A Special Master for the Central District Court of California granted a motion to compel the disclosure of investigative documents that are no longer under seal in the course of an ongoing False Claims Act claim.
UnitedHealth Group, Inc., et al. (“United”) filed a motion to compel the United States (“government”) to produce documents and orders withheld under the law enforcement privilege. These documents included witness interviews, HHS-OIG agent reports and notes from current and former investigations. United argued that the government’s vague claims of harm to investigative and enforcement efforts, and its failure to explain why the protective order wouldn’t mitigate these harms failed to meet the threshold showing that disclosure of the information would result in specific harm to identified important interests. Furthermore, United argued the need for these documents outweighed any claimed harm by the government.
The government argued that the documents were protected by law enforcement privilege because their disclosure would reveal investigative techniques and procedures of HHS-OIG. In addition, the government argued that the disclosure of such interview reports would compromise the relationship HHS-OIG has formed with these individuals who have assisted HHS-OIG in its investigations.
The Special Master agreed with United that the government’s declaration of law enforcement privilege that identifies “generic” forms of harm does not meet the threshold necessary to establish “specific” and “non-speculative” harm. The Special Master found that United’s need for the documents outweighed any harm to the government given any potential chilling effect on the willingness of witnesses to participate in investigations does not take into account the mitigating impact of redacting witnesses names or disclosing documents under Attorneys’ Eyes Only (“AEO”) distinction.
Practical Takeaways
This decision by the Central District Court raises the burden of withholding documents under law enforcement privilege. The government must identify specific and significant harms beyond a general deterrent impact on investigations. In addition, defendants can shift the balance of interests by requesting documents be redacted of identifying information or disclosing documents under an AEO designation. Statements and interview reports that are part of an open or active investigation and are under seal may still be withheld.
Health care systems should consider a motion to compel when the government withholds important documents under law enforcement privilege on the basis that it hinders investigations. If you have any questions or would like additional information about this topic, please contact:
- David Honig at (317) 977-1447 or dhonig@hallrender.com;
- Charles Roozen at (414) 721-0919 or croozen@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot give legal advice outside of an attorney-client relationship.
