Dunlap v. Alaska Radiology Assocs., Inc.
Dunlap v. Alaska Radiology Assocs., Inc.
2018 WL 11462402 (D. Alaska 2018)
November 5, 2018
Burgess, Timothy M., United States District Judge
Summary
The Court found that certain documents and ESI exchanged between Imaging Associates and two outside companies were relevant to Dunlap's employment retaliation claims. The Court granted Dunlap's Motion to Compel as to RFP No. 12, ordering Imaging Associates to produce emails and text messages between the parties named in RFP No. 12 for the tenure of Dunlap's employment plus ninety (90) days after the date of Dunlap's termination. The Court also ordered Imaging Associates to produce ESI related to Dunlap's claims, including emails, text messages, and other documents stored electronically.
Additional Decisions
GREGORY DUNLAP, Plaintiff,
v.
ALASKA RADIOLOGY ASSOCIATES, INC., Defendant
v.
ALASKA RADIOLOGY ASSOCIATES, INC., Defendant
Case No. 3:14-cv-00143-TMB
United States District Court, D. Alaska
Signed November 05, 2018
Counsel
Margaret Simonian, Molly C. Brown, Dillon & Findley, P.C., Anchorage, AK, for Plaintiff.Rachel C. Lee, Stoel Rives LLP, Portland, OR, S. Lane Tucker, Stoel Rives LLP, Anchorage, AK, for Defendant.
Burgess, Timothy M., United States District Judge
ORDER RE: MOTION TO COMPEL (DKT. 139); MOTION TO EXTEND DEADLINE (DKT. 146); MOTION TO QUASH (DKT. 149); MOTION TO COMPEL (DKT. 152); REQUEST FOR ORAL ARGUMENT (DKT. 154); MOTION TO EXTEND TIME (DKT. 166); MOTION TO TAKE DEPOSITION (Dkt. 173).
I. INTRODUCTION
*1 Before the Court are seven related discovery motions: (1) Plaintiff's Motion to Compel;[1] (2) Plaintiff's Motion to Extend Deadline for Identifying Expert Witnesses;[2] (3) Defendant's Motion to Quash Dunlap's 2nd and 3rd Discovery Requests and to Limit Discovery to Claims Before the Court;[3] (4) Plaintiff's Cross Motion to Compel, for Rule 37 Sanctions, and for In Camera Review of Withheld Documents;[4] (5) Plaintiff's Request for Oral Argument;[5] (6) Plaintiff's Motion to Extend Deadlines and for a Rule 16 Conference;[6] and (7) Plaintiff's Motion to Take Deposition from Stevi Morton.[7]
For the reasons stated below: Plaintiff's Motion to Compel at docket 139 is GRANTED IN PART AND DENIED IN PART; Defendant's Motion to Quash at docket 149 and Plaintiff's Cross Motion to Compel at docket 152 are DENIED WITHOUT PREJUDICE; Plaintiff's Request for Oral Argument at docket 154 is DENIED AS MOOT; Plaintiff's Motion to Extend Time for Identifying Expert Witnesses at docket 146 is DENIED AS MOOT; Plaintiff's Motion to Take Deposition at docket 173 is DENIED AS MOOT; and, finally, Plaintiff's Motion to Extend Time to Complete Discovery and Request for a Rule 16 Conference at docket 166 is GRANTED.
II. BACKGROUND
Plaintiff Gregory Dunlap initiated this case on July 24, 2014 under the False Claims Act, (“FCA”) 31 U.S.C. § 3279 et seq.[8] Dunlap, who was Executive Director of Imaging Associates of Providence, LLC, now Imaging Associates, LLC (“Imaging Associates”), brought claims under the FCA against his then-employer, Imaging Associates, and numerous other defendants.[9] Dunlap's employment with Imaging Associates was terminated during the pendency of this suit, and when Dunlap subsequently amended his complaint, he included claims for employment retaliation.[10] Dunlap's claims at issue have since been narrowed.[11] What remains before the Court are two claims against Dunlap's former employer, Imaging Associates: Count V for Retaliatory Discharge in Violation of the False Claims Act; and Count VI for Breach of the Covenant of Good Faith and Fair Dealing.[12]
*2 Dunlap and Imaging Associates are now embroiled in a contentious discovery dispute, which has resulted in the motions presently before the Court. First, on April 9, 2018, Dunlap filed a Motion to Compel production of certain interrogatories and requests for production (“RFPs”) from Dunlap's first set of discovery requests (“First Motion to Compel”).[13] Imaging Associates opposed this motion on April 23, 2018.[14] Next, on May 9, 2018, Dunlap filed a Motion to Extend Deadline for Identifying Expert Witnesses,[15] (“Motion to Extend Time”) which Imaging Associates also opposed.[16]
While those motions were still pending, Dunlap submitted additional discovery requests to Imaging Associates.[17] In response, on June 4, 2018, Imaging Associates filed the third currently pending motion, a Motion to Quash Dunlap's 2nd and 3rd Discovery Requests and to Limit Discovery Before the Court (“Motion to Quash”).[18] On June 18, 2018, Dunlap filed the same document as both a Response in Opposition to Defendant's Motion to Quash[19] and as a “Cross Motion” to Compel, For Rule 37 Sanctions, and for In Camera Review of Withheld Documents (“Cross Motion to Compel”).[20] Imaging Associates, in response, filed the same document as a Reply and as a Response in Opposition.[21] Thus, although before the Court as separate motions, the same discovery requests are at issue in Imaging Associates’ Motion to Quash and Dunlap's Cross Motion to Compel.
Dunlap moved for oral argument on Imaging Associates’ pending Motion to Quash, which would necessarily encompass the same disputed discovery requests as Dunlap's Cross Motion to Compel.[22] Dunlap also filed a Motion to Extend Deadlines and for a Rule 16 Status Conference,[23] which Imaging Associates opposed.[24] Finally, on October 31, 2018, Dunlap filed a Motion to Take Deposition from Stevi Morton, seeking leave of the Court to depose Morton on December 6, 2018, after discovery is set to conclude.[25] This Motion states that “Imaging Associates does not oppose the limited request for this one deposition” but that “[t]his motion is necessary because attorneys for Imaging Associates refuse to allow (without a Court order) discovery past the November 16, 2018 deadline ... at docket 138.”[26]
*3 The parties fully briefed all of the above motions.[27]
The heart of the parties’ dispute—which lies in the First Motion to Compel, Motion to Quash, and Cross Motion to Compel—is the appropriate scope of discovery for Dunlap's remaining claims before the Court. Dunlap provided two sets of discovery requests to Imaging Associates. Dunlap's First Motion to Compel deals with discovery requests from the first set; Imaging Associates’ Motion to Quash and Dunlap's Cross Motion to Compel deal with requests from the second set of discovery requests. The Court summarizes the disputed requests below.
