UNITED STATES OF AMERICA ex rel. STEVEN SCOTT, Plaintiff, v. HUMANA, INC., Defendant CIVIL ACTION NO. 3:18-CV-61-GNS-CHL United States District Court, W.D. Kentucky Signed September 24, 2019 Counsel Jeffrey A. McSorley, U.S. Department of Justice—Commerical Litigation Branch Fraud Section, Washington, DC, Benjamin Seth Schecter, U.S. Attorney Office, Louisville, KY, for Plaintiff United States of America. Andrew C. Shen, Bethan R. Jones, David C. Frederick, James M. Webster, III, Katherine C. Cooper, Thomas G. Schultz, Kellogg Hansen Todd Figel & Frederick, PLLC, Washington, DC, C. Dean Furman, Jr., Furman & Nilsen, PLLC, Louisville, KY, Claire M. Sylvia, Edward Henry Arens, Phillips & Cohen LLP, San Francisco, CA, for Plaintiff Steven Scott. Amanda M. Santella, K. Lee Blalack, II, Reuben C. Goetzl, William T. Buffaloe, David J. Leviss, Kimya Saied, Sara S. Zdeb, Pro Hac Vice, O'Melveny & Myers LLP, Washington, DC, Casey L. Hinkle, Michael P. Abate, Kaplan Johnson Abate & Bird LLP, Louisville, KY, for Defendant. Lindsay, Colin H., United States Magistrate Judge Order *1 Relator, Steven Scott (“Relator”) alleges that Defendant, Humana (“Humana” or “Defendant”) made false bids to the Centers for Medicare & Medicaid Services (“CMS”) in order to secure lucrative Medicare Part D contracts. (DN 1, PageID # 6.) Relator was a Humana actuary who worked on the Walmart Plan and discovered this alleged fraud in the course of his employment. (DN 184, PageID# 10988.) Relator endeavors to show that Humana kept two sets of metrics and assumptions: “one analysis that it used to report the actuarial value of the Walmart Plan to CMS, which would justify the award of a contract, and a second analysis that Humana used to set its own internal operating budget and to report its expected financial performance to its shareholders. The latter, accurate analysis, which was consistent with Humana's actual experience, showed that Humana did not expect its Walmart Plan to be actuarially equivalent, as required to obtain a Part D contract.” (Id.) On September 7, 2018, the Court granted Relator's motion to strike (DN 76) and Humana's fourth, fifth, sixth, seventh and ninth affirmative defenses were stricken from its Answer (DN 57). (DN 112.) Before the Court is Humana's motion to compel production of documents responsive to Humana's request for production (“RFP”) No. 10 and for leave to reopen the deposition of Relator as briefed in DNs 162, 184, and 193. Also before the Court is Humana's motion to compel the production of documents from non-party Lindsay Scott (“Ms. Scott”) and for leave to reopen Ms. Scott's deposition as briefed in DN 164, and DN 183. Additionally, Humana has filed accompanying motions to seal, DN 194 and 163. For the reasons set forth below, Humana's motions to compel (DN 162 and DN 164) are DENIED. Further, Humana's motions to seal (DN 194 and 163) are DENIED. I. MOTIONS TO COMPEL A. Legal Standard Trial courts have wide discretion in dealing with discovery matters. See S.S. v. E. Ky. Univ., 532 F.3d 445, 451 (6th Cir. 2008) (quoting Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981)). Fed. R. Civ. P. 26(b)(1) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case ...” Fed. R. Civ. P. 26(b)(1). This language is broadly construed by the federal courts to include “any matter that bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). The scope of discovery is not without limits, however. In assessing whether information is within the scope of discovery, the Court is directed to consider “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). *2 Fed. R. Civ. P. 37 allows a party to move for an order compelling disclosure or discovery when “a party fails to answer an interrogatory submitted under Rule 33” or “fails to produce documents ... as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(iii), (iv). Under Rule 37, an “evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). When an objection to relevance is raised, the party seeking discovery must demonstrate that the requests are relevant to the claims or defenses in the action. Anderson v. Dillard's, Inc., 251 F.R.D. 307, 309-10 (W.D. Tenn. 2008). If that party demonstrates relevancy, the burden shifts to the party resisting discovery to demonstrate why the information or documents are not discoverable under the Federal Rules. Id. Discovery responses must be “complete and correct.” Fed. R. Civ. P. 26(g)(1)(A). Objections to interrogatories “must be stated with specificity.” Fed. R. Civ. P. 33(b)(4). Answers to requests for admission must admit the request, “specifically deny” the request, “detail why the answering party cannot truthfully admit or deny,” or object on “stated” grounds. Fed. R. Civ. P. 36(a)(4) - (5). B. Discussion 1. Humana's motion to compel production of documents responsive to Humana's request for production (“RFP”) No. 10 and for leave to reopen the deposition of Relator Steven Scott. In Humana's motion to compel production of documents responsive to Humana's RFP No. 10 and for leave to reopen the deposition of Relator, Humana argues that Ms. Scott, former in-house counsel