U.S. ex rel. O'Keefe v. McDonnell Douglas Corp., 4:93CV02188 GFG.

Citation961 F.Supp. 1288
Decision Date10 March 1997
Docket NumberNo. 4:93CV02188 GFG.,4:93CV02188 GFG.
PartiesUNITED STATES ex rel. Daniel G. O'KEEFE, Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, Defendants.
CourtUnited States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)

Daniel J. McMichael, McMichael and Logan, Chesterfield, MO, Claire M. Schenk, Office of U.S. Atty., St. Louis, MO, Michael F. Hertz, Stanley E. Alderson, U.S. Dept. of

Justice, Civ. Div., Washington, DC, Francis E. Pennington, III, Daniel V. Conlisk, Dankenbring and Greiman, St. Louis, MO, for U.S. ex rel. Daniel G. O'Keefe.

Stephen H. Rovak, Roger K. Heidenreich, Robert F. Scoular, Sonnenschein and Nath, St. Louis, MO, David J. Massa, Charles A. Weiss, Veryl L. Riddle, Bryan Cave, St. Louis, MO, for McDonnell-Douglas Corp.

Claire M. Schenk, Office of U.S. Atty., St. Louis, MO, Michael F. Hertz, Stanley E. Alderson, Anthony M. Alexis, U.S. Dept. of Justice, for U.S.

MEMORANDUM AND ORDER

GUNN, District Judge.

This matter is before the Court on various discovery motions. Following a conference with the parties, the Court issued an order staying its December 3, 1996, order resolving these motions. Document 114. The United States moved for reconsideration of the December 3 order. Document 115. The Court indicated at the conference that it would reconsider its rulings on all motions. Accordingly, the Government's motion for reconsideration is GRANTED.

Upon reconsideration and for the reasons stated in the December 3 order, the Court adheres to its prior rulings on (1) defendant's motion to compel answers to interrogatories, Document 85, and (2) defendant's motion to compel production of documents, Document 86.

The Court, however, will modify its ruling on defendant's motion to compel deposition testimony and production of documents. Document 92. After carefully considering the evidence submitted, the Court will deny defendant's motion for an order compelling the Government immediately to produce another designee pursuant to defendant's Fed. R.Civ.P. 30(b)(6) notice to testify as to the matters listed in subparts 2(a)-(l) of defendant's motion.1 The Government's designees testified responsively to defense counsel's questions to the best of their knowledge. Although the Court understands defense counsel's frustration with the qualified and equivocal responses given by the Government's witnesses, the Court does not believe reconvening the Rule 30(b)(6) deposition would be productive at this time.

The Court's ruling is without prejudice to defendant's right to schedule another Rule 30(b)(6) deposition sixty days prior to the conclusion of discovery to require the Government's designees to supplement their responses regarding all matters listed in the original notice. This will provide defendant with an opportunity to examine the Government's designees prior to trial based on the information the Government has obtained through further investigation.2 The Court is confident that the Government will provide more specific and concrete responses at that time or will be prepared to dismiss unsupported allegations from the complaint.

The Court also grants in part and denies in part defendant's motion to overrule the Government's deposition objections and instructions not to answer on the basis of work product. Document 92, subpart 3. Defendant is entitled to inquire into the factual bases of the Government's allegations. Defendant may not, however, ask questions which tend to reveal counsel's advice, counsel's view as to the significance of specific facts, or counsel's questions to third-party witnesses because these matters are protected by the work-product doctrine. See, e.g., People ex rel. Vacco v. Mid Hudson Medical Group, P.C., 877 F.Supp. 143, 150-51 (S.D.N.Y.1995); Protective Nat'l Ins. Co. v. Commonwealth Ins. Co., 137 F.R.D. 267, 283 (D.Neb.1989); Connolly Data Sys., Inc. v. Victor Tech., Inc., 114 F.R.D. 89, 96 (S.D.Cal. 1987). If defendant reconvenes the Rule 30(b)(6) deposition, defense counsel shall phrase his or her questions in such a way as to avoid implicating these matters.

