United States District Court, M.D. Pennsylvania
UNITED STATES OF AMERICA, ex rel. MICHAEL S. LORD, Plaintiffs/Relator
NAPA MANAGEMENT SERVICES CORPORATION, NORTH AMERICAN PARTNERS IN ANESTHESIA PENNSYLVANIA, LLC, and POCONO MEDICAL CENTER, Defendants
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
before the court is a motion for a protective order pursuant
to Federal Rule of Civil Procedure 26(c), filed by
the two remaining defendants, namely, NAPA Management
Services Corporation (“NMSC”), and North American
Partners In Anesthesia (Pennsylvania), LLC
(“NAPA-PA”), (collectively the
“defendants”). (Doc. 117).
move for a protective order claiming that good cause exists
to preclude the discovery of certain communications and
documents requested by plaintiff/relator Michael S. Lord
(“plaintiff”) since they are investigative
materials prepared in anticipation of litigation protected
from disclosure as work product or constitute privileged
qui tam action, plaintiff was employed as a
certified registered nurse anesthesiologist
("CRNA") by NAPA-PA and was based at Pocono Medical
Center (“PMC”) from June of 2011 until July 5,
2013. Plaintiff alleges that the defendants
violated the False Claims Act (“FCA”), 31 U.S.C.
§3729, et seq., by submitting false claims to
Medicare for reimbursement regarding anesthesiology services.
Plaintiff alleges that defendants engaged in a scheme to
defraud Medicare in order to receive higher reimbursement by
knowingly and falsely billing it for anesthesiology services
provided at PMC as “medical direction” services
when they should have properly been billed as “medical
supervision” services. In particular, plaintiff
alleges, in part, that in some of the surgeries he was
involved in, the assigned attending anesthesiologist doctor
(“Attending”) was not present in the operating
room to place the patient under anesthesia and, that at the
end of some surgeries, while the patient was being extubated
from anesthesia, the Attending was not present in the
operating room. Plaintiff also asserts a False Claims Act
Whistleblower claim against the defendants as well as a state
law breach of contract claim involving his termination from
on the foregoing, the defendants' motion for protective
order will be GRANTED, except with respect
to one document, Dr. Strobel's PowerPoint presentation
entitled “Compliance Talk 2013.”
April 3, 2019, the defendants filed their motion for a
protective order, (Doc. 117), with attached exhibits, namely,
the Affidavits of Beth Green, Esquire and Leslie Russo, and a
Declaration of Thomas J. Campenni, Esquire, counsel for
defendants, dated April 3, 2019. (Docs. 117-1, 117-2 &
117-3, respectively). Attached to Campenni's Declaration
as Exhibit B is an abridged version of defendants'
privilege log containing the original 31 documents that were
the subject of defendants' motion. (Doc. 117-3, Ex. B).
Defendants simultaneously filed their brief in support of
their motion. (Doc. 118). Plaintiff filed his brief in
opposition to defendants' motion on April 17, 2017, (Doc.
122-1), with the attached Declaration of Richard E. Vuernick,
Esquire, counsel for plaintiff, (Doc. 122-2). There are also
exhibits, A-D, attached to Vuernick's Declaration.
Defendants filed their reply brief on April 24, 2019, with
the attached April 24, 2019 Declaration of Campenni and a
copy of a December 26, 2012 email regarding
“Regulations”, which is largely redacted. (Docs.
123 & 123-1).
September 9, 2019, defendants submitted revised privilege
logs, attached to Campenni's September 9, 2019
Declaration as Exhibits A & B, with 73 documents attached
for in camera review. The revised abridged privilege
log includes the original 31 documents submitted for in
camera review along with 42 additional
court has jurisdiction over this case pursuant to 28 U.S.C.
§1331. The court can exercise supplemental jurisdiction
over plaintiff's state law claim under 28 U.S.C.
§1367. Venue is appropriate in this court since the
claims arose in this district and all parties are located
here. See 28 U.S.C. §1391.
the scope of discovery is broad. “Parties 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.” Fed. R. Civ. P.
26(b)(1) (emphasis added). The information need not be
admissible to be discoverable. Id. Privileged
information, however, is clearly not discoverable. The court
must limit discovery if it determines that the information
sought is outside the proper scope of discovery. Fed. R.
Civ. P. 26(b)(2)(iii).
motion for a protective order is a proper method for
challenging inappropriate discovery requests. The court's
general authority to issue a protective order is governed by
Federal Rule of Civil Procedure 26(c), which reads,
in pertinent part:
A party or any person from whom discovery is sought may move
for a protective order in the court where the action is
pending-or as an alternative on matters relating to a
deposition, in the court for the district where the
deposition will be taken. The motion must include a
certification that the movant has in good faith conferred or
attempted to confer with other affected parties in an effort
to resolve the dispute without court action. The court may,
for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or
Fed. R. Civ. P. 26(c)(1). The court may grant
various forms of relief under Rule 26(c), including
“forbidding disclosure of discovery” and
“forbidding inquiry into certain matters, or limiting
the scope of disclosure of certain matters.” Fed.