to Humana during the years at issue, may have played a role in developing this False Claims Act litigation. Humana argues Relator has obstructed much of the discovery regarding Ms. Scott through improper privilege assertions. (DN 162, pageID # 2676.) Pursuant to Fed. R. Civ. P. 30(a)(2) and 37(a)(1), Humana now moves for an order (1) compelling Relator to produce three documents responsive to Humana's Request for Production (“RFP” or “Request”) No. 10 that Relator has withheld on the basis of improper privilege assertions and (2) granting Humana leave to reopen its deposition of Relator for the limited purpose of questioning him about the three documents and asking certain questions that he refused to answer on the basis of improper spousal communication privilege objections. (DN 162, PageID # 2676.) Humana states it needs this discovery to determine Ms. Scott's role in the development of Relator's FCA claims and to determine whether Ms. Scott relied on any confidential client information in assisting her husband. (Id. at PageID # 2678.) The specific RFP No. 10 at issue requests the production of, “[a]ny Documents Concerning Communications between You and any Person (except Your attorneys), Concerning the allegations in the Complaint.” (DN 162-2.) In the privilege log accompanying Relator's responses to Humana's RFPs, Relator identified an August 30, 2015 email message between himself and Ms. Scott, along with three attached files, that were responsive. (DN 162-3 Relator_Priv001.001-001.003.) The privilege log describes the documents as, “Confidential spousal communication attaching three documents created for purposes of obtaining legal advice regarding potential FCA claims.” Humana argues it is entitled to discovery of three attachments despite the assertion of three privileges by Relator: the spousal communication privilege, the attorney-client privilege, and the work product doctrine. (DN 162, PageID # 2677.) Humana makes clear that they are not moving to compel production of Relator's email message to Ms. Scott, but only the attachments to that email. (DN 193, Page ID # 11395.) *3 In opposition, Relator contends that the present motion seeking discovery of Relator's privileged communications with his wife is a baseless harassment exercise and should be denied in its entirety. (DN 184, PageID # 10987.) Relator argues that he provided the privilege log five months before his deposition and Humana delayed in bringing this motion until more than three months after the deposition was completed and only eight days prior to the close of discovery. (DN 184, PageID # 10992.) Relator admits that Ms. Scott did not act as his counsel for the purposes of this action before or after filing the Complaint; Ms. Scott did not provide legal advice to him concerning the Complaint; Ms. Scott did not collect or provide him with documents or information concerning the Complaint; and Relator has not communicated with Ms. Scott concerning the Complaint using a Humana Computing Device. (DN 184, PageID # 10990.) Both parties' arguments are addressed further below and are grouped by the privilege asserted. a) Spousal Communication Privilege “The confidential marital communications privilege excludes confidential communications made by one spouse to the other during the marriage. This privilege is assertable by either spouse.” United States v. Porter, 986 F.2d 1014, 1018-19 (6th Cir. 1993). The marital communications privilege exists to insure that spouses generally feel free to communicate their deepest feelings to each other without fear of eventual exposure in a court of law. Id. (quoting United States v. Byrd, 750 F.2d 585, 590 (7th Cir. 1984)). There are three prerequisites to the assertion of this privilege: (1) at the time of communication there must have been a marriage recognized as valid by state law; (2) the privilege applies only to utterances or expressions intended by one spouse to convey a message to the other; and (3) the communication must be made in confidence. Id. (internal citations omitted.) Confidential communications between spouses made during marriage are presumptively privileged. United States v. Robinson, 763 F.2d 778, 783 (6th Cir. 1985). This presumption may be overcome by proof of facts showing that the communications were not intended to be private. Pereira v. United States, 347 U.S. 1, 5 (1954). “The presence of a third party negatives the presumption of privacy. So too, the intention that the information conveyed be transmitted to a third person.” Id.; Wolfle v. U.S., 291 U.S. 7, 14 (1934) (husband's letter to wife not “confidential” because it had been dictated to stenographer). Humana argues the three attachments do not acquire privileged status simply because Relator subsequently attached them to a spousal communication. (DN 162, Page ID # 2682.) Neither party cites to case law regarding email attachments in the context of the spousal communication privilege; however in the context of the attorney-client privilege, “[w]here a privileged document has attachments, each attachment must individually satisfy the criteria for falling within