1. Dunlap's First Motion to Compel
Plaintiff's First Motion to Compel seeks to have Imaging Associates respond to two interrogatories and to produce documents responsive to a number of RFPs from Dunlap's first discovery request to Imaging Associates. Imaging Associates’ objections to the disputed requests can be found at docket 139-1, Exhibit A to Plaintiff's First Motion to Compel.[28]
*4 For all of the above requests, Imaging Associates objects to production or disclosure on relevance grounds, and asserts that the requests are only relevant to Dunlap's dismissed FCA claims and/or the issue of whether Dunlap engaged in protected conduct under the FCA, which is not disputed.[29] Dunlap acknowledges that these requests primarily concern the now-dismissed FCA claims, but maintains that discovery on those issues is relevant to the remaining employment claims.[30] Dunlap's First Motion to Compel also requests fees and costs associated with the discovery requests.[31]
2. Imaging Associates’ Motion to Quash and Plaintiff's Cross-Motion to Compel
Imaging Associates’ Motion to Quash and Dunlap's Cross-Motion to Compel both dispute the requests set forth in Dunlap's second set of discovery requests and in an email request sent by Dunlap's counsel to Imaging Associates on May 24, 2018.[32] Imaging Associates’ Motion to Quash articulates numerous objections to these discovery requests.[33]
Dunlap's Cross Motion to Compel raises two issues not addressed in Imaging Associates’ Motion to Quash. First, Dunlap contends that Imaging Associates provided incomplete responses to RFP Nos. 42, 44, 51, 56, and 57.[34] For RFP Nos. 42, 51, and 57, Dunlap contends that Imaging Associates’ “obstruction and unreasonableness” is part of a “pattern and practice” in which they “delay production by making documents available for inspection ... and then ignoring or delaying its response to a request to inspect the documents (or produce them).”[35] Dunlap further asserts that Imaging Associates’ responses to RFP Nos. 44 and 56 were “incomplete based on Imaging Associates’ view of relevance.”[36] Second, Dunlap requests in camera review of documents “purportedly protected by the attorney-client privilege,”[37] namely, certain Imaging Associates documents that HR Umbrella provided to Birch Horton, and that were forwarded on to the law firm Ashburn & Mason “in connection with a divorce proceeding.”[38] Imaging Associates does not contend that these documents are privileged, but “only that they were irrelevant to the decision to terminate Dunlap's employment.”[39] Third, and finally, Dunlap's Cross Motion to Compel moves for sanctions under Rule 37.[40]
III. LEGAL STANDARD
*5 Fed. R. Civ. P. 26(b)(1) defines the scope of discovery as follows:
Parties 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, considering 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.[41]
While “[b]road discretion is vested in the trial court to permit or deny discovery,”[42] under Fed. R. Civ. P. 26(b)(2)(C), a court “must limit the frequency or extent of discovery” if “the proposed discovery is outside the scope permitted by Rule 26(b)(1).” One of the requirements of Rule 26 is relevancy. “Relevanc[e] for discovery purposes is construed broadly”[43] but “ ‘[e]ven if evidence is discoverable under Rules 34, 33, and 25, the Rules contain some express constraints, boundaries both ‘ultimate and necessary’ on discovery's otherwise sprawling reach.”[44] Specifically, under Rule 26(b)(1), “discovery must be ‘proportional to the needs of the case.’ ”[45] “ ‘Rule 26(b) has never been a license to engage in an unwieldy, burdensome, and speculative fishing expedition.’ ”[46] Rather, “the parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.”[47]
Generally, a requesting party may move to compel the production of documents from a party that fails to make disclosures or cooperate in discovery.[48] Under Fed. R. Civ. P. 37(a)(3)(B), a party may move to compel discovery if another party fails to answer an interrogatory submitted under Rule 33 or fails to respond to a request for production under Rule 34.[49] In so moving, “[t]he party seeking to compel discovery has the burden of establishing that its requests satisfy the relevancy requirements of Rule 26(b)(1).[50] By that same token, “[t]he party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.”[51] Here, where Dunlap has moved to compel discovery, Dunlap bears the burden of showing the relevancy of his requests, while Imaging Associates— the party resisting discovery— bears the burden of clarifying, explaining, and supporting its objections to Plaintiff's document requests.
*6 Just as a party seeking discovery may move to compel, Fed. R. Civ. P. 26(c) provides that “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”[52] Similar to other discovery rules, “Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.”[53] “Under Rule 26(c), the party seeking the protective order must show good cause to preclude or limit the discovery.”[54] To establish good cause, the moving party must “point to specific facts that will support the request” and cannot rely on “conclusory or speculative statements” or a “mere showing that the discovery may involve some inconvenience or expense.”[55]
Before discussing whether certain discovery requests are relevant to Dunlap's claims, the Court finds it necessary to outline not only the standards for relevance, as detailed above, but also the elements of the specific claims Dunlap seeks to prove. “A plaintiff alleging a FCA retaliation claim must show three elements: (1) that he or she engaged in protected activity under the statute; (2) that the employer knew the plaintiff engaged in protected activity; and (3) that the employer discriminated against the plaintiff because he or she engaged in protected activity.”[56]
“For purposes of the first element, [the plaintiff] engaged in protected activity if [he or she] reasonably believed that [their employer] was possibly committing fraud against the government, and [plaintiff] investigated the possible fraud.[57] Specifically, “[a] retaliation plaintiff ... need prove only that the defendant retaliated against him for engaging in ‘lawful acts done ... in furtherance of’ an FCA ‘action filed or to be filed ... language that protects an employee's conduct even if the target of an investigation or action to be filed was innocent.”[58] “[T]he plaintiff need not show that the defendant actually submitted a false claim in violation of 31 U.S.C. § 3729, only that he suspected the defendant submitted a false claim.”[59]
*7 Second, a plaintiff must prove that an employer knew about the conduct: “Unless an employer is aware that its employee is investigating fraud, the employer cannot “possess the retaliatory intent necessary to establish a violation of § 3730(h).”[60] And, under Ninth Circuit law, to prove the last element—discrimination—“behavior does not constitute retaliation under the False Claims Act ... unless it would be sufficient to constitute an adverse employment action under Title VII.”[61] “Courts generally analyze this question under the burden-shifting rules the Supreme Court articulated in McDonnell Douglas Corp. v. Green.”[62]
Similarly, for Dunlap's claims against Imaging Associates for breach of the covenant of good faith and fair dealing, Dunlap “must demonstrate that (1) [he] engaged in protected activity, (2) [his] employer subjected [him] to adverse employment action, and (3) there is a causal connection between [his] protected activity and the employer's action.”[63] Under Alaska law, “once a plaintiff has established a prima facie case, an employer may rebut the inference of retaliation by demonstrating a legitimate, non-retaliatory explanation for the adverse employment action. If the employer rebuts the employee's prima facie case, the burden of proof shifts back to the employee to show that the employer's explanation is a pretext for retaliation.”[64]
IV. ANALYSIS
To address any of the motions now pending, the Court must first untangle the web of requests, arguments, and factual disputes that Dunlap and Imaging Associates have woven through their various filings. The gravamen of the dispute raised in Dunlap's Motion to Compel, Imaging Associates’ Motion to Quash, and Dunlap's Cross-Motion to Compel is the relevance of the discovery requests at issue. The parties’ discovery motions also raise, however, numerous ancillary issues that speak more to the clear breakdown of good faith communications than to any legal issue.[65] In so doing, the parties obscure the issues before the Court, and unnecessarily complicated this Court's task in resolving the fundamental issues necessary to proceed toward resolution of this case. The parties similarly continue to differ in their estimation of the need for additional time to conclude discovery, as evidenced by Imaging Associates’ opposition to both of Dunlap's motions that would extend the pretrial timeline.[66] These issues notwithstanding, the Court focuses today on those disputes that must be resolved in order to move the discovery process forward.
