Court Rejects Relator’s Cart-Before-the-Horse Approach to Privilege, Holding Relators (Like Defendants) Must Provide a Privilege Log

Last month, in U.S. ex rel. Randy Jacobs v. Advanced Dermatology & Skin Cancer Specialists P.C., a judge on the U.S. District Court for the Central District of California reached what should seem like an unremarkable conclusion — that the Federal Rules’ privilege log requirement applies to False Claims Act (FCA) relators every bit as much as defendants. But as the defense bar knows, relators do not always take that as a given in declined cases, and often demand defendants show that disclosure might be warranted before agreeing to even produce a log. The Jacobs court unequivocally rejected that approach, making clear that the horse must always come before the cart — that is, the relator must always provide a privilege log before any assessment is made of the underlying privilege’s validity.

The dispute in Jacobs revolved around the relator's "blanket refusal to comply" with Federal Rule of Civil Procedure 26(b) by "withholding various categories of documents" without producing a privilege log. Specifically, the defendants had requested in discovery "documents exchanged between Relator and third-party witnesses Relator relied on to draft his complaint and filed declarations … in opposing the motion to dismiss," as well as documents exchanged between the relator and the government, "including Relator's written disclosure statement under 31 U.S.C. § 3730(b)(2)." The relator objected to these discovery requests and stated he would not provide a privilege log for any of the withheld documents, claiming the documents were clearly protected under both the attorney work product doctrine and the attorney-client privilege.

Defendants moved to compel, arguing that a privilege log was necessary to "enable the parties to assess the validity" of the relator's privilege claims. Relator responded that “the missing link is not a privilege log; the missing link is any showing whatsoever by Defendants” that the documents at issue should be disclosed. The court rejected the relator’s argument, holding that “there is no basis to support” withholding documents, “whether they are likely to be protected from disclosure or not,” “without cataloguing the documents withheld.” The court explained that relator “conflate[d] the ultimate validity of his asserted privileges with his obligation under Rule 26(b)(5)(A) to properly catalogue all responsive documents in a privilege log.” The court continued that even if a protection (like work product) could apply, “[w]ithout knowing what specific documents are being withheld,” the defendants could not argue whether there was a “need for the documents or that they cannot be obtained by other means.” Nor could the defendant (or the court) assess whether the relator may have waived privilege. And with respect to FCA disclosure statements and other communications with the government in particular, the court noted that there is substantial authority supporting that some or all of those documents are discoverable. But in any event, it was impossible to fully assess the relator’s privilege claims, or the defendant’s arguments for disclosure, without a privilege log.

As far as we at Qui Notes are concerned, this is clearly the right result. In declined cases, defendants frequently spend countless hours preparing and responding to relator inquiries regarding their own privilege logs. Jacobs serves as a reminder that the privilege log requirement is a two-way street, and defendants should hold relators to their obligations, with the expectation that courts will do so as well.

© Arnold & Porter Kaye Scholer LLP 2024 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.