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

Background

During a September 11, 2023 conference, the court found that the defendants had shown enough need for documents concerning deliberations about the PDEV audit process. The court therefore ordered the Government to produce documents it had previously withheld or redacted under the deliberative-process privilege, which protects certain internal government discussions about policies and decisions.

The Government later produced nearly 3,000 documents to Omnicare, after fact discovery had closed. Omnicare contended that the documents showed discussions among people at the Centers for Medicare & Medicaid Services, the Department of Health and Human Services, and the Office of Management and Budget about practices that the Government now alleged were fraudulent. Omnicare said the documents were relevant to its defense because they could support an argument that the Government knew about or approved certain industry practices involving prescription documentation.

Requests to Reopen Depositions

Omnicare sought to reopen ten fact-witness depositions and two depositions under Federal Rule of Civil Procedure 30(b)(6), which allows an organization to designate a person to testify about specified subjects. Omnicare argued that it had not previously been able to question the witnesses about the newly produced documents because the Government had asserted privilege. It also argued that the documents were not duplicative of earlier discovery.

The court concluded that the newly produced documents supplied new information, that the requested questioning would not be unnecessarily cumulative, and that the potential benefit outweighed the burden of reopening the depositions. The court permitted Omnicare to reopen the depositions of Mary Anne Brewer, Ilina Chaudhuri, Devon Christianson, Joanne Davis, Chris Eisenberg, Carolyn Kapustij, Ray Mierwald, Cheri Rice, Matthew Siuta, and Chrissy Fowler. For all except Fowler, the questioning was limited to the time remaining from the original depositions. If Omnicare had used all of its time for Fowler, the court allowed one additional hour.

The court denied Omnicare’s request to reopen Craig Miner’s deposition because he had been offered as a Rule 30(b)(6) witness on subjects other than the PDEV audit, while the newly produced documents concerned only that audit. The court also denied the request to reopen Kevin Gorsline’s deposition because Omnicare had not asked him questions that drew a deliberative-process objection and had not identified documents indicating that he participated in relevant government deliberations.

Other Discovery Requests and Ruling

Omnicare also asked the court to order the Government to supplement its interrogatory responses, meaning its written answers to discovery questions. The court denied that request because Omnicare had not shown that the Government failed to respond properly. The Government represented that it had conducted a reasonable inquiry to identify people with relevant knowledge, and Omnicare had not identified anyone named in the newly produced documents who had relevant knowledge but was previously unknown to Omnicare or undisclosed by the Government.

Finally, Omnicare sought permission to take five additional depositions of high-level Centers for Medicare & Medicaid Services and Health and Human Services officials involved in prescription-drug-event decision-making. The court explained that deposing a high-ranking government official requires exceptional circumstances, such as firsthand knowledge or information unavailable by other means. The court found that Omnicare had not made that showing. The Clerk of Court was directed to terminate Omnicare’s letter motion at ECF No. 402.