This post was written by Andrew C. Bernasconi and Nathan Fennessy.
Continuing the recent trend of decisions sanctioning whistleblowers for failing to comply with their discovery obligations (see our previous posts “Whistleblower Precluded from Relying Upon Stolen Records for False Claims Act Case” and “FCA Qui Tam Relator Sanctioned for Destroying Evidence on Company-Issued Laptop”), the United States District Court for the Middle District of Florida recently granted a motion to compel and awarded “reasonable attorneys’ fees” against a qui tam relator for failing to produce a variety of documents requested by defendants, including documents pertaining to the book the relator was purportedly writing about the case, video diaries, and tax returns. See United States ex rel. King v. DSE, Inc., No. 8:08-CV-2416-T-23EAJ, (M.D. Fla. Sept. 10, 2012).
The relator claimed that nondisclosure was justified because, among other reasons, (1) he had recently obtained new counsel, and (2) defendants filed the motions before attempting in good faith to resolve the dispute. The relator also asserted that the requested video diaries had been “tampered with, destroyed, and/or corrupted due to a burglary of his residence.” The court concluded that the relator had failed to provide a “satisfactory explanation for not providing these items” and ordered the production of the requested information. The court further awarded monetary sanctions in the form of defendants’ reasonable attorneys’ fees in filing the motion to compel, but deferred ruling as to the amount of the award and whether to apportion the award between counsel and client. In justifying the award, the court noted that it had previously warned the relator about his obstruction of discovery, and granted defendants’ prior motions compelling the relator to appear for a deposition, and to respond to interrogatories and document requests.
This decision once again reiterates that discovery in FCA or whistleblower actions is a two-way street, and relators may not shirk their discovery obligations. Importantly, the court’s decision contemplates sanctions against relator’s counsel for the client’s failure to comply with discovery obligations. This should embolden companies defending against FCA or whistleblower actions to vigorously pursue discovery from relators who appear to be holding back relevant information, and likewise should encourage relators’ counsel to ensure that their clients are complying with their discovery obligations.