*8 The primary dispute between the parties here is regarding the relevance of Dunlap's discovery requests. Fundamentally, Imaging Associates objects to certain of Dunlap's discovery requests; namely, those “specific requests” that Imaging Associates contends are “intended to discover information related to claims that have been dismissed.”[67] Imaging Associates asserts that the requests at issue are not relevant to the two remaining claims, and that “[n]owhere do the Civil Rules permit Dunlap to conduct discovery relative to claims that are no longer before the Court.”[68]
Notably, neither the FCA retaliation claim nor the claim for breach of the covenant of good faith requires as an element—or even requires the court consider as a factor—the veracity of any underlying assertions of fraud.[69] Dunlap, however, maintains that discovery on the now-dismissed FCA claims are still relevant to the two employment claims remaining in this action, and that he is entitled to conduct discovery on those claims.[70] Dunlap asserts that responses to the disputed requests “will bolster Mr. Dunlap's claims that Imaging Associates engaged in unlawful conduct, and then fired Mr. Dunlap in retaliation for his insistence that it confirm its practice with the law, and that it end the fraudulent conduct.”[71] In so contending, rather than detail why this information is relevant to the remaining claims, Dunlap relies heavily on Blakeslee v. Shaw Infrastructure, Inc.,[72] for the proposition that any misconduct that may have formed the basis for an underlying FCA claim remains discoverable in an employee's FCA employment retaliation action.[73]
Two key points distinguish Blakeslee from the instant action: First, as Dunlap acknowledges,[74] the plaintiff in Blakeslee never raised his FCA claims in court or to any other government agency. Rather, that plaintiff's termination occurred after he informed the corporation's CEO of the alleged fraud.[75] Thus, the court reasoned, “a company with real misconduct to hide would have more motive to terminate a whistle-blowing employee than would a company with clean hands.”[76] The Blakeslee Court highlighted this distinction in ruling on the relevance of discovery requests that went only to the alleged fraud, rather than the termination:
“If Blakeslee had informed a government agency about the alleged fraud and then been terminated, his retaliation claim would not depend so heavily on proving that Shaw intended to conceal fraud. The “cat” would already have been “out of the bag,” so to speak. Instead, Blakeslee informed Shaw's CEO about the alleged misconduct. Thus, Blakeslee can plausibly prove retaliation by showing that Shaw wanted to cover up or at least ignore the fraud.”[77]
*9 Dunlap's circumstance here differs, and the same logic does not apply. Unlike Blakeslee, Dunlap presented his allegations of misconduct to this Court—and, in fact, had several opportunities to do so. Dunlap filed his qui tam action in July 2014 before he was terminated by Imaging Associates.[78] He has since amended his complaint twice, and was afforded an opportunity to do so a third time.[79] Here, unlike in Blakeslee, the “cat” is already “out of the bag” and Dunlap's retaliation claims thus do “not depend so heavily on proving that [his employer] intended to conceal fraud.”[80] Furthermore, “[i]n this case it is not disputed that Dunlap engaged in protected activity under the False Claims Act – after all, he filed the instant action.”[81]
Second, 2015 amendments to the Federal Rules of Civil Procedure 26 since Blakeslee have changed the standard under which discovery requests are evaluated. Now, the Court must evaluate not only the relevance of the request to a party's claim or defense, but also, the new rule “restor[es] proportionality as an express component of the scope of discovery.”[82] Thus, not only is Blakeslee distinguishable from Dunlap's present circumstances factually, the standard under Fed. R. Civ. P. 26(b) has changed since that case was decided. The Court must now balance the relevance of Dunlap's requests against a number of factors, including, inter alia, “whether the burden or the expense of discovery outweighs its likely benefit.”[83]
Accordingly, the Court is unpersuaded that the reasoning in Blakeslee—that discovery requests relevant to FCA claims are automatically discoverable in an action for FCA retaliation—applies to the instant case. This case now involves only two claims: Count V, retaliation for protected activity under the False Claims Act, and Count VII, Dunlap's claim for breach of the implied covenant of good faith and fair dealing based upon an alleged retaliatory discharge, the elements for which were detailed above. Where, as here, the FCA claims have been brought and dismissed, the party seeking to compel discovery must show their discovery requests are relevant to the specific claims presently before the court to ensure that discovery is not used as a fishing expedition to explore already-dismissed claims.
The Court now addresses each of the discovery requests at issue in turn.
1. First Set, Interrogatories 1 and 2
Dunlap's first two interrogatories seek, respectively: (1) the names of the Imaging Associates board members from 2012 through the present; and (2) the names of the “principals of Imaging Associates” from August 2012 through the present.[84] Imaging Associates asserts that they provided Dunlap responses to both interrogatories for the time “at the time Dunlap's employment was terminated,”[85] and Dunlap even states that “Imaging Associates identified six names ... as members of the board.”[86] Regarding the first interrogatory, Imaging Associates asserts that responses to this interrogatory for any time after Dunlap's firing are “entirely irrelevant to the claims remaining in this litigation.”[87] Dunlap, however, contends that “[h]e is also entitled to know who served on the board after he left, and whether the issues he identified were addressed or discussed” which he states “is relevant to his claims, including the FCA claims and the state employment claims.”[88] Such a conclusory assertion is insufficient. Dunlap fails to articulate how the information sought is relevant to the disputed elements of the claims remaining—which does not include “the FCA claims” mentioned above. Imaging Associates terminated Dunlap in August 2014, over four years ago, and Dunlap provides only a cursory explanation as to why the names of individuals holding certain positions nearly four years later would remain relevant to his claims.
*10 Through the second interrogatory, Dunlap seeks to discover the name of “principals” because, inter alia, he contends that “whether Imaging Associates decided to change its business practices after it terminated Mr. Dunlap is also relevant.”[89] Imaging Associates contends that no such title exists, but that the term was used to refer to three specific individuals: Dr. Reed, Dr. Inampudi, and Dr. Kottra, whose names Dunlap is aware of.[90] Dunlap's Motion to Compel, in arguing for this disclosure, merely states “[t]he names of the individuals who serve on the board are indeed relevant,” and does not clarify which positions it sought to describe in Interrogatory 2.[91] Absent such an explanation, the Court cannot compel Imaging Associates to produce anything, as the very subject of the question remains unclear.
Accordingly, the Court DENIES Plaintiff's First Motion to Compel with respect to Interrogatories 1 and 2.