the privilege. Merely attaching something to a privileged document will not, by itself, make the attachment privileged.” Leonen v. Johns-Manville, 135 F.R.D. 94, 98 (D.N.J. 1990) (citing Sneider v. Kimberly-Clark Corp., 91 F.R.D. 1, 4 (N.D. Ill. 1980)). Humana contends the attachments to the August 30, 2015 attachments are not protected by the spousal communication privilege since the attachments were not communicative because they were not written for Ms. Scott. (DN 193, at PageID # 11394.) However, Humana does not support this contention with case law. Relator argues there is no subject matter requirement for the communications between husband and wife to fall under the privilege. (DN 184, Page ID # 10996.) Relator argues the spousal communication privilege protects all communications between Relator and his wife during their marriage. (DN 184, PageID # 10988.) Relator argues he meets the three requirements for spousal communications. (DN 184, PageID # 10996.) Relator and Ms. Scott have been married under the laws of the State of Kentucky since May 2012. (DN 184-1 at 19:22-20:6.) Relator argues the August 30, 2015 email was sent it confidence because it was transmitted through Relator and his wife's private, personal email accounts. This is distinguishable from United States v. Hamilton, 701 F.3d 404, 408 (4th Cir. 2012) wherein a defendant waived the marital communications privilege by communicating with his wife on his workplace computer, through his work email account, and subsequently failing to safeguard the emails. *4 Lastly, Relator argues the communications are confidential and were expected to remain confidential. (DN 184, Page ID # 11000.) Relator argues that just because Ms. Scott was employed as an attorney at Humana does not mean that Relator did not expect his communications to his wife to remain confidential. (Id. at PageID # 10999.) Relator argues that any disclosure of information from Relator to Ms. Scott did not increase the opportunity for Humana to obtain those documents since Ms. Scott had no duty to disclose those documents to Humana. (Id. at PageID # 11000.) The case before the Court is distinguishable from Wolfle wherein a husband conveyed a message to his wife using a scrivener who was bound by confidentially, but not protected by privilege. Wolfle, 291 U.S. at 15. As stated in Wolfle, “Communications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged; but, wherever a communication, because of its nature or the circumstances under which it was made, was obviously not intended to be confidential, it is not a privileged communication.” Wolfle, 291 U.S. at 14. In this instance the information was intended to be conveyed to an attorney, with whom confidentiality and privilege would exist, and thus the Court finds that Relator intended that the attachments were to remain confidential. As discussed below, the transmission of attorney-client protected communications with one's spouse does not waive the attorney-client or work product privilege, and the logical counterpart is that sharing documents with your spouse that are intended to be covered by the attorney client privilege does not waive the spousal communication privilege either. The Court finds that each attachment satisfies the elements required to assert marital privilege. At the time of communication Realtor and Ms. Scott were married under the laws of Kentucky; the attachments were communications as they contained expressions intended by one spouse to convey a message to the other; and the communication was made in confidence and with the intent to remain confidential. b) Attorney Client Privilege Kentucky's “lawyer-client privilege” is set forth in the Kentucky Rules of Evidence. Haney v. Yates, 40 S.W.3d 352, 354 (Ky. 2000); accord. KRE 503. It protects confidential communications made “for the purpose of facilitating the rendition of professional legal services.” KRE 503(b). The attorney-client privilege provides that “(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.” Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir. 1998). The attorney-client privilege is waived by voluntary disclosure of private communications by an individual or corporation to third parties. In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 294 (6th Cir. 2002) (finding a company's disclosures to investigating government entities waived attorney-client privilege). By voluntarily disclosing her attorney's advice to a third party, for example, a client is held to have waived the privilege because the disclosure runs counter to the notion of confidentiality. In re Grand Jury Proceedings Oct. 12, 1995, 78 F.3d 251, 254 (6th Cir. 1996). Humana contends the documents are not protected by the attorney-client privilege because Relator disclosed them to his wife prior to retaining outside counsel in October or November 2015. (DN 193, PageID # 11392.) In opposition, Relator argues the email attachments were work product Relator prepared for purposes of conversations with counsel and in anticipation of litigation, thus they are protected by the attorney-client privilege and the work