Relator Cannot Generally Cite to Deposition Documents as Response to Interrogatory; United States District Court for the Western District of Kentucky No. 3:18-CV-61-GNS-CHL, U.S. ex rel. Steven Scott v. Humana Inc.

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The district court granted in part the defendant’s motion to compel further responses from the relator to a set of interrogatories. The court explained that the relator could not merely cite to documents—such as depositions—without pointing the defendant to the pages where it could find information supporting his legal theories. However, the court denied the motion in part, finding that the relator had described the alleged false claims to Medicare with sufficient detail for the defendant to identify the claims in a data set. The court reasoned it would be no more difficult for the defendant to find the specific claims that it would for the relator to cite to them individually. The court also denied the defendant’s motion to file under seal, finding that information the defendant asserted would harm its competitive position in the market was actually information that would harm its reputation, and that this was not a compelling reason to seal records.

Defendant Humana Inc. moved the court to compel relator Steven Scott to supplement his response to Humana’s first set of interrogatories.

In his complaint, Scott alleged that Humana made false bids to the Centers for Medicare and Medicaid Services to obtain lucrative Medicare Part D contracts. In short, Scott alleged that Human provided CMS with one set of metrics and assumptions regarding the value of its plan to CMS, while providing a more accurate set of metrics and assumptions to shareholders. According to Scott, Humana did not expect its plan to be actuarially equivalent, as required to obtain a Part D contract.

During the discovery phase, Humana served Scott with its first set of interrogatories and now asserted that he failed to fully respond to each. Humana identified two defects in Scott’s response: (1) that he had improperly identified business records in lieu of providing narrative responses, pointing Humana to nearly 3,000 documents without specifying where he contends those documents contain responsive information; and (2) that his shifting narrative responses, coupled with his refusal to confirm that the responses are complete, has prevented Humana from confirming the specifics of his liability theories.

Specifically, Humana argued that it still does not know what Scott alleges to be the complete record of alleged false claims, statements, and records; the value of what specific Medicare Part D benefits Scott alleges Humana misrepresented; or what obligations Humana is alleged to have avoided repaying to CMS.

Scott objected to the interrogatories, but supplemented some responses and provided more information. Nonetheless, he argued that each response contained a detailed narrative in addition to identifying specific responsive documents from Humana’s own document production. Scott also asserted that he voluntarily identified responsive documents even where Humana had not requested them, and argued he is not under any further obligation to point out which portions of the documents contain responsive information to each interrogatory. Scott also noted that almost all the documents were created by Humana.

In response, Humana argued that Scott’s responses still do not commit to specific factual bases for his liability theories and his indiscriminate document citations do not identify those bases either. Further, Humana argued that the bases for Scott’s contentions are not self-evident simply because the documents cited to were produced by Humana.

The court addressed each interrogatory in turn. As an example, the first interrogatory asked Scott to identify all false or fraudulent claims for payment that he alleged were knowingly presented or caused to be presented by Humana to the government, and to identify where in the documents this information could be found. Human noted that Scott’s initial response identified every prescription drug transaction under the contract at issue as a false claim. However, his supplemental responses cited to nine data files containing transaction data, but did not identify the alleged false claims within those files.

In response, Scott reiterated that he alleged that every relevant transaction submitted to CMS for reimbursement was a false claim. Scott argued he need not identify Humana’s transactions in data files that Humana created. Humana suggested that Scott attempted to preserve his ability to allege unspecified false claims, but Scott argued that he described with specificity the other false claims that Humana submitted for payment including specified enrollment information, claims data, bid submission data, and other data that CMS specifies.

The court found Scott’s reply satisfactory. The court found it sufficient that Scott alleged that every prescription transaction under the contract was false and that these records were contained in Humana’s data files. Because Humana could locate and identify each of those alleged false claims as easily as the relator could, the court denied the motion in relation to interrogatory 1.

In response to the motion regarding interrogatory 2, the court found the relator provided Humana with exact Bates numbers of allegedly responsive documents, and identified the year and which categories of documents he argued were false. The court found this a clear answer to the call of the question. Humana failed to persuade the Court that the burden of deriving the information from the identified documents is more for them than it would be for Scott or that the response lacks sufficient detail to permit Humana to find the documents as readily.

However, the court granted Humana’s motion to compel regarding other interrogatories. For example, Humana asked Scott to state in detail the facts supporting his allegation that CMS would not have approved payments to Humana had it known that enrollment and prescription transaction records claimed payment for benefits that were worth less than the defined standard or claimed payment for excessive costs. In response, Scott argued that he need not list specific patient enrollment records to answer the interrogatory and that he explained in his narrative responses why the enrollment records are false. However, the court found that Scott had failed to respond to Humana’s request that he substantiate the materiality of th0e allegedly false information to CMS.

The court came to similar conclusions regarding Scott’s responses to other interrogatories, finding that the burden on Scott to provide additional information was less than the burden Humana would face hunting for that information or making assumptions about where that information resided. More specifically, the court held that Scott could not merely cite to a document such as a witness deposition without directing Humana to specific statements.

Humana also argued that Scott’s responses contained new narrative theories based on information that was known to him earlier and should have been presented then. However, the court reasoned that in an contention interrogatory, it was not unreasonable for Scott to assert additional evidence in a supplementary response to support his complaint. Further, contrary to Humana’s assertion, the court did not find that Scott’s answers shifted over time.

Humana also moved the court for leave to file under seal certain confidential information accompanying its motion to compel. However, while Humana argued that portions of its documents contained proprietary information that, if revealed, could harm its competitive position, the court found the information was more likely to harm Humana’s reputation. Though the request was narrowly tailored and affected only a portion of the documents, the court declined to place the information under seal absent a more compelling reason.