2. First Set, RFP Nos. 3, 4, 13, and 14
Dunlap's RFP Nos. 3, 4, 13, and 14 seek production of “all documents” either “exchanged between” or “to and/or from” Imaging Associates and two outside companies, Aegis Compliance & Ethics Center, LLP (“Aegis”) (RFP Nos. 3 and 13) and HR Umbrella (RFP Nos. 4 and 14). Imaging Associates retained both companies to perform internal audits.[92] The parties agree that Aegis performed an audit of Imaging Associates’ vein therapy program, whose operations were central to Dunlap's initial FCA claims.[93] Similarly, the parties agree that Imaging Associates retained HR Umbrella to conduct numerous personnel audits, one of which reviewed the vein therapy program.[94] Imaging Associates has already provided that HR Umbrella report to Dunlap; in fact, Dunlap provided it to the Court as an exhibit to his Motion to Compel,[95] which “include[d] the Aegis audit as an attachment.”[96]
Certainly, the Aegis and HR Umbrella audit reports concerning the allegations that formed the basis of Dunlap's eventual FCA claims could provide information relevant to his employment retaliation claims. But those audits have been produced. Dunlap's request seeks production of “all [d]ocuments exchanged between” or “to and/or from” Imaging Associates and the two named companies,[97] but fails to articulate how the remaining requests bear on the present action. Regarding the Aegis communications and documents, Dunlap merely restates the allegations set forth in his Second Amended Complaint, and then asserts that “[t]he Aegis audit, including the information exchanged with Aegis, is relevant to Mr. Dunlap's claim.”[98]
And, regarding any documents from HR Umbrella, Dunlap states that “Imaging Associates agreed that documents [requested in RFP Nos. 4 and 14] would be produced if they related to Mr. Dunlap and were dated before his termination.”[99] Imaging Associates states that the other HR Umbrella reports captured by these RFPs “investigated other complaints concerning other employees” and “have no connection to Dunlap whatsoever, but deal with situations affecting employees other than Dunlap.”[100] While it may be that those documents are somehow relevant to the two claims remaining before this court, Dunlap has not established that through his Motion to Compel. Accordingly, the Court DENIES Dunlap's Motion to Compel as to RFP Nos. 3, 4, 13, and 14.
3. First Set, RFP Nos. 5 and 12
Dunlap's RFP No. 5 seeks “all documents to and/or from Imaging Associates and AngioDynamics related to the laser described in the Second Amended Complaint at ¶¶ 40-48,”[101] and RFP No. 12 seeks “all documents exchanged between Imaging Associates and AngioDynamics, including emails and text messages to and/or from Gregory Dunlap, Janet Stookey, Dr. Chakri Inampudi, and J. Keith Radecic.”[102]
*11 The laser described in RFP No. 5 was at issue in one of Dunlap's now-dismissed FCA claims.[103] In justifying the relevance of these requests, Dunlap asserts that he discussed with Imaging Associates that he “believed there were serious issues with the use of [the] laser” and that “Imaging Associates ignored [his] warnings, and continued to use the laser.”[104] Neither of these justifications goes to the continued relevance of this request to Dunlap's employment retaliation claims; rather, his request, as articulated, pertains only to the underlying conduct at issue in his dismissed FCA claim. Absent some showing of relevance to the elements of the remaining claims, the Court cannot justify requiring production. Accordingly, the Court DENIES Dunlap's First Motion to Compel as to RFP No. 5.
Regarding the communications requested in RFP No. 12, Dunlap contends that “following [his] repeated warnings ... Imaging Associates modified Mr. Dunlap's duties and removed him from supervising any and all matters related to the Imaging Associates vein program.”[105] The Court finds that this request may have some bearing on Dunlap's present claims if, as he contends, the communications at issue contain information about Imaging Associates’ motive and intent in modifying Dunlap's role within the organization. However, Dunlap's request, as worded, is overbroad and is not sufficiently tailored to the communications relevant to his claims. Accordingly, the Court GRANTS Dunlap's First Motion to Compel as to RFP No. 12; however, Imaging Associates must produce only those emails and text messages between the parties named in RFP No. 12 and only for the tenure of Dunlap's employment plus ninety (90) days after the date of Dunlap's termination.[106]
4. First Set, RFP Nos. 7, 8, and 9
Dunlap's RFP No. 7 requests that Imaging Associates “produce the joint venture agreement between [Interventional Diagnostic Radiology Consultants, LLC (“IDRC”)] and Providence Alaska Medical Center related to Imaging Associates.”[107] Dunlap asserts that “[t]hree individuals each from IDRC and Providence manage Imaging Associates through a professional management board” and that “a copy of the joint venture agreement” will allow Dunlap to “understand how Imaging Associates decisions are made.”[108] Similarly, RFP No. 8 requests that Imaging Associates produce “all executive management and professional service agreements that describe physician or health care provider services at Imaging Associates,” and RFP No. 9 requests “all executive management and professional service agreements that describe physician or health care provider services at Providence Alaska Medical Center.”[109] Dunlap claims these requests “will provide the names of people who worked at Imaging Associates, and [their] duties and obligations.”[110] Dunlap asserts “[a]ll of this information is relevant” because he “alleges ... that Imaging Associates, through its employees, relied on and used registered nurses ... to sign orders for certain tests,” and that “RFPs 8 and 9 are relevant to that analysis.”[111]
In opposition, Imaging Associates contends that the information sought in all three of these requests is irrelevant to the remaining claims. Regarding RFP No. 7, Imaging Associates notes that it has already provided Dunlap copies of both its Operating Agreement and its Management Services Agreement, and that “no joint venture agreement that may exist ... will shed light on” the elements still at issue in the remaining claims.[112] Moreover, Imaging Associates contends, the materials sought in RFP Nos. 8 and 9 do not relate to the remaining claims at issue, namely, the retaliation claims.[113]
*12 For the same reasons previously discussed, the Court does not find these requests—which Dunlap justifies by resting on the argument that he can conduct discovery on his dismissed FCA claims— to be relevant. Accordingly, the Court DENIES Dunlap's First Motion to Compel as to RFP Nos. 7, 8, and 9.
5. First Set, RFP No. 10
The same analysis articulated for RFP Nos. 7, 8 and 9 applies to the request Dunlap advances with RFP No. 10, which seeks “Documents that establish the hours and days when Dr. Chakri Inampudi worked at Imaging Associates from August 2012 through August 2014.”[114] Dunlap contends that this request “will establish the validity of Mr. Dunlap's concerns” that “Dr. Inampudi allowed an Imaging Associates nurse to affix his signature on orders on dates when he could not have seen patients.”[115] Imaging Associates responds that “there are no records ... that are intended to track [Dr. Inampudi's schedule]” and that the request is irrelevant to the claims presently before the Court.[116]
Dunlap contends that disclosure of Dr. Inampudi's schedule is relevant because it “will establish the motive and bias of Dr. Inampudi,” who Dunlap contends was “directly involved in the decision to terminate Mr. Dunlap.”[117] The Court is unpersuaded by this assertion in light of the Dunlap's further assertion that this information—Dr. Inampudi's schedule—will somehow “establish the validity” of Dunlap's “concerns” regarding disputed Imaging Associates procedures raised in his now-dismissed FCA claims. The claims relating to those “concerns” are no longer before the Court, and Dunlap has provided no justification beyond that why RFP No. 10 is relevant to the current claims before the Court. Accordingly, the Court DENIES Dunlap's First Motion to Compel as to RFP No. 10.