R. Civ. P. 26(c)(1)(A), and (D). The decision to grant a
protective order, like other rulings regarding the scope of
discovery, is within the court's discretion. See
Shingara v. Shiles, 420 F.3d 301, 305 (3d Cir. 2005);
Mass. Sch. of Law at Andover, Inc. v. Am. Bar.
Ass'n, 107 F.3d 1026, 1032 (3d Cir. 1997).
party seeking the protective order bears the burden of
demonstrating “good cause” for that protection.
Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d
Cir. 1995); Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 786-87 (3d Cir. 1994).
“‘Good cause' is established when it is
specifically demonstrated that disclosure will cause a
clearly defined and serious injury.” Glenmede,
56 F.3d at 483. There must be a “particular need for
protection.” Cipollone v. Liggett Grp., Inc.,
785 F.2d 1108, 1121 (3d Cir. 1986). “‘Broad
allegations of harm, unsubstantiated by specific examples or
articulated reasoning,' do not support a good cause
showing.” Pansy, 23 F.3d at 786 (quoting
Cipollone, 785 F.2d at 1121).
the defendants move for protection, in part, because they
believe the plaintiff seeks information that is not
discoverable-i.e., information that is protected by
the attorney-client privilege. Fed. R. Civ. P.
26(b)(1). Similar to the burden on the party seeking a
protective order, the party asserting the attorney-client
privilege bears the burden of showing that the materials or
communications at issue are protected from disclosure.
Memory Bowl v. N. Pointe Ins. Co., 280 F.R.D. 181,
186 (D.N.J. 2012); Scott Paper Co. v. United States,
943 F.Supp. 489, 499 (E.D. Pa. 1996). This comports with Rule
26 which explicitly provides that a party withholding
information based on a privilege must “expressly make
[that] claim” and must “describe the nature of
the documents, communications, or tangible things not
produced or disclosed-and do so in a manner that, without
revealing the information . . .. will enable other parties to
assess the claim.” Fed. R. Civ. P.
26(b)(2)(5)(A). “Whether the privilege applies is
a question of law for the court to decide.” Andritz
Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609,
632 (M.D.Pa. 1997).
purpose of the attorney-client privilege is “to
encourage full and frank communications between attorneys and
their clients and thereby promote broader public interests in
the observance of law and administration of justice.”
Upjohn Co. v. United States, 449 U.S. 383, 389
(1981). The traditional articulation of the attorney-client
privilege adopted in this circuit contains the following
(1) the asserted holder of the privilege is or sought to
become a client; (2) the person to whom the communication was
made (a) is a member of the bar of a court, or his
subordinate and (b) in connection with this communication is
acting as a lawyer; (3) the communication relates to a fact
of which the attorney was informed (a) by his client (b)
without the presence of strangers (c) for the purpose of
securing primarily either (I) an opinion on law or (ii) legal
services or (iii) assistance in some legal proceeding, and
not (d) for the purpose of committing a crime or tort; and
(4) the privilege has been (a) claimed and (b) not waived by
Maldonado v. New Jersey, 225 F.R.D. 120, 127 (D.N.J.
2004) (quoting In re Grand Jury
Investigation, 599 F.2d 1224, 1233 (3d Cir. 1979)).
“The privilege covers communications made by the client
as well as the attorney and it ‘exists to protect not
the giving of professional advice to those who can act on it
but also the giving of information to the lawyer to enable
him to give sound and informed advice.'”
Lawless v. Del. River Port. Auth., No. 11-7306, 2013
WL 180347, at *1 (E.D. Pa. Jan. 16, 2013) (quoting
Upjohn, 449 U.S. at 390). The privilege belongs to
the client and only the client may waive it. Haines v.
Liggett Grp. Inc., 975 F.2d 81, 90 (3d Cir. 1992).
information within the scope of the attorney-client privilege
will be “zealously protected.” Id.
(citation omitted). There are, however, limitations. The
privilege extends to the communications between the attorney
and his or her client, but not to the disclosure of
underlying facts incorporated into the communication.
Upjohn, 449 U.S. at 395-96. In addition,
“[b]ecause the attorney-client privilege obstructs the
truth-finding process, it is construed narrowly.”
Westinghouse Elec. Corp. v. Republic of Philippines,
951 F.2d 1414, 1423 (3d Cir. 1991). The application of the
privilege must be determined on a “case-by-case”
basis, Upjohn, 449 U.S. at 396-97, and it
“protects only those disclosures-necessary to
obtain informed legal advice-which might not have been made
absent the privilege, ” Westinghouse, 951 F.2d
at 1423-24 (quoting Fisher v. United States, 425
U.S. 391, 403 (1976)) (emphasis in original).
defendants seek protection from disclosure of certain
documents and communications based on the work product
doctrine. The law is clear that “documents prepared in
the regular course of business rather than for purpose of the
litigation are not eligible for work-product protection, even
if the prospect of litigation exists.” Sullivan v.