product privilege. (DN 184, PageID # 10988.) *5 Relator testified he first contacted counsel on August 30, 2015. (DN 162-6 at 87:19-21, 92:23-93:16.) Relator argues he transmitted the email to his wife on the same day. (DN 184-5 at 92:21-23.) Relator argues the attachments consist of an analysis and various notes about Humana's fraud and the attachments were created on August 14, 2015 and August 29, 2015 to prepare Relator for conversations with his retained counsel. (DN 184, PageID # 10994.) Relator states that to the extent it would assist the court in resolving this Motion, Relator is willing to provide the August 30, 2015 email to the Court for its in camera review, provided it would not operate as a waiver. Relator further argues that transmittal of this email to his wife does not extinguish the attorney-client privilege as it was transmitted via a spousal communication. The Court agrees with Relator that the Relator's attachments containing an analysis and notes about Humana's alleged fraud, which were created for the purpose of seeking legal advice prior to the retention of counsel, are protected by the attorney-client privilege. See Clark v. Buffalo Wire Works Co., Inc., 190 F.R.D. 93, 95 (W.D.N.Y. 1999) (notes taken by plaintiff recalling work related events prior to hiring attorney and subsequently given to attorney are within the attorney client privilege); Walter v. Cincinnati Zoo & Botanical Garden, No. 1:05CV327, 2006 WL 6654884, at *3 (S.D. Ohio May 3, 2006) (“[T]he mere fact that a person created notes before she retained an attorney is not determinative of whether the notes are privileged. The determinative factor is instead whether the person took the notes with the intention of later giving them to an attorney – even an as-yet-unretained attorney – for legal advice.”) Though neither party can cite to authority in this circuit that is dispositive on the issue of whether the attorney-client privilege is waived by sharing an otherwise privileged communication with one's spouse, the Court looks to other Circuits for guidance. Other circuits have held a disclosure of documents to one's spouse does not waive the attorney-client privilege. Kirzhner v. Silverstein, 870 F.Supp.2d 1145 (D. Colo. 2012); accord L-3 Commc'ns Corp. v. Jaxon Eng'g & Maint., Inc., No. 10-CV-02868-MSK-KMT, 2014 WL 3732943, at *3 (D. Colo. July 29, 2014) (forwarding an email to spouse did not act as a waiver of the attorney client privilege); Hiskett v. Wal-Mart Stores, Inc., 180 F.R.D. 403, 406 (D. Kan. 1998) (“[I]t is not a waiver when the disclosure is made in the course of another privileged relationship, as when the client tells his wife that he told his lawyer.”) Based on the foregoing, the Court finds the attorney-client privilege was not waived by sending the attachments to Relator's spouse. c) Work Product Privilege Even in diversity cases, federal courts apply the federal work product doctrine. In re Powerhouse Licensing, LLC, 441 F.3d 467, 473 (6th Cir. 2006). Fed. R. Civ. P. 26(b)(3) protects: (1) a document or tangible thing; (2) prepared in anticipation of litigation or for trial; (3) by or for a party or its representative. In re Professionals Direct Ins. Co., 578 F.3d 432, 438 (6th Cir. 2009). “Anticipation of litigation” must both subjectively exist when the document is prepared and be objectively reasonable. In re Professionals Direct Ins. Co., 578 F.3d 432 at 439. “[T]he burden is on the party claiming protection to show that anticipated litigation was the driving force behind the preparation of each requested document.” Id. (internal quotation marks omitted). An ordinary business purpose does not suffice. Id. *6 The work product doctrine “is distinct from and broader than the attorney-client privilege.” In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 294 (6th Cir. 2002) (citing United States v. Nobles, 422 U.S. 225, 238). Unlike the attorney-client privilege, a party waives work-product protection only by a disclosure that “substantially increases the opportunity for potential adversaries to obtain the information.” Equal Employment Opportunity Comm'n v. Wal-Mart Stores, Inc., No. CV 01-339-KKC, 2008 WL 11344709, at *4 (E.D. Ky. Feb 19, 2008) (citing JA Apparel Corp. v. Abboud, 2008 WL 111006, at *3 (S.D.N. Y January 10, 2008)). “Other than the fact that the initial waiver must be to an adversary, there is no compelling reason for differentiating waiver of work product from waiver of attorney-client privilege.” In re Columbia at 306. Ordinarily, disclosure to a spouse does not waive the work-product privilege. See EEOC v. Wal-Mart Stores, Inc., No. CV 01-339-KKC, 2008 WL 11344709, at *4 (E.D. Ky. February 19, 2008) (deposition preparation information disclosure in the presence of a spouse would likely not be an adversarial disclosure that would waive work product privilege). Relator contends the work product privilege extends to the attachments as they are prepared in anticipation of litigation by a party. Fed. R. Civ. P 26(b)(3)(A). This privilege applies regardless of whether it was counsel or the party who prepared the document at