6. First Set, RFP No. 33
Finally, RFP No. 33 seeks to compel production of “Imaging Associates’ operating agreement in place from August 2012 to present,”[118] asserting that the agreement “presumably establishes the rights and responsibilities of the LLC members, including how decisions are made” and stating “such a document is clearly relevant to this case.”[119] Imaging Associates states that they have “produced the requested document”[120] and attached this document as Exhibit 2 to their opposition.[121] The Court therefore DENIES AS MOOT Dunlap's First Motion to Compel as to RFP No. 33.
The Court now turns to Dunlap's second set of discovery requests, and the motions relating to those requests. While Dunlap's First Motion to Compel was pending, Dunlap lodged a second discovery request with Imaging Associates. In response, Imaging Associates filed a “Motion to Quash” several of those requests, as well as an email request transmitted from Dunlap's Counsel to Imaging Associates’ Counsel on May 24, 2018. Dunlap, in response, cross-moved to compel responses to the same requests that Imaging Associates sought to extinguish.
Imaging Associates’ Motion to Quash is, as an initial matter, a procedural misnomer, a fact with more ramifications than Imaging Associates would like to admit. Although Imaging Associates contends that “there is absolutely nothing in the English language that restricts the use of the word ‘quash’ to efforts to negate a subpoena,”[122] that correct statement ignores the fact that the standards articulated by the Federal Rules of Civil Procedure for movants who seek to quash a subpoena under Rule 45(d) differ from the standards articulated for those who seek a protective order under Rule 26(c). A party seeking this Court's intervention in the discovery process, whether through quashal or a protective order, must articulate the standard under which it so moves.
*13 Imaging Associates has not successfully done so. Imaging Associates’ motion requests the Court “quash [Dunlap's] subsequent discovery requests ... [and] enter an order limiting discovery in this case to the claims at bar.”[123] No subpoena is at issue here; thus, the standard under Rule 45 is inapplicable, as both parties agree.[124] In their Reply, Imaging Associates asserts— after the fact of their initial filing— that the motion appearing at docket 149 “is a motion for a protective order.”[125] Yet Imaging Associates does not anywhere in their Motion to Quash specifically request a protective order, nor do they argue the standard articulated by Rule 26(c) for such an order, which requires a showing of “good cause ... to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”
This Court cannot retroactively transform one motion into another, nor does the Court find it appropriate to evaluate such a motion where the standard under which the moving party requests relief is not clearly articulated in its initial filing. Accordingly, Imaging Associates’ Motion to Quash at docket 149 is DENIED WITHOUT PREJUDICE. Imaging Associates may move for a protective order with specific requests to the Court that will limit the scope of discovery under the Rule 26 standard.
As Dunlap's Cross Motion to Compel was filed “[i]n response” to the Motion to Quash “to protect Mr. Dunlap's Interest,”[126] the Cross Motion to Compel and Motion for In Camera Review at docket 152 is likewise DENIED WITHOUT PREJUDICE. Should Imaging Associates seek a protective order for the requests at issue in the future, Dunlap may refile any motion necessary in response. Finally, Dunlap's Motion for Oral Argument on the Motion to Quash and Cross-Motion to Compel at docket 154 is DENIED AS MOOT.
In so ruling, the Court does not reach the issue of relevance for the discovery items at issue in the second set of discovery requests, nor does it resolve any other substantive issues raised therein regarding the specific discovery requests. The Court advises both parties, however, that the same analysis the Court applied to Dunlap's First Motion to Compel would apply to any future discovery disputes that turn on the issue of relevance. Both parties should seek to modify any future requests and any future responses accordingly.
Nor does the Court reach Dunlap's request for in camera review of certain requested documents over which Dunlap contends Imaging Associates has asserted attorney-client privilege. Imaging Associates, however, does not seem (based on their briefing here) to assert any such privilege over those documents, but asserts an objection based, again, on relevance.[127] The analysis above thus applies to any future renewal of this particular request as well.
Dunlap's First Motion to Compel also seeks fees and costs under Fed. R. Civ. P. 37.[128] Under Rule 37, “[i]f the motion [compelling disclosure or discovery] is granted ... the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” However, “the court must not order this payment if ... the opposing party's nondisclosure, response or objection was substantially justified.”[129] Similarly, if the motion is denied, the court “must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses.[130]” Where a motion is granted in part and denied in part, the court “may, after giving an opportunity to be heard, apportion reasonable expenses for the motion.”[131]
*14 Here, the Court has granted in part and denied in part Dunlap's First Motion to Compel; thus, Rule 37(a)(5)(C) applies, which “grants the court discretion” in determining appropriate costs.[132] The Court does not find award of fees or costs appropriate here. Accordingly, Dunlap's request for fees and costs at docket 139 is DENIED WITH PREJUDICE.
Dunlap's Second Motion to Compel requests the Court to impose sanctions on Imaging Associates pursuant to Fed. R. Civ. P. 36 and 37, specifically through an award of fees and costs as well as an order.[133] Dunlap asserts that sanctions are justified because “Imaging Associates failed to respond to discovery” and that Imaging Associates “responses are also evasive and incomplete[.]”[134] Imaging Associates contends in reply that “it is Dunlap who did not meet his obligation to meet and confer before filing his motions to compel. If sanctions were to be imposed relative to Dunlap's request, it should be Dunlap that is sanctioned.”[135]
The Court reminds both parties that under Local Rule 37.1, “[a]bsent exigent circumstances, counsel for the moving party must confer in person ... with counsel for the party against whom relief is sought in an effort to resolve any discovery dispute before filing a motion to compel discovery or for sanctions under Rule 37, Federal Rules of Civil Procedure.”[136] Dunlap and Imaging Associates provide evidence here of substantial, albeit evidently ineffective, communication between them, and advance differing explanations for why such an in-person meeting was never held.[137] Regardless, neither party asserts that such an in-person meeting took place, which precludes any motion for sanctions. Even if the Court were to construe the parties’ communications as substantial compliance with Local Rule 37.1, though, sanctions are imposed at the Court's discretion, and the Court here does not find that any such imposition would be appropriate. Accordingly, Dunlap's motion for Rule 37 sanctions at docket 152 is DENIED WITH PREJUDICE.
