## Facts

- A relator brought a qui tam action under the False Claims Act (FCA), alleging defendants submitted inflated claims for payment on government contracts.
- As required by 31 U.S.C. § 3730(b)(2), relator’s counsel provided the government a written disclosure of substantially all material evidence and information in the relator’s possession, along with several related letters to government attorneys and investigators.
- During discovery, defendants sought the relator’s FCA disclosure statement and the related letters.
- Relator withheld the materials on claims of attorney–client privilege, work-product protection, common-interest (joint-prosecution) privilege, and a law-enforcement investigatory files privilege.
- Defendants already had extensive factual disclosure through a detailed memorandum produced at deposition and access to underlying documents and information referenced in the relator’s communications to the government.
- Defendants moved to compel production and requested discovery sanctions.

## Issues

1. Whether the relator’s FCA disclosure statement and related communications to government personnel are protected from discovery by attorney–client privilege, work-product doctrine, common-interest privilege, or a law-enforcement investigatory files privilege.
2. Whether prior production of a detailed factual memorandum and underlying materials negated or limited any asserted protection over the disclosure materials.
3. Whether defendants were entitled to sanctions based on relator’s refusal to produce the disclosure materials.

## Decision

- The court granted the motion to compel in part and denied it in part.
- The court rejected a categorical rule that FCA § 3730(b)(2) disclosure materials are shielded from discovery merely because they were submitted to the government.
- The court declined to treat counsel’s communications to government attorneys and investigators as wholly protected by attorney–client privilege or common-interest doctrine.
- The court held that any law-enforcement investigatory files privilege had to be asserted by the government with an appropriate showing and could not be invoked unilaterally by the relator.
- The court required production to the extent the materials reflected discoverable factual content, while preserving protection for any genuinely opinion-based attorney work product.
- The court denied defendants’ request for sanctions.

## Legal Principles

- FCA § 3730(b)(2) disclosures are not automatically immune from discovery in subsequent litigation against the defendant.
- Work-product protection distinguishes between factual work product (more readily discoverable, especially where the substance has already been disclosed) and opinion work product (mental impressions and legal theories), which receives stronger protection.
- Attorney–client privilege generally does not cover communications from a party’s counsel to third-party government personnel; disclosure to a third party defeats confidentiality absent a recognized and satisfied privilege exception.
- Common-interest protection does not automatically attach to a relator’s communications to the government made to encourage intervention; it does not, by itself, shield the factual contents of those communications from discovery by the opposing party.
- Law-enforcement investigatory files privilege is held by the government and must be formally invoked with a particularized showing; a private relator cannot assert it to block discovery.

## Conclusion

In an FCA qui tam discovery dispute, the court ordered partial production of the relator’s disclosure statement and related letters, holding that their factual content was discoverable and not categorically privileged, while denying sanctions because the privilege issues presented legitimate disputes.


United States ex rel. Burroughs v. DeNardi Corp., 167 F.R.D. 680 (S.D. Cal. 1996)