issue. See Eversole v. Butler Cty. Sheriff's Office, No. C-1-99-789, 2001 WL 1842461, at *2 (S.D. Ohio August 7, 2001) (documents prepared by the party or his agent fall within the work product rule); Angel Learning, Inc. v. Houghton Mifflin Harcourt Pub. Co., No. 1:08-CV-01259-LJMJMS, 2010 WL 1579666, at *1 (S.D. Ind. April 19, 2010) (“counsel's lack of involvement in preparing the documents has absolutely no bearing on the work-product inquiry; a party can create work-product just like its counsel can, so long as the materials are prepared for litigation purposes.”) Humana argues the documents are not protected by the work product doctrine due to waiver because Relator shared them with his wife, who was his adversary. (DN 162, at PageID # 2677, 2685.) Humana contends Ms. Scott was Relator's adversary by nature of the fact that she was an attorney representing the very client Relator was preparing to sue. (Id. at PageID # 2677.) Humana argues that so long as she was an employee, Ms. Scott had a fiduciary duty to represent Humana's interests when she learned of Relator's allegations. (Id. at PageID # 2685.) Humana contends Ms. Scott's marriage to Relator did not terminate her attorney-client relationship with Humana or negate her ethical duties to her client and so concludes adversarial disclosure was more likely and therefore that work product privilege was waived. (DN 193, PageID #11393.) Relator argues Ms. Scott had no duty to disclose the documents to Humana under the Kentucky Rules of Professional Responsibility, and the email attachments sent from Relator to Ms. Scott did not increase the likelihood Humana would obtain those attachments. (DN 184, at PageID # 11000.) There are no cases directly addressing whether disclosure to a relator's spouse who is a coworker of a relator and employee of a defendant increases the likelihood of adversarial disclosure. However, Humana's implication that any person working for Humana would be Relator's adversary, even his wife, is unsupported by authority. (See Tweith v. Duluth, M. & I.R. Ry. Co., 66 F. Supp. 427, 429 (D. Minn. 1946) (the fact that doctor was employed by hospital did not mean that patient's disclosure of information to doctor waived patient-physician privilege in suit against hospital.) Litigation in this case had not commenced at the time Relator sent the email containing the attachments to his wife since per Humana, Ms. Scott resigned prior to the filing of the Complaint. (DN 184, at PageID # 10989.) Further, Relator sought internal guidance from his superiors at Humana prior to filing the Complaint. (DN 184, at PageID 10993.) Further, Humana is unable to cite to a case that would lead the Court to believe it can disregard Ms. Scott's role as Relator's wife in the analysis of whether or not the work product privilege is waived and to see Ms. Scott through the narrow lens of “an adversary” or “potential adversary”. *7 The inquiry of whether in house counsel is always a relator's adversary, especially in the case of qui tam litigation where Relator was actively seeking internal corporate guidance about the underlying allegations of his Complaint prior to filing a lawsuit, is not resolved by the language Humana cites to in KY. S. Ct. R. 3.130(1.13)(b). This section provides, “If a lawyer for an organization knows that [anyone] associated with the organization is engaged in action ... that is a ... violation of law that might reasonably be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization.” (DN 162, PageID # 2685.) Based on the plain language of the statute cited by Humana if Ms. Scott was informed that Humana was submitting fraudulent bids to CMS, then her ethical responsibility was to proceed as is “reasonably necessary in the best interest of the organization.” KY. S. Ct. R. 3.130(1.13)(b)-(c) provides the attorney with the discretion to refer the matter to a higher authority in the organization or others. When the organization is a publicly traded company and the information involves a violation of Federal law, what is in the “best interest of the organization” is not clear solely based on the language statute. However, whether Ms. Scott's response to the receipt of her husband's email complies with the Kentucky Rules of Professional Conduct is a question tangential to the issues in the Complaint and unnecessary to determine whether waiver of work product applies. Whether Ms. Scott was her husband's adversary for purposes of waiver of work product privilege is not the same as whether she complied with the Rules of Professional Conduct. Humana has not convinced the Court that Ms. Scott was an adversary to her husband given that there was no ongoing litigation between the two Scotts or between Relator and Humana at the time the communication was sent and given that Relator was seeking internal guidance from his superiors as to the problem prior to filing a lawsuit. Courts do not otherwise differentiate waiver of work product from waiver of attorney-client privilege, with the exception of the requirement that the initial disclosure to an adversary (In re Columbia at 306), and the Court is