The final three motions before the Court are Dunlap's Motion to Extend Deadline for Identifying Expert Witnesses,[138] Motion to Extend Deadlines and for a Rule 16 Conference,[139] and Motion to Take the Videotaped Deposition of Stevi Mortion.[140] First, because Dunlap's motion to extend the time to identify expert witnesses was not ruled on before the deadline expired, and both Dunlap and Imaging Associates filed expert witness lists with the Court on September 17, 2018,[141] the Court DENIES AS MOOT Dunlap's Motion at docket 146. The Court will treat the parties’ filings at docket 169 and docket 170 as timely, and will allow for future amendments pursuant to a new pretrial scheduling order. Second, in light of the issues addressed in this Order, the Court GRANTS Dunlap's Motion to Extend Deadlines and for a Rule 16 Conference at docket 166. All previously scheduled discovery deadlines are stayed pending a status report from the parties and status conference, after which the Court will issue a new scheduling order.
*15 Finally, Dunlap has filed an Unopposed Motion to Take the Videotaped Deposition of Stevi Morton Dunlap. Dunlap asserts this motion is necessitated by the November 16, 2018 discovery deadline. The Court has now stayed that deadline; accordingly, Dunlap's Motion to take Deposition at docket 173 is DENIED AS MOOT.
V. CONCLUSION
For the foregoing reasons, the Court HEREBY ORDERS the following:
1. Plaintiff's Motion to Compel at docket 139 is GRANTED IN PART and DENIED IN PART. Within fourteen (14) days of this Order, Imaging Associates must supply responses to RFP No. 12. In all other respects, Dunlap's Motion is denied without prejudice;
2. Plaintiff's Rule 37 Motion for costs at docket 139 is DENIED WITH PREJUDICE;
3. Imaging Associates’ Motion to Quash at docket 149 is DENIED WITHOUT PREJUDICE;
4. Plaintiff's Motion to Compel, For Rule 37 Sanctions, and for In Camera Review at docket 152 is DENIED WITHOUT PREJUDICE;
5. Plaintiff's Request for Oral Argument at docket 154 is DENIED AS MOOT;
6. Plaintiff's Motion to Extend Deadline for Identifying Expert Witnesses at docket 146 is DENIED AS MOOT;
7. Plaintiff's Motion to Take Deposition at docket 173 is DENIED AS MOOT;
8. Plaintiff's Motion to Extend Deadlines and For a Rule 16 Conference at docket 166 is GRANTED. All discovery deadlines in the Court's Scheduling and Planning Order at docket 138 are hereby STAYED;
9. The parties are directed to meet and confer and to file, within seven (7) days of the date of this Order, a joint status report advising the Court when they anticipate discovery will conclude; and
10. A status conference will be held on November 19, 2018 at 10:30 A.M. in Anchorage Courtroom 1 before Judge Timothy M. Burgess, after which the Court shall issue new discovery deadlines to the parties.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 5th day of November, 2018.
Footnotes
Dkt 139.
Dkt. 146.
Dkt. 149.
Dkt. 152 (Cross Motion to Compel); also Dkt. 150 (same, as Response in Opposition).
Dkt. 154.
Dkt. 166.
Dkt. 173.
Dkt. 1.
Dkt. 1. Dunlap's initial claims were under the False Claims Act, 31 U.S.C. §§ 3729 et seq.
See Dkt. 11 at 3–4 (“Relator [Dunlap] was fired on August 13, 2014, in retaliation for complaining internally about various violations of federal law.”); Id. at 30–33 (Claims for Retaliatory Discharge in Violation of False Claims Act, Wrongful Termination, and Breach of Covenant of Good Faith and Fair Dealing against Imaging Associates).
Dunlap amended his complaint twice: first after the United States’ declination, and later after the Court granted in part a motion to dismiss certain claims and parties pursuant to Fed. R. Civ. P. 8(a), 9(b) and 12(b)(6). See Dkt. 11 (Amended Complaint); Dkt. 75 (Second Amended Complaint). The Court dismissed with prejudice Count VI of Plaintiff's First Amended Complaint, a claim in tort purported to be for retaliatory termination under Alaska law. Dkt. 74. Then, on March 31, 2017, pursuant to motion by the parties, the Court dismissed all of the FCA claims and several parties named in Dunlap's Second Amended Complaint. Dkt. 121. The Court dismissed without prejudice the following claims: Count I as to all defendants, Count II as to Imaging Associates and Dr. Inampudi, and Counts III and IV as to Imaging Associates and Drs. Inampudi, Winn, Coyle, Kottra, Tauschek, and Powers. Id. Plaintiff has not refiled those claims and the Court's deadline for him to do so has now passed.
Dkt. 139. Plaintiff specifically sought responses to interrogatories 1 and 2, and for production of RFP 3, 4, 5, 7, 8, 9, 10, 12, 13, 14, and 33. Dkt. 139 at 4–5.
Dkt. 142.
Dkt. 146.
Dkt. 147.
Imaging Associates contends that Dunlap filed two additional discovery requests. See Dkt. 149 at 1 (“Dunlap has propounded two additional discovery requests to Imaging Associates.”). Dunlap asserts, however, that he submitted only one additional request, and that an email on May 24, 2018, was not a formal discovery request. Dkt. 152 at 6–7. The Court does not find it necessary to resolve this dispute as it does not bear on the rights of the parties at this time.
Dkt. 149. For clarity, the Court will refer to this motion as Imaging Associates’ “Motion to Quash” throughout this Order. This name is based on Imaging Associates’ docketing and initial characterization of the motion, and does not carry any further meaning as to the procedural propriety of the motion.
Dkts. 150–151.
Dkts. 152–153. Again, as with the Motion to Quash above, the Court retains the movant's naming convention for clarity and does not communicate any meaning whatsoever as to the procedural propriety of the motion or its characterization as a cross-motion to compel.
Dkts. 156, 157.
Dkt. 154.
Dkt. 166.
Dkt. 167.
Dkt. 173 at 1–2.
Dkts. 139–141, 142, 145 (First Motion to Compel); Dkts. 146, 147, 148 (Motion to Extend Deadline for Identifying Expert Witnesses); Dkts. 149, 150–151, 156 (Motion to Quash); Dkts. 152–153, 157–158, 161 (Second Motion to Compel); Dkt. 154 (Request for Oral Argument); and Dkts. 166, 167, 168 (Motion to Extend Time to Complete Discovery). Dkt. 173 is filed as an unopposed motion.
Dkt. 139-1. Specifically, Dunlap seeks to compel production of the following: (1) Responses to Interrogatories No. 1 and 2, which ask Imaging Associates to provide the names of individuals on the Imaging Associates’ Management Board from August 2012 through the present (Interrogatory 1) and the names of the principals of Imaging Associates from August 2012 until present (Interrogatory 2); (2) RFP Nos. 3 and 13 requesting all documents to and/or from, or exchanged between, Imaging Associates and Aegis Compliance & Ethics Center, LLP; (3) RFP Nos. 4 and 14, requesting all documents to and/or from, or exchanged between, Imaging Associates to HR Umbrella; (4) RFP No. 5, requesting all documents to and/or from Imaging Associates and AngioDynamics related to the laser described in the Second Amended Complaint; (5) RFP No. 7, requesting the joint venture agreement between IDRC and Providence Alaska Medical Center related to Imaging Associates; (6) RFP No. 8, requesting all executive management and professional service agreements that describe physician or health care provider services at Imaging Associates; (7) RFP No. 9, requesting all executive management and professional service agreements that describe physician or health care provider services at Providence Alaska Medical Center; (8) RFP No. 10, requesting Documents that establish the hours and days when Dr. Chakri Inampudi worked at Imaging Associates from August 2012 through August 2014; (9) RFP No. 12, requesting all documents exchanged between Imaging Associates and AngioDyamics, including emails and text messages to and/or from Gregory Dunlap, Janet Stookey, Dr. Chakri Inampudi, and J. Keith Radecic; (10) RFP No. 33, requesting Imaging Associates’ operating agreement in place from August 2012 to present.
