United States District Court, D. Minnesota
T. SCHULTZ UNITED STATES MAGISTRATE JUDGE.
qui tam action under the False Claims Act,
Defendants Cameron-Ehlen Group (d/b/a Precision Lens) and
Paul Ehlen move to compel discovery responsive to several
interrogatories and a document request served on the
Government. Specifically, they seek the basis for allegations
in the Complaint that doctors paid below fair market value
for expensive trips arranged by Defendants, as well as the
identification of specific false claims of which the
Government is currently aware. Defendants also seek
production of memoranda of interviews the Government
conducted during its pre-suit investigation. Relatedly,
Defendants argue that the Government, though asserting
privilege in response to some of the discovery requests, has
provided an inadequate privilege log that must be
supplemented. Defendants are entitled to almost all that they
present action began more than five years ago when, in
November 2013, Relator Kipp Fesenmaier filed a qui
tam action under seal and served the United States
Attorney's Office. Over an approximately four-year
period, the Government sought-and received-eleven extensions
of the deadline to intervene in the case. The Government
eventually decided to intervene against select defendants,
including Precision Lens and Paul Ehlen, in late 2017. The
Government filed its Complaint, which became the sole
operative complaint, in February 2018. Compl. in
Intervention, Docket No. 105; Order, Feb. 26, 2018, Docket
a year before Fesenmaier filed his qui tam action,
the Federal Bureau of Investigation began investigating
Defendants' business activities. Herrett Decl.
¶¶ 2-3, Docket No. 182. The FBI interviewed
Precision Lens employees in 2013, coordinating at least
minimally with the United States Attorney's Office.
Id. at ¶ 4; Beimers Decl. ¶ 2, Docket No.
103. By 2014, Assistant United States Attorneys with the
Office's civil division were coordinating regularly with
the FBI on the investigation, including interviews of
Precision Lens employees and customers. Herrett Decl. ¶
5; Beimers Decl. ¶ 3.
bring the present motion to compel, seeking more fulsome
responses to three Interrogatories and a Request for
Production of Documents. Federal Rule of Civil Procedure
26(b) provides that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case.” The rule contemplates a liberal scope of
discovery, though this Court “possess[es] considerable
discretion in determining the need for, and form of,
discovery.” In re Nat'l Hockey League
Players' Concussion Injury Litig., 120 F.Supp.3d
942, 949 (D. Minn. 2015).
Basis for Allegations of Below Fair Market Value
Complaint, the Government alleges specific instances of
physicians who were remunerated by not paying the full fair
market value for trips and other benefits provided by
Defendants. E.g., Compl. ¶¶ 56, 64-65, 97,
102, 121, 127, 131, 139. Defendants seek the Government's
estimation of the fair market value regarding these specific
allegations, and the basis of such estimations. Their
original Interrogatory was considerably broader:
INTERROGATORY NO. 2: Identify each
alleged kickback, including but not limited to the alleged
provider, the recipient, the date, the nature of the
kickback. For each such instance, identify:
a) The amount and form of payment by the alleged provider.
b) The amount and form of payment by the alleged recipient.
c) The estimated fair value.
d) The basis for the valuation.
Aff. Ex. 3, at 4, Docket No. 175-1. Although the Government
partially answered the Interrogatory, it objected to
providing an estimation for the fair market value
“because it places the burden on the United States when
this is in fact Defendants' burden, and Defendants are in
a position at this point in ...