would unduly prejudice or damage the [r]elator’s case.”  The court ordered the relator to turn over the document in its entirety for in camera review and to provide argument for those portions of opinion work product that the relator contends should be excised.  If the relator successfully argues that a portion of the statement should be excised, then the court will have to address the first question:  Does the work product protection even apply to these disclosure statements?

Brian P. Morrissey

Washington, D.C.

BrianP.Morrissey@sidley.com

Blair Greenwald

bgreenwald@sidley.com

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