United States of America ex rel. Uri Bassan v. Omnicare, Inc.

Background

Omnicare filed a reply letter brief supporting its request to compel production of certain witness-interview summaries that the Government had withheld. Omnicare initially argued that the Government’s disclosure of some summaries to its expert waived protection over the undisclosed summaries under Federal Rule of Evidence 502(a).

After the Government’s expert disclaimed using the summaries to prepare his report, Omnicare raised a different basis for waiver. It argued that factual allegations in the complaint were supported by the protected witness-interview summaries and that this amounted to an affirmative use of the protected material.

The parties’ arguments

Omnicare relied on the Court’s decision in an earlier matter involving statistical analyses and consultant documents that were partly referenced in a complaint. In that decision, the Court found that selective disclosure could waive work-product protection when withholding information that might undermine allegations would benefit the plaintiffs and prejudice the defendants.

The opinion states that, in ruling on Omnicare’s motion to dismiss, the Court had relied on or at least cited some factual allegations that Omnicare claimed were supported by the protected summaries. The Government had not yet had an opportunity to respond in writing to Omnicare’s newly raised argument.

Order

Judge Valerie Figueredo directed the Government to file a letter responding to Omnicare’s argument that the complaint’s alleged use of the protected material was sufficient to constitute affirmative use for purposes of waiver under Federal Rule of Evidence 502(a). The response was due by October 17, 2023. The order did not resolve whether a waiver occurred or direct production of the summaries.