United States District Court, D. Minnesota
T. SCHULTZ UNITED STATES MAGISTRATE JUDGE
of discovery in this False Claims Act matter, the Government
and Relator Kipp Fesenmaier have asserted a common interest
privilege over communications shared between the Relator (and
his counsel) and Government agents (including members of the
U.S. Attorney's Office). During the May 2019 status
conference, Defendants first challenged Plaintiffs'
assertion that the Government and Fesenmaier had a unity of
interest beginning on April 24, 2013, the date on which the
Relator told an FBI agent that he had hired an attorney for a
potential False Claims Act lawsuit. May 21, 2019 Hr'g Tr.
38-39, Dkt. No. 277. In a subsequent Order, this Court
analyzed the common interest privilege and its application in
False Claims Act cases, both generally and in the present
case. June 10, 2019 Order, Dkt. No. 275. There, the Court
ordered production of any documents not independently subject
to attorney-client privilege or the work product doctrine,
but invited the parties “to provide sufficient factual
detail and legal argument necessary to resolve the broader
question of whether the common interest doctrine is to be
applied prior to September 2013.” Id. at 5.
Defendants accepted that invitation and brought the motion
that is the subject of this Order.
their briefing, Defendants questioned Fesenmaier's
standing to bring the qui tam action at all, arguing his
interest in the claim should have been part of his bankruptcy
estate. Without standing, the theory posits, there could be
no common legal interest between Fesenmaier and the
Government. That argument presents an interesting question
that has, at least, the potential to undermine the claim of
common interest. However, its resolution would require the
consideration of other dispositive issues that are currently
before District Judge Wright on Defendants' motion for
summary judgment against Fesenmaier. This Court defers on
these broader questions.
this Court left open the original challenge as to when the
common interest privilege began. With fact discovery now
ostensibly closed, this open question must be addressed. As
the asserting side, Plaintiffs bear the burden of
establishing that the privilege applies in the specific
instance. See Hollins v. Powell, 773 F.2d 191, 196
(8th Cir. 1985). On the record before this Court, any common
interest privilege is properly asserted only once Fesenmaier
made his pre-filing disclosure to the Government.
very nature of the pre-filing disclosure makes the date it
occurred a clear point of demarcation. As discussed in the
prior Order, the caselaw is fairly clear that the Relator
does not waive applicable privileges by following the
disclosure requirements of 31 U.S.C. § 3730(b)(2).
In re Uehling, 2014 WL 1577459, at *5 (E.D. Cal.
Apr. 17, 2014). It is logical that the Government, upon
receipt of that file, would follow up with the Relator and
counsel as it weighs intervention and considers potential
case strategy. Further, although no bright line
“relation back” rule exists in the caselaw, the
Government's ultimate intervention in the case lends
factual support to the present record that the communications
between the Plaintiffs were in fact in furtherance of a
strategic common legal interest. Because they had a
sufficient unity of interests at the time Fesenmaier made his
pre-filing disclosure, Plaintiffs did not waive otherwise
applicable privileges by sharing documents and communications
among themselves on or after September 20, 2013.
record is far less clear as to the earlier date on which
Plaintiffs also assert the common interest privilege. On
April 24, 2013, Fesenmaier emailed Mary Jo Herrett, the case
agent leading the FBI's criminal investigation. Decl. of
Matthew Piehl, Sept. 27, 2019, Ex. 1 (Fesenmaier Dep.
184-85), Dkt. Nos. 333-34. He informed Special Agent Herrett
that he had retained a law firm for a potential qui tam
action, and Special Agent Herrett responded she was not
in mind that Plaintiffs have the burden of demonstrating the
applicability of a discovery privilege, Hollins, 773
F.2d at 196, Fesenmaier's email informing Special Agent
Herrett that he had hired an attorney is insufficient to meet
that burden. Even assuming that Special Agent Herrett's
knowledge that Fesenmaier hired an attorney could be imputed
to the Government, there is no further factual predicate
demonstrating, in that early phase, a common legal strategy
or unity of interests. At the time Fesenmaier made the
statement, the FBI's investigation was apparently still
criminal in nature, and the civil division of the U.S.
Attorney's Office did not become involved in witness
interviews until 2014. Decl. of Mary Jo Herrett, Feb. 14,
2019, at ¶¶ 4-5, Dkt. No. 182. Because Fesenmaier
was cooperating in the criminal investigation when he hired
an attorney, it is far from obvious that any subsequent
communication was made in furtherance of a common interest,
rather than as a cooperating witness.
have argued that a broad view of the common interest
privilege in this matter is consistent with the purpose of
the False Claims Act. Although the limited authority in this
area suggests that a unity of interest can be assumed at
certain points prior to intervention, the argument does not
carry as much water as Plaintiffs need. The interests of the
Relator and the Government are not always and necessarily
aligned. United States ex rel. (Redacted) v.
(Redacted), 209 F.R.D. 475, 479 n. 3 (D. Utah 2001). At
the time he informed the FBI he hired an attorney,
Fesenmaier's interests could have been well at odds with
the Government's interest in prosecuting the criminal
action. Even in the civil action, the statute authorizing qui
tam lawsuits gives the Government the power effectively to
sideline a relator when useful to litigating the case as the
Government sees fit. 31 U.S.C. § 3730(2)(A)-(D)
(allowing the Government to dismiss or settle the action over
the relator's objections and authorizing the court to
limit the relator's participation in the litigation).
Plaintiffs have not met their burden to show that the common
interest privilege applied to otherwise privileged material
before September 20, 2013. If Plaintiffs shared such
documents or communications with each other before that date,
they waived any otherwise applicable privilege.
Court, having heard argument on the matter and being fully
apprised hereby makes the following order.
HEREBY ORDERED that Defendants' Motion to Compel Withheld
Materials and Testimony [Dkt. No. 330] is GRANTED. Plaintiffs
shall produce all responsive communications previously
withheld pursuant to the common interest privilege if the
communication occurred before September 20, 2013.
 The Court expressly incorporates that
prior Order and its analysis into the ...