not persuaded that disclosure to Ms. Scott substantially increased the opportunity for potential adversaries to obtain the information contained in the attachments. As such, the Court finds the work product privilege was not waived. d) Relevance Humana requests leave to redepose Relator pursuant to Rule 30(a)(2). Humana contends it is not seeking testimony about the content of Relator's spousal communications, but discovery of the facts surrounding Ms. Scott's role in the development of Relator's FCA claims. Relator argues that Humana has established no substantial need to reopen Relator's deposition, and additional deposition time would serve to further intimidate and harass Relator. Relator argues that Humana explored the issue of Ms. Scott's involvement with Relator's claims at length in both Relator's and Ms. Scott's deposition. (DN 184, PageID#11003.) Humana argues Relator's objections to producing the three documents responsive to RFP No. 10 and to answering questions about his wife's involvement with the development of his lawsuit prevented Humana from obtaining relevant evidence during the course of his deposition. (DN 162, PageID #2677.) Humana argues its efforts to learn more about its former lawyer's role in this case are relevant because Federal Courts closely scrutinize the role of attorneys bringing FCA suits against their former clients due to the troubling ethical implications of their involvement. (DN 193, PageID # 11392.) *8 Relator argues Ms. Scotts involvement is irrelevant to any of the claims and defenses in this action. (DN 184, PageID #11003.) Relator argues Ms. Scott was involved in Medicare Part C plans, and the policy and procedure committee, but had no involvement with the Medicare Part D bids at issue. (DN 184-1 at 20:14-20; 23:18-21.) Further, Ms. Scott sought an ethics opinion from the Kentucky Bar Association's Ethics Committee as to whether she could remain employed by Humana as in-house counsel should her husband file suit against the company for a False Claims Act violation. (DN 184-1 at 113:16-25; 115:24-116:6.) The Kentucky Bar Association ethics committee informed Ms. Scott she did not have a conflict of interest in a letter they sent in September of 2015. (Id. at 114:10-15.) Federal courts adjudicating FCA claims have expressed concern about the ability of corporate counsel to bring qui tam litigation against their employers, given their ethical duties of confidentiality and loyalty. United States v. Quest Diagnostic Inc., 734 F.3d 154, 167 (2d Cir. 2013); accord. United States ex rel. Holmes v. Northrop Grumman Corp., 642 F. App'x 373, 380 (5th Cir. 2016) (per curiam). However, Ms. Scott is not the relator in this case and Humana has not provided any authority supporting that an FCA claim could be dismissed based on Relator's wife's role. Further, the email was sent to Ms. Scott from Relator, as opposed to being from Ms. Scott to Relator. As such, Humana has failed to demonstrate that the questions or requests regarding Ms. Scott's role in the development of Relator's claims are relevant to the claims or defenses in the action. Additionally, inquiry into the substance of the attachments to the email sent to Ms. Scott implicate all three of the privileges elaborated on above, such that further deposition on the attachments would not be proper. 2. Humana's motion to compel the production of documents from Non-Party Lindsay Scott and for leave to reopen Lindsay Scott's deposition In Humana's motion to compel the production of documents from non-party Lindsay Scott and for leave to reopen Lindsay Scott's deposition, Humana moves for an order pursuant to Fed. R. Civ. P. (1) compelling Ms. Scott to produce documents responsive to a non-party subpoena served by Humana on November 19, 2018, and (2) granting Humana leave to reopen Ms. Scott's deposition for the limited purpose of examining her about those documents and obtaining answers to questions to which Ms. Scott's counsel objected to on the basis of the spousal communication privilege. (DN 164, at Page ID 2779.) Humana seeks discovery regarding Ms. Scott's role in developing this FCA suit and incorporates by reference the background provided in DN 162. (DN 164., Page ID 2780.) Ms. Scott was deposed on January 9, 2019. (DN 164, Page ID 2782.) Humana served Ms. Scott with subpoenas for documents and testimony pursuant to Rules 45 and 30(b)(1), including RFP No. 5 and RFP No. 8 which are at issue. RFP No. 5. Seeks, “[a]ll documents Relator provided to You Concerning the Complaint or Allegations in the Complaint.” (DN 164., Page ID 2780.) Ms. Scott produced a privilege log indicating she withheld four documents, the same email and three attachments at issue in DN 162, on the basis of spousal privilege, the attorney-client privilege and the work product doctrine. Humana seeks additional deposition time to depose Ms. Scott on the three attachments in the current motion as well. Humana moves to compel the three email attachments in response to RFP No. 5 for the same reasons in DN 162. (DN 164, PageID # 2785.) In her non-party opposition, Ms. Scott argues the present