Dkt. 142 at 2–3.
Dkt. 145 at 2–3.
Dkt. 139 at 15.
Imaging Associates, through their Motion to Quash, objects to the following requests: (1) Interrogatories 3-7, which ask Imaging Associates to provide the names of the individuals who authorized J. Keith Radecic to send the June 11, 2014 email to Imaging Associates staff that is described in the HR Umbrella investigative report, “[D]escribe the ‘recommendations in the Aegis report’ that were ‘completed’ ” and explain why, and a parallel request for the “not ‘completed’ ” recommendations; Provide the names of all individuals who made the decision to “ ‘complete’ or adopt the ‘recommendations in the Aegis report;’ ” and “[D]escribe how the ‘CEO and Medical Director’ of Imaging Associates ‘addressed’ the ‘complaints’ filed or made by Gregory Dunlap”; (2) RFPs Nos. 59–63, requesting all documents related to Interogatories Nos. 3–7; (3) RFP Nos. 43, 45, 46, 47, and 48, requesting all documents to and/or from the email address ara-board@googlegroups.com that refer to Aegis, HR Umbrella, the instant lawsuit, Janet Stookey, and Imaging Associates; (4) RFP No. 49, the “ ‘memo regarding transportation for Valley patients’ referenced in IA 000407;” (5) RFP No. 50, the “Policies and Procedures for the operations of the Radiology Group Practice Facilities,” described in the Management Services Agreement at IA 00585; (6) RFP No. 53–54, documents that “evidence meeting dates of the ‘Board of Managers,’33 as well as recordings, meeting minutes, and “any other documents that relate to meetings of the ‘Board of Managers;’ ” (7) RFP No. 55, 58, documents “related to the ‘upkeep’ of the laser described in the Second Amended Complaint at ¶¶ 40-48” and “all documents related to the “pre-signed prescription pads used in the vein therapy program.” Dkt. 149-1. The disputed May 24, 2018 email request is docketed at 149-2, as Exhibit 2 to Imaging Associates’ Motion to Quash. That email requested documents provided by HR Umbrella to Birch Horton “regarding Vein Therapy Program and regarding Vendor Relationship.” See Dkt. 149-2 at 1 (May 24, 2018 email from Molly Brown to Sean Halloran disputing characterization of the requested documents as privileged). Dunlap's Reply at docket 161 indicates that these documents were “requested in [RFP] Nos. 4 and 14, in which Mr. Dunlap requests all documents exchanged and/or to or from Imaging Associates and HR Umbrella.”
Dkt. 152 at 19.
Dkt. 157 at 3–4.
Dkt. 152 at 23–24. Dunlap specifically contends that Imaging Associates failed to timely comply with the discovery requests in violation of Fed. R. Civ. P. 33 and 34, and provided “evasive and incomplete” responses. Id.
Dunlap's First Motion to Compel cites to Alaska Civil Rule 26, which articulates a different standard for relevance from the Federal Rules of Civil Procedure. That rule is inapplicable here.
Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).
Basargin v. State Farm Mutual Auto. Ins. Co., No. 3:16-cv-00031, 2017 WL 8677339, at *1 (D. Alaska Feb. 21, 2017) (citing E.E.O.C. v. Wal-Mart Stores, Inc., 276 F.R.D. 637, 641 (E.D. Wash. 2011) and Oppenheimer Fund, Inc. v. Sanders, 427 U.S. 340, 352–53 (1978)).
Basargin, 2017 WL 8677339, at *1 (quoting United States ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 237 (S.D. Cal. 2015) and Hickman v. Taylor, 329 U.S. 495, 506 (1947)).
Basargin., 2017 WL 8677339, at *1 (quoting Carter, 305 F.R.D. at 237 and Murphy v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1163 (10th Cir. 2010)).
Basargin, 2017 WL 8677339, at *1 (quoting Carter, 305 F.R.D. at 237 and Murphy, 619 F.3d at 1163).
Fed. R. Civ. P. 26, Advisory Committee Notes to 2015 Amendments, Subdivision (b)(1).
Fed. R. Civ. P. 37(a)(1).
Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv).
Louisiana Pacific Corp. v. Money Market 1 Institutional Inv. Dealer, 285 F.R.D. 481, 485 (N.D. Cal. Sept. 10, 2012) (citing Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995)).
DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 249 (9th Cir. 1975)); see also Louisiana Pacific, 285 F.R.D. at 485.
Imaging Associates contends in its Reply in Support of Motion to Quash at docket 156 that its use of the word “quash” was proper, but simultaneously argues that Imaging Associates’ Motion at Docket 149 “is a motion for a protective order.” See Dkt. 156 at 2. Regardless of the colloquial use, under the Federal Rules of Civil Procedure, a Motion to Quash is referenced only in Fed. R. Civ. P. 45(d)(3) in relation to the procedure for subpoenas. Fed. R. Civ. P. 26(c) references the use of a protective order in relation to other discovery requests. Accordingly, the standard discussed here is the standard for a protective order, as no subpoena is at issue such that the standard for quashal would be relevant.
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
Basargin, 2017 WL 8677338, at *3.
Basargin, 2017 WL 8677338, at *3 (quoting E.E.O.C v. Caesars Entm't, Inc., 237 F.R.D. 428, 432 (D. Nev. 2006) and Frideres v. Schlitz, 150 F.R.D. 153, 156 (S.D. Iowa 1993).
Mendiondo v. Centinela Hosp. Meidcal Cener, 521 F.3d 1097, 1103 (9th Cir. 2008) (quoting Moore v. Cal Inst. Of Tech. Jet Propulsion Lab., 275 F.3d 838, 845 (9th Cir. 2002); United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1269 (9th Cir. 1996)). These elements are also sometimes stated as requiring that the employee show that “(1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) there was a causal link between the protected activity and the adverse employment action.” Johnson v. Boeing Co., No. C17-0706RSL, 2017 WL 5458404, at *2 (W.D. Wash. Nov. 13, 2017) (citing Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065–66 (9th Cir. 2003)).
Mendiondo, 521 F.3d at 1104.
Graham Cty. Soil & Water Cons. Dist. v. U.S. ex rel Wilson, 545 U.S. 409, 416 (2005) (quoting 31 U.S.C. § 3730(h)). Put another way, “[l]iability under 31 U.S.C. § 3730(h) attaches, not as a result of the employer's actual or suspected fraud, but as a result of an employer's “retaliatory act against the investigating employee.” Neighorn v. Quest Health Care, 870 F. Supp. 2d 1069, 1091 (D. Or. 2012) (citing Mendiondo, 521 F.3d at 1103).