Warminster Tp., 274 F.R.D. 147, 152 (E.D.Pa. 2011)
(citation omitted); Highland Tank & Mfg. Co. v. PS
Intern, Inc., 246 F.R.D. 239, 246 (W.D.Pa. 2007)
(“the work-product doctrine ‘only protects
documents prepared in anticipation of litigation, not in the
regular course of business.'”) (citation omitted).
court in Sullivan, 274 F.R.D. at 150, addressed the
work-product doctrine as defined by the Third Circuit, and
The work-product privilege is codified by Federal Rule of
Civil Procedure 26(b)(3), which states that: a party may
not discover documents and tangible things that are prepared
in anticipation of litigation or for trial by or for another
party or its representative (including the other party's
attorney, consultant, surety, indemnitor, insurer, or agent).
But, subject to Rule 26(b)(4), those materials may be
discovered if: (I) they are otherwise discoverable under Rule
26(b)(1); and (ii) the party shows that it has substantial
need for the materials to prepare its case and cannot,
without undue hardship, obtain their substantial equivalent
by other means. Fed.R.Civ.P. 26(b)(3). As with the
attorney-client privilege, the party claiming that evidence
is protected attorney work product has the burden of
establishing that work-product protection applies. Holmes
v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124,
138 (3d Cir. 2000). Unlike the attorney-client privilege,
disclosure to a third party only waives the work-product
privilege if it permits an adversary to gain access to the
information. See Westinghouse Elec. Corp., 951 F.2d
at 1428 (“Most courts hold that to waive the protection
of the work-product doctrine, the disclosure must enable an
adversary to gain access to the information.”).
See also Mine Safety Appliances Co. v. North River Ins.
Co., 73 F.Supp.3d 544, 569-70 (W.D.Pa. 2014).
court in Sullivan, 274 F.R.D. at 151, also stated:
[I]t is the communications and not the underlying facts that
are privileged. See, e.g., Rhone-Poulenc Rorer,
32 F.3d at 862. Plaintiffs are entitled to discovery
regarding the underlying facts of the investigation. It
should be further noted, however, that: The protective cloak
of [attorney-client] privilege does not extend to information
which an attorney secures from a witness while acting for his
client in anticipation of litigation. Nor does this privilege
concern the memoranda, briefs, communications and other
writings prepared by counsel for his own use in prosecuting
his client's case; and it is equally unrelated to
writings which reflect an attorney's mental impressions,
conclusions, opinions or legal theories. Sampson v.
School Dist. of Lancaster, 262 F.R.D. 469, 474 (E.D.Pa.
2008). Such communications are generally protected by the
work-product privilege instead. See id.
“[t]he question whether a document was prepared in
anticipation of litigation is often a difficult factual
matter.” United States v. Rockwell Int'l,
897 F.2d 1255, 1266 (3d Cir. 1990). A document is prepared in
anticipation of litigation when, “in light of the
nature of the document and the factual situation in the
particular case, the document can fairly be said to have been
prepared or obtained because of the prospect of
litigation.” Id. (citations omitted). As such,
courts should determine “the state of mind of the party
preparing the document or ... the party ordering preparation
of the document.” Martin v. Bally's Park Place
Hotel & Casino, 983 F.2d 1252, 1260 (3d Cir. 1993).
“This inquiry is limited by the requirement that the
party's anticipation of litigation be objectively
reasonable.” Sullivan, 274 F.R.D. at 152
(citing Martin v. Bally's Park Place Hotel &
Casino, 983 F.2d at 1260).
brief backdrop, in January 2019, plaintiff sent a letter to
defendants claiming that they improperly withheld certain
documents in response to discovery requests as privileged. At
issue were the following two categories of documents that
defendants withheld as privileged, as reflected on their
initial privilege log: (I) e-mail correspondence between
non-attorney NAPA employees and officers that were
“based upon, and discussing, advice received from
counsel”; and (ii) e-mail correspondence with
defendants' former outside counsel, David Vaughn.
a teleconference with the court on March 11, 2019, the court
agreed to allow defendants to file a motion for a protective
order and for the parties to file briefs with respect to the
documents in the two stated categories which were withheld by
defendants. The court also agreed to conduct an in
camera review of the withheld documents.
the March 11, 2019 conference, defendants represented that
they attempted to identify all of the documents that might
fit the two above stated categories. Defendants also stated
that they updated their privilege log. Additionally,
defendants indicated that they “prepared an abridged
version of their privilege log, which includes only the 31
emails and/or other documents [they] determined are within
the scope of this motion, numbered as documents 1 through
31.” (citing Campenni's 4-3-19 Decl., Ex. B, Doc.
September 9, 2019, defendants submitted an updated abridged
privilege log, attached to Campenni's September 9, 2019
Declaration as Exhibit B, with 73 documents attached for
in camera review, including the original 31
defendants state that they have “specifically
identified 10 emails and/or other documents that involve
non-attorney NAPA employees or officers (Campenni Decl., Ex.
B, Docs. 1-10), and 15 emails and/or other documents that
involve David Vaughn (Campenni Decl., Ex. B,
Docs.11-25).” Defendants also state that they
“withheld six emails and/or other documents [as
attorney-client communications] involving former NMSC
employee Garrett Dowd-who was an attorney with ...