motion is harassing and argues that the documents sought in RFP No. 5 are protected by the spousal communication privilege, the attorney-client privilege and work product privilege. (DN 183, Page ID 10724.) Ms. Scott reiterates she did not “have any role at all in working on Medicare Part D bids in any capacity.” (DN 183-1 at 20:11-20; 23:14-21; 24:4-6; 32:3-36.) For the same reasoning articulated by the Court above regarding DN 162, the spousal privilege, the attorney-client privilege and the work product privilege all apply to the attachments sought. *9 RFP No. 8 seeks, “[a]ll Documents Concerning Communications between You and the Government Concerning the Complaint or allegations in the Complaint.” Government was defined to include, “the United States, any State, any territory or possession of the United States, any political subdivision, or any agency, department, or unit, including but not limited to CMS, the Office of Inspector General of the U.S. Department of Health & Human services, the U.S. Department of Justice, and any employee, agent, or representative thereof.” Ms. Scott did not produce any documents in response to this request. (DN 164, at PageID #2781.) Humana argues Ms. Scott should have produced her communications with the Kentucky Bar Association since the letter “concerns the Complaint or the allegations in the Complaint” and the Kentucky Bar Association Ethics Committee falls within the scope of “Government” as defined. (DN 164, PageID # 2784.) In opposition, Ms. Scott argues the correspondence with the Kentucky Bar Association's Ethics Committee is not encompassed by RFP No. 8 and the correspondence is irrelevant to any claims in the action. (DN 183, page ID 10725.) Ms. Scott contends the correspondence with the Kentucky Bar Association's Ethics Committee does not concern the Complaint or allegations in the Complaint since the Complaint did not exist at the time of her correspondence with the Kentucky Bar Association. (DN 183, PageID #10739.) Further, Ms. Scott argues the correspondence with the Kentucky Bar Association did not disclose the identity of the company where she worked, any detail regarding the fraud at issue, or any specific allegations of fraud that were eventually set forth in Relator's Complaint. (DN 183-1 at 113:16-116:6.) Ms. Scott argues the Kentucky Bar Association does not fall within the subpoena's definition of “Government” because “any political subdivision, or any agency, department or unit” does not modify the term “State” in the definition provided by Humana. (DN 183, PageID #10740.) Ms. Scott testified that “to avoid any potential conflict of interest or appearance of conflict of interest, Ms. Scott resigned before the Complaint was filed. (DN 183-1 at 17:9-10.) She further argues the record shows she did not have any involvement in the development of Relator's claims since Humana's own privilege log does not show Ms. Scott's name in any of the 8,800 entries; Relator's responses to RFAs make clear Ms. Scott was not providing legal advice concerning the Complaint to Relator; and at Relator's deposition Relator confirmed Ms. Scott did not provide him with any documents. (DN 183, PageID 10727.) Ms. Scott argues she testified at deposition that she never reviewed any Humana documents concerning the Walmart Plan (DN 183-1 at 32:7-33:5); and she did not draft, provide any advice, or provide any information to Relator relating to the Complaint. (DN 183-1 at 44:14-22.) In reply, Humana argues that Ms. Scott's interpretation of Request No. 8 is nonsensical and that the request includes state government bodies. (DN 195, PageID# 11408.) Further, Humana argues that Ms. Scott is not engaged in good faith discovery practice because she withheld documents she knows are about a responsive topic even if the documents do not use particular terminology. (Id. at PageID # 11409.) Lastly, Humana argues the documents are relevant to a possible defense to Relator's FCA suit relating to Ms. Scott's potential involvement in the suit. (Id. at Page ID # 11410.) As the Court stated above, an inquiry into Ms. Scotts' compliance with the Kentucky State Bar Association's ethical code of conduct is not relevant to the instant case regarding Humana's submission of bids to CMS. Humana has not cited to a case in which an FCA claim was dismissed due to Relator's spouse's occupation and concedes that the cases cited to “involved attorneys who were themselves relators”. (DN 195, PageID # 11411.) Thus, further inquiry into counsel's communications with the Kentucky Bar Association are not relevant to the merits of the case. Further, for the same reasoning, additional deposition testimony about the documents sought or questions about Ms. Scott's ethical obligations to Humana would not be relevant. II. MOTIONS TO SEAL A. Legal Standard *10 Although the Sixth Circuit has long recognized a “strong presumption in favor of openness” regarding court records, there are certain interests that overcome this “strong presumption.” Rudd Equipment Co., Inc. v. John Deere Construction & Forestry Co., 834 F.3d 589, 593 (6th Cir. 2016) (citing Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir. 1983)). These interests include “certain privacy rights of participants or third parties, trade secrets, and national security.” Brown & Williamson Tobacco Corp., 710 F.2d at 1179. The party seeking to seal the records bears a “heavy” burden; simply showing that public disclosure of the information would, for instance, harm a company's reputation is insufficient. Id.; Shane Grp. Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016). Instead, the moving party must show that it will suffer a “clearly defined and serious injury” if the judicial records are not sealed. Shane Grp. Inc., 825 F.3d at 307. Examples of injuries sufficient to justify a sealing of judicial records include those that could be used as “sources of business information that might harm a litigant's competitive standing.” Nixon v. Warner Comm'ns, Inc., 435 U.S. 589, 598 (1978). In rendering a decision, the Court must articulate why the interests supporting nondisclosure are compelling, why the interests supporting public access are not as compelling, and why the scope of the seal is no broader than necessary. Shane Grp. Inc., 825 F.3d at 306. Importantly, the presumption that the public has the right to access judicial records does not vanish simply because all parties in the case agree that certain records should be sealed. Rudd Equipment Co., Inc., 834 F.3d at 595 (noting that although the defendant did not object to the plaintiff's motion to seal, his lack of objection did not waive the public's First Amendment and common law right of access to court filings); Shane Grp. Inc., 825 F.3d at 305 (“A court's obligation to keep its records open for public inspection is not conditioned on an objection from anybody.”) B. Discussion 1. Humana's Motion for Leave to File Under Seal Humana Inc.'s Motion to Compel Production of Documents from Non-Party Lindsay Scott and For Leave to Reopen Lindsay Scott's Deposition (DN 163 re DN 164) Humana argues that the motion and attached exhibits contain and reflect information that Relator has deemed to be confidential and protected material under the parties' confidentiality stipulation. (DN 163, Page ID # 2776.) Humana states that pursuant to that confidentiality stipulation, Humana is filing its motion provisionally under seal and Relator is then required to submit a brief to the Court as to why sealing is required and whether redaction could eliminate or reduce the need for sealing. (Id.) Humana sets forth no other arguments in its two paragraph motion. (Id.) Relator filed a response to Humana's motion for leave to file under seal Humana's motion to compel production of documents from non-party Lindsay Scott and for leave to reopen Lindsay Scott's deposition. Relator states, “Relator has reviewed Humana's Motion, and attached exhibits, and does not request that this Court seal or redact any portions thereof.” Accordingly, Humana's motion for leave to file under seal Humana's motion to compel production of documents from non-party Lindsay Scott and for leave to reopen Lindsay Scott's deposition is DENIED. (DN 163.) 2. Humana's Motion for Leave to File Under Seal Humana Inc.'s Reply in Support of Motion to Compel Production of Documents from Non-Party Lindsay Scott and for Leave to Reopen Lindsay Scott's Deposition (DN 194 re DN 195) Humana argues that the motion and attached exhibits, contain and reflect information that Relator Steven Scott has deemed to be confidential and protected material under the parties' confidentiality stipulation. (DN 194, PageID # 11402.) Humana states that pursuant to that confidentiality stipulation, Humana is filing its motion provisionally under seal and Relator is then required to submit a brief to the Court as to why sealing is required and whether redaction could eliminate or reduce the need for sealing. (Id.) Humana sets forth no other arguments in its two paragraph motion. (Id.) Relator has not filed a response to Humana's motion. Based on the foregoing, the Court finds that Humana has failed to articulate any compelling reason to seal DN 195. Accordingly, the motion for leave to seal Humana's reply in support of motion to compel production of documents from non-party Lindsay Scott and for leave to reopen Lindsay Scott's deposition is DENIED. III. ORDER *11 Accordingly, IT IS HEREBY ORDERED as follows: 1) Humana's motion to compel production of documents responsive to Humana's request for production (“RFP”) No. 10 and for leave to reopen the deposition of Relator Steven Scott (DN 162) is DENIED. 2) Humana's motion to compel the production of documents from non-party Lindsay Scott and for leave to reopen Lindsay Scott's deposition (DN 164) is DENIED. 3) Humana's Motion for Leave to File Under Seal Humana Inc.'s Motion to Compel Production of Documents from Non-Party Lindsay Scott and For Leave to Reopen Lindsay Scott's Deposition (DN 163) is DENIED. 4) Humana's Motion for Leave to File Under Seal Humana Inc.'s Reply in Support of Motion to Compel Production of Documents from Non-Party Lindsay Scott and for Leave to Reopen Lindsay Scott's Deposition (DN 194) is DENIED.