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

Background

Omnicare asked the court to compel the Government to produce all withheld summaries of interviews with witnesses who were Omnicare employees. The Government had disclosed eight interview summaries to its expert, Chad Hardy. In a declaration, Hardy stated that he had not used the summaries to prepare his report and would not use or rely on them in the future.

Omnicare argued that the disclosure waived the Government’s work-product protection under Federal Rule of Evidence 502(a). Work-product protection generally protects materials prepared by lawyers in anticipation of litigation or during an investigation. Omnicare also argued that the Government had used protected interview summaries to support factual allegations in its complaint, which independently required disclosure of the other summaries.

Court’s analysis

Rule 502(a) provides that a waiver applies to undisclosed information only if three conditions are met: the disclosure was intentional; the disclosed and undisclosed information concerns the same subject matter; and fairness requires that the materials be considered together.

The court held that Omnicare had not shown a waiver. First, the undisclosed summaries did not concern the same subject matter as the disclosed material. The Government’s summaries covered different employees who worked in different roles, at different pharmacies, and during different periods. References in the complaint to a particular witness’s experience at a particular pharmacy did not place all of the Government’s interview work product at issue.

Second, the court held that fairness did not require disclosure of all the summaries. The Government had relied on only a handful of witness interviews in the complaint, primarily to provide factual background about matters such as Omnicare’s corporate culture and pressure to dispense medications. The court distinguished a prior decision involving analyses that were central to the plaintiffs’ ability to plead an antitrust conspiracy. Here, the interview references were not essential to making the complaint legally sufficient.

The court also stated that interview summaries prepared by counsel during an agency investigation are classic work product.

Disposition

The court DENIED Omnicare’s motion. It directed the Clerk of Court to terminate the letter motions at ECF Nos. 324 and 325.