With respect to witness statements, defendant is entitled to discover any written statement made by defendant's employees which the Government may attempt to use at trial as an admission. See Thornton v. Continental Grain Co., 103 F.R.D. 605, 606 (S.D.Ill.1984).3 Defendant may also depose the Government's representative concerning the factual information obtained from these witnesses. Raso v. CMC Equip. Rental, Inc., 154 F.R.D. 126, 128 (E.D.Pa.1994).

The Court agrees with defendant that questions concerning when the Government discovered certain matters is not covered by the work-product doctrine. Accordingly, the Government's objections to such questions are overruled.

Finally, the Government shall respond to all of defendant's requests for production of documents served in connection with the Rule 30(b)(6) notice. To the extent this request duplicates defendant's previous request for production, the Government shall notify the defendant of the documents it has produced which are responsive to this request and shall supplement all responses pursuant to Fed.R.Civ.P. 26(e).

The Court next turns to defendant's motion for a protective order. Document 94. Defendant seeks an order (1) barring the Government from contacting its current employees ex parte about the subject matter of this litigation; (2) requiring the Government to give defendant 10 days notice before contacting any former employee concerning the subject matter of this action; (3) requiring the Government to provide defendant with a list of all employees it has contacted ex parte since intervening in this action; (4) requiring the Government to provide defendant with all information obtained from its employees in this manner; and (5) barring the Government from using any documents or information obtained through ex parte contacts.

At the outset, the Court rejects the Government's contention that it lacks authority to issue the protective order based on the alleged violation of the rules of professional conduct. This Court has inherent authority to impose sanctions for conduct which abuses the judicial process. Harlan v. Lewis, 982 F.2d 1255, 1259 (8th Cir.), cert. denied, 510 U.S. 828, 114 S.Ct. 94, 126 L.Ed.2d 61 (1993); Chancellor v. Boeing Co., 678 F.Supp. 250, 253 (D.Kan.1988).

The ex parte contacts at issue concern a questionnaire sent to defendant's current and former employees by the Defense Criminal Investigative Service of the Inspector General of the Department of Defense at the direction of the Government's attorneys. The questionnaire asks whether the employee ever engaged in mischarging of labor, and, if so, at the direction of whom. Document 94, exh. A. Defendant correctly observes that the mischarging allegations are central to the Government's cause of action under the False Claims Act. See U.S. ex rel. O'Keefe v. McDonnell Douglas Corp., 918 F.Supp. 1338, 1341 (E.D.Mo.1996) (describing mischarging allegations).

Defendant argues that the ex parte contacts violate Missouri Supreme Court Rule 4-4.2,4 which provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

The comment to the Rule explains its applicability to organizations such as defendant:

In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.

The Missouri Supreme Court adopted the comment and its three-category test for determining which persons within an organization should be accorded protected status under Rule 4-4.2 in State ex rel. Pitts v. Roberts, 857 S.W.2d 200, 202 (Mo.1993). Explaining its approval of the comment, the Court stated: "This test focuses neither upon a bright line hierarchical structure nor a bright line temporal distinction regarding which employee shall be treated as a party, but instead sets out a functional approach designed to be sensitive to the practical considerations of the real world." Id. at 202.

Defendant contends that under the Government's theory of the case, liability may be imputed to the defendant based on the acts of all of its current employees regardless of status or rank. The Government does not dispute this statement, but instead argues that Rule 4-4.2 does not encompass all employees whose conduct could be imputed to the organization.

The Court must reject the Government's argument that Rule 4-4.2 does not encompass all employees whose conduct may be imputed to the organization. This argument is inconsistent with Pitts and with the plain language of the comment to Rule 4-4.2.

To determine whether defendant's employees are persons whose acts or omissions may subject defendant to liability, the Court must refer to the substantive law. Pitts, for example, was an action to recover for property damage resulting from the allegedly negligent installation of a water heater in a mobile home. 857 S.W.2d at 201. Plaintiffs' counsel took statements from the defendant's employees prior to the commencement of the lawsuit. Defendant then sought access to the statements during discovery as the statements of a party and argued that counsel should not have taken the statements ex parte. Id. The Missouri Supreme Court determined that the employees (who allegedly performed the negligent installation) were persons whose acts or omissions could be imputed to the organization for purposes of civil liability within the meaning of the...

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