Does the work product doctrine protect communications between a party’s expert and the government? A court in Kentucky recently grappled with that issue in the False Claims Act (FCA) context — and found that the relator’s work product claim came up (repeatedly) short.
In United States ex rel. Scott v. Humana, Inc., No. 3:18-CV-00061-GNS-CHL, 2023 WL 3470893 (W.D. Ky. May 15, 2023), the district court sanctioned a relator for his repeated failures to produce documents and testimony related to meetings that the relator’s expert — a former Chief Actuary of the Centers for Medicare & Medicaid Services (CMS) — had with CMS and the Department of Justice (DOJ).
The discovery dispute harkens back to July 2020 when defendant Humana learned during its deposition of the relator’s expert that, in 2018 and 2019, the expert had participated in several meetings with CMS and DOJ officials. Despite Humana’s assertion that the communications were discoverable and should have been produced, the relator argued that the expert’s communications with the government were protected work product under Federal Rule of Civil Procedure 26(b)(4)(D). After Humana moved to compel, the court issued an order in August 2021 directing the relator to produce nonprivileged documents related to the communications and make the expert available for a supplemental deposition.
During the supplemental deposition of the expert, relator’s counsel repeatedly instructed him not to answer questions about comments he...
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