Higgins v. Boston Scientific Corporation

Background

Steven Higgins brought this qui tam action under the federal False Claims Act and the California False Claims Act. He alleged that Boston Scientific Corporation caused physicians to make false claims for reimbursement from federal health care programs by certifying that certain defibrillators were reasonable and necessary for the procedures in which they were implanted.

The Department of Justice investigated Higgins’s allegations and issued Boston Scientific a civil investigative demand under 31 U.S.C. § 3733. Boston Scientific produced documents and made presentations to the government. The government later declined to intervene, and Higgins prosecuted the case on the government’s behalf. He requested the presentations and documents related to them in discovery. A magistrate judge granted Higgins’s motion to compel production from Boston Scientific.

Boston Scientific objected to that order and also requested permission to file a reply brief. The magistrate judge had found that the requested materials were relevant, that neither the False Claims Act nor the Federal Rules of Evidence barred discovery, and that Boston Scientific had waived work-product and attorney-client privilege by intentionally disclosing the materials to an adversary.

Court’s analysis

The court reviewed the magistrate judge’s nondispositive pretrial order under the standard that permits reversal only if the order was clearly erroneous or contrary to law.

First, Boston Scientific argued that settlement negotiations deserved a heightened relevance standard in discovery under Federal Rule of Evidence 408. The court explained that Rule 408 governs admissibility at trial, not discovery. Federal Rule of Civil Procedure 26(b)(1) allows discovery of nonprivileged information relevant to a claim or defense, even if the information would not be admissible at trial. Because the Eighth Circuit had not adopted a heightened discovery standard for settlement-related negotiations, the court held that the magistrate judge properly applied the ordinary relevance standard.

Second, Boston Scientific argued that public policy required protecting communications between defendants and the government in False Claims Act cases. The court held that the False Claims Act’s civil investigative demand provisions governed the issue. Those provisions prevent the government from disclosing materials while they are in the government’s possession, but the court found no provision preventing Boston Scientific from later disclosing the materials in discovery. Because Higgins requested the materials from Boston Scientific rather than the government, the court held that the statute did not bar disclosure.

Third, Boston Scientific relied on an Eighth Circuit decision recognizing a limited waiver of attorney-client privilege for materials voluntarily provided to a government agency. The court explained that this doctrine was specific to attorney-client privilege and had not been extended to work-product protection. The Eighth Circuit had instead held that intentional disclosure to an adversary waives work-product protection. The court also noted that the earlier decision involved a separate investigation, while Boston Scientific’s disclosure occurred in the same litigation Higgins was prosecuting on the government’s behalf.

Fourth, the court rejected Boston Scientific’s work-product argument. The work-product doctrine protects materials prepared in anticipation of litigation, but intentional disclosure to an adversary waives that protection. The court held that Boston Scientific voluntarily disclosed the presentations to the government, which remained its adversary in the same litigation. That disclosure waived any work-product privilege.

Disposition

Judge Joan N. Ericksen denied Boston Scientific Corporation’s motion for leave to file a reply. She overruled Boston Scientific’s objections to Magistrate Judge Steven E. Rau’s order and affirmed Magistrate Judge Rau’s July 16, 2019 ruling granting Higgins’s motion to compel.