Neighhorn, 870 F. Supp. 2d at 1091.
Hopper, 91 F.3d at 1269.
Moore, 275 F.3d at 847–48.
Claire M. Sylvia, The False Claims Act: Fraud Against the Government § 5:25 (June 2018 Update) (collecting cases) (citing to McDonell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this framework, “[i]f the plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the adverse employment action.” Neighorn, 870 F. Supp. 2d at 1092 (citing to United States ex rel. Berglund v. Boeing Co., 835 F. Supp. 2d 1020, 1039–40 (D. Or. 2011) and to McDonnell Douglas, 411 U.S. at 802). Then, “[i]f the defendant successfully rebuts the inference of retaliation, the burden of production shifts back to the plaintiff to show that the defendant's explanation is merely a pretext for impermissible retaliation. Neighorn, 870 F. Supp. 2d at 1092. (citing Berglund, 835 F. Supp. 2d at 1040-41).
Lincoln v. Interior Reg'l Hous. Auth., 30 P.3d 582, 586 (Alaska 2001) (citing Miller v. Fairchild Indus., Inc., 797 F.2d 727, 730–31 (9th Cir. 1986)).
For example: the parties cannot agree on whether there were two or three discovery requests, see Dkt. 152 at 6–7; Dunlap alleges that Imaging Associates’ response to their second discovery request was untimely and in violation of both Rule 33 and Rule 34, see Dkt. 152 at 5–6; Both parties assert that the other has made misrepresentations to the Court in its filings, see, e.g., Dkts. 145 at 8, 152 at 7–8, 156 at 4–5; the parties each contend that the other is responsible for failure to satisfy their mutual obligation to meet and confer in good faith under D. Ak. L.R. 37.1, see Dkt. 156 at 8; Dunlap characterizes Imaging Associates’ behavior as “unsupported, obstructionist, and improper,” Dkt. 161 at 2; the parties cannot agree on what documents have already been produced, see Dkt. 152 at 7 and Dkt. 149 at 1 (both disputing whether third party representative of HR Umbrella produced certain documents); and, the parties disagree as to whether Imaging Associates has asserted privilege over certain responses, Dkts. 152 at 15, 156 at 7.
See Dkts. 146 (Dunlap's Motion to Extend Deadline to Identify Expert Witnesses), 147 (Opposition to Dkt. 146), and 148 (Reply to Opposition to Dkt. 146); Dkts. 166 (Motion to Extend Time to Complete Discovery), 167 (Response in Opposition to Dkt. 166), 168 (Reply).
Dkt. 142 at 3.
Dkt. 149 at 3.
See, e.g., Dkt. 139 at 2 (“Generally, Imaging Associates is taking the position that documents relevant to Mr. Dunlap's dismissed FCA claims are irrelevant and unavailable for discovery. Imaging Associates is wrong ... The requested documents are relevant to show the wrongful basis and motive for his termination.”); Dkt. 152 at 2 (stating that Imaging Associates’ Motion to Quash “repeats over and over again the same tired objections regarding its view of relevance”); also Dkt. 150 at 2 (same).
Dkt. 139 at 2.
No. 3:09-cv-0214-RRB, 2010 WL 2985812 (D. Alaska July 27, 2010).
Dkt. 145 at 2–3.
Dkt. 145 at 2 (stating “[t]he plaintiff in that case had asserted a FCA retaliation claim (just like Mr. Dunlap), but had not made separate fraud claims”).
Blakeslee at *1–2; Id. at *1 n.1; see also Second Amended Complaint, Dkt. 15 ¶¶ 12–15, Blakeslee v. Shaw Infrastructure, Inc., No. 3:09-cv-00214-RBB.
Dkts. 1, 11.
After the United States declined to intervene on February 10, 2015, see Dkt. 10 (Order Re Notice of Non-Intervention by United States), Dunlap amended his complaint. Dkt. 11. Several of those claims were dismissed without prejudice by the Court's March 2016 Order at docket 74 under Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 9(b). Dunlap filed a second amended complaint shortly thereafter, on April 29, 2016, at docket 75. The bulk of Dunlap's claims were again dismissed in March 2017 at docket 121 without prejudice. The Court provided Dunlap leave to file an amended complaint on or before April 21, 2017. Dunlap declined to do so.
Advisory Committee Notes, 2015 Amendments to Federal Rule of Civil Procedure 26.
Fed. R. Civ. P. 26(b)(1).
Dkt. 139-1, Interrogatory Nos. 1 and 2 (quotation marks from original).
Dkt. 142 at 5. Regarding Interrogatory 2, Imaging Associates contends that there is no specific position of “principal” but that they have previously used this term to refer to three individuals, Drs. Reed, Inampudi, and Kottra. Imaging Associates contends that to the extent this term can be construed to refer to officers, directors, or other personnel that may have participated in the decision regarding Dunlap's employment, the names of those persons at the time of Dunlap's termination have already been provided. Dkt. 142 at 5–6.
Dkt. 139 at 7.
Dkt. 142 at 7.
Dkt. 139 at 8.
Dkt. 139 at 8.
Dkt. 139 at 11–12.
Dkt. 139-4 (Exhibit D to Dunlap's Motion to Compel).
Dkt. 139 at 12.
Dkt. 139-1 at 2, 4 (RFP Nos. 3, 4, 13, and 14).
Dkt. 139 at 12.
Dkt. 142 at 7–8.
Dkt. 139-1 at 3.
Dkt. 139 at 9–10.
Dkt. 139 at 10.
Should the discovered material indicate that there are additional relevant documents outside this range, Dulap may make future requests for material not captured in the current discovery set upon a showing of relevance.
Dkt. 139-1 at 3.
Dkt. 139 at 6–7.
Dkt. 139-1 at 3.
Dkt. 139 at 12–13.
Dkt. 142 at 9.
Dkt. 139-1 at 4.
Dkt. 139 at 14.
Dkt. 142 at 10.
Dkt. 139 at 14.
Dkt. 139-1 at 8.
Dkt. 139 at 15.
Dkt. 142 at 11.
Dkt. 142-2 (Operating Agreement for Imaging Associates).
Dkt. 156 at 2.
Dkt. 149 at 2.
Dkt. 156 at 2.
Dkt. 153 ¶ 3 (Declaration of Molly C. Brown).
Dkt. 139 at 15.
Fed. R. Civ. P. 37(a)(5)(A)(ii).
Fed. R. Civ. P. 37(a)(5)(B).
Fed. R. Civ. P. 37(a)(5)(C).
Wilson v. Greater Las Vegas Ass'n of Realtors, No. 2:14–cv–00362–APG–NJK, 2016 WL 4087272 (D. Nev. July 28, 2016).
Dkt. 152 at 23–24.
Dkt. 156 at 8.
D. Ak. L.R. 37.1(a).
Dkt. 146.
Dkt. 166.
Dkt. 173.
Dkts. 169 (Witness list by Imaging Associates); 170 (Witness list by Dunlap).