THORPE et al v. CROSS et al

RESPONSE TO ORDER OF THE COURT re Order on Motion to Quash

D.D.C.December 16, 2013

4766410.6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN RE THIRD-PARTY SUBPOENA TO PRODUCE DOCUMENTS NO. 1:13-mc-00405-JEB-DAR GREGORY THORPE, et al. Plaintiffs vs. KEITH F. CROSS, et al. Defendants NO. 1:12-cv-11632-RWZ Pending in District of Massachusetts PLAINTIFFS’ OBJECTION, PURSUANT TO FED.R.CIV.P. 72(a), TO MEMORANDUM ORDER GRANTING PHILLIPS & COHEN LLP’S MOTION TO QUASH OR, IN THE ALTERNATIVE, FOR PROTECTIVE ORDER RE: SUBPOENA Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 1 of 88 4766410.6 TABLE OF CONTENTS Page I. INTRODUCTION ...................................................................................................1 Magistrate Robinson’s Memorandum Order ...........................................................3 II. SUMMARY OF FACTS AND PROCEDURAL HISTORY ..................................4 A. The GlaxoSmithKline Lawsuits. ..................................................................4 B. Plaintiffs’ Malpractice Complaint Against C&B.. .......................................5 C&B Negligently Prepares the Original Complaint.. ..................................5 Cross Convinces Plaintiffs to Cut a Deal with P&C’s Whistleblowers to Cover Up His Malpractice.. .........................................................................6 C&B Lies to Plaintiffs About the Protective Order.. ...................................7 Cross Falsely Denies a Relationship with P&C.. .........................................8 C. P&C Refuses to Produce or Search for Discoverable Documents and to Meet and Confer in Good Faith.. .................................................................8 D. Plaintiffs Modify Their Requests, Mooting Many of The Issues Raised in P&C’s Motion to Quash.. ..........................................................................10 E. Plaintiffs and P&C Amicably Resolve Modified Requests 6-9, Mooting, Among Other Things, P&C’s Claim that Plaintiffs’ Subpoena Sought Information to Evaluate a Potential Claim Against P&C.. ........................11 F. Plaintiffs Request P&C’s Communications with C&B Because C&B Failed to Maintain Emails, Including C&B’s Emails With P&C.. ............12 III. ARGUMENT ........................................................................................................15 A. There is No Basis to Support Magistrate Robinson’s Finding That The Requests Currently At Issue Seek Documents That Are of “No Conceivable Relevance” to The Underlying Malpractice Action. .............16 1. Magistrate Robinson erroneously based her Memorandum Order on Modified Requests 6-9, which were no longer at issue. ............................16 2. The Modified Requests at issue seek relevant information, as they request documents relating directly to explicit allegations in Plaintiffs’ malpractice action. .....................................................................................17 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 2 of 88 ii 4766410.6 B. Plaintiffs Are Entitled to P&C’s Communications With C&B (i.e., Modified Request 1) Because Such Communications Are Not Equally Available From C&B. ................................................................................20 C. Plaintiffs Are Entitled to Any Agreements Relating to Any Other Commercial Relationship Between P&C and C&B (i.e., Modified Request 1) Because Such Agreements Are Not Equally Available From C&B. ....23 D. Plaintiffs’ Modified Requests 3 and 11 Seeking Communications With The Government Are Not Work Product. ..................................................24 E. Plaintiffs’ Modified Requests 2 and 4 Seeking Documents Reflecting or Referring to Communications Between P&C and C&B and P&C and the Government Are Relevant, Narrowly Tailored and Not Work Product. ...30 F. Plaintiffs’ Modified Request 5 Seeking Communications Between P&C and the Government Regarding Data Mining and the Protective Order Are Relevant, Narrowly Tailored and Not Work Product. ...............................30 G. Plaintiffs’ Modified Request 12 Seeking P&C’s Letter to the Government Referenced in Its June 26, 2012 Letter to the Government Is Not Protected From Discovery Under Federal Rule of Evidence 408. .............................31 H. Plaintiffs’ Modified Requests at Issue Do Not Cause Any Undue Burden on P&C.......................................................................................................32 III. CONCLUSION ......................................................................................................35 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 3 of 88 4766410.6 Plaintiffs, Gregory Thorpe and Blair Hamrick, object to the Memorandum Order entered on November 19, 2013 by United States Magistrate Judge Deborah A. Robinson (Dkt. 17) granting the Motion to Quash or, in the Alternative, for Protective Order Re: Subpoena (“Motion to Quash”) filed by Phillips and Cohen, LLP. I. INTRODUCTION This matter concerns a third-party document subpoena (the “Subpoena”)1 that Plaintiffs served on the law firm of Phillips & Cohen (“P&C”). Plaintiffs’ Subpoena seeks documents relevant to their legal malpractice lawsuit against the named Defendants, Keith Cross, Joseph Bennett and Cross & Bennett PC (collectively, “C&B”) in a matter before the United States District for the District of Massachusetts. In their legal malpractice claim, Plaintiffs sued C&B in connection with their representation of Plaintiffs, as whistleblowers (“relators”), in a quit tam lawsuit filed against GlaxoSmithKline LLC (“GSK”) under the False Claims Act (the “FCA”). The principal thrust of the malpractice claim is that C&B’s qui tam complaint was so deficient and so vulnerable to attack by subsequent filers that, when second filers did come along, represented by P&C, C&B sought to cover-up their malpractice by persuading Plaintiffs (their clients at the time) to enter into a deal with P&C’s clients, in which Plaintiffs gave away fifty percent (50%) of their relators’ share to P&C’s clients – the entire amount of which was presumptively Plaintiffs, as the first-filers under the FCA. As Plaintiffs would later discover in 2009, C&B did this to avoid a confrontation with P&C that would have revealed to Plaintiffs C&B’s malpractice and the deficiencies of the complaint that C&B prepared. A side benefit of the deal was that the arrival of competent qui tam counsel in the matter, P&C, allowed the incompetent lawyers to sit back and ride P&C’s coattails for the remainder of the case. Plaintiffs fired C&B for cause in October 2009. Two and a half years later, the qui tam case finally settled. Despite the fact that C&B was removed for cause during the final quarter of 1 A copy of Plaintiffs’ Subpoena is attached to P&C’s Motion to Quash (Dkt. 1). Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 4 of 88 2 4766410.6 the case, they filed a counterclaim in the malpractice action seeking a quantum meruit fee of approximately $30 million dollars or forty percent (40%) of Plaintiffs’ relators’ share, that is, the full value of C&B’s defunct contingency-fee agreement with Plaintiffs. P&C worked with C&B for over six (6) years until Plaintiffs replaced C&B with new counsel. Principally, as modified in Plaintiffs’ Opposition to the Motion to Quash (Dkt. 11), the Subpoena seeks communications between P&C and C&B and between P&C and the Government relating to the sufficiency and quality of C&B’s qui tam complaint (the “Original Complaint”); (b) the first-filed status of such complaint; and (c) the sharing agreement between Plaintiffs and P&C’s relators. In its Motion to Quash, P&C objected to producing its communications with C&B claiming that it imposes an undue burden inasmuch as the same documents are available from C&B. P&C also objected to producing its communications with the Government and other documents based on the attorney-client privilege, the work-product doctrine, relevance, and undue burden. P&C claimed that Plaintiffs’ Subpoena was a “naked attempt” to gather information for use in evaluating a claims against P&C. Notwithstanding P&C’s failure to cooperate with Plaintiffs during the meet and confer, in its Opposition to P&C’s Motion to Quash (Dkt. 11), Plaintiffs narrowed significantly their Subpoena in time and scope to twelve (12) discrete requests (the “Modified Requests”), mooting many of the issues raised in P&C’s Motion to Quash. In addition, after Plaintiffs filed their Opposition to P&C’s Motion to Quash, but prior to oral argument, P&C and Plaintiffs amicably resolved P&C’s objections to four (4) of the Modified Requests (i.e., Modified Requests 6-9), including specifically the Modified Requests that formed the basis of P&C’s claim that Plaintiffs’ Subpoena was an attempt to gather information for use in evaluating a claim against P&C.2 2 Currently at issue are Plaintiffs’ Modified Requests 1-5, 10-12. See infra, pages 10-12 (Sections II, E and F). Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 5 of 88 3 4766410.6 Magistrate Robinson’s Memorandum Order In a Memorandum Order dated November 19, 2013 (Dkt. 17), Magistrate Robinson granted P&C’s Motion to Quash, quashing Plaintiffs’ Subpoena in its entirety. Magistrate Robinson held that Plaintiffs’ Subpoena requested documents that are of “no conceivable relevance” to Plaintiffs’ malpractice action, finding that “‘the Subpoena is a naked attempt to gather information for use in evaluating, and perhaps litigating, a claim against [Phillips & Cohen].’” Memorandum Order, p. 5 (internal citation omitted). In addition, relying exclusively on P&C’s Declaration included with its opening Motion to Quash, Magistrate Robinson also held that compliance with the Subpoena would impose a “substantial and undue” burden on P&C, finding specifically that Plaintiffs did “not attempt[] to rebut” P&C’s Declaration. Id. As to communications between P&C and C&B, Magistrate Robinson held that Plaintiffs were first required to file in the Massachusetts District Court a motion to compel C&B to produce all such communications. Magistrate Robinson did not rule on P&C’s objections based on the work product doctrine and the attorney client privilege. Magistrate Robinson’s Memorandum Order is in error for multiple reasons. Magistrate Robinson inexplicably based her ruling exclusively on Modified Requests 6-9, which are no longer at issue, and ignored Modified Requests 1-5, 10-12, the only requests that remain at issue. On their face, Modified Requests 1-5, 10-12 seek documents that are directly relevant to either explicit allegations asserted in Plaintiffs’ malpractice claim or in defense to C&B’s fee claims. These requests do not, in any way, seek documents related to P&C’s representation of its own clients and its evaluation of potential clients or to any potential claim against P&C. As to Magistrate Robinson’s finding of “substantial and undue” burden, Magistrate Robinson’s reliance on P&C’s Declaration, drafted before Plaintiffs modified their requests and withdrew Modified Requests 6-9, is likewise erroneous. Plaintiffs mooted most, if not all, of the purported burden that P&C asserts in its Declaration when Plaintiffs modified the requests in Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 6 of 88 4 4766410.6 their Opposition to P&C’s Motion to Quash and withdrew Modified Requests 6-9 by agreement. As modified, the requests currently at issue would likely require P&C to search only the emails of one (1) custodian using a few keyword searches. Furthermore, as to the communications between P&C and C&B, C&B has admitted to deleting emails that cannot be recovered. The District of Massachusetts cannot compel C&B to produce what it does not possess. Plaintiffs, therefore, are entitled to such communications from P&C. II. SUMMARY OF FACTS AND PROCEDURAL HISTORY A. The GlaxoSmithKline Lawsuits. Plaintiffs hired C&B to represent them in their whistleblower lawsuit against GSK. C&B filed Plaintiffs’ lawsuit against GSK in the United States District Court for the District of Colorado on January 2, 2003. The Original Complaint alleged only federal FCA claims against GSK for off-label promotion of six (6) prescription drugs. The Original Complaint failed to allege any kickback or state FCA claims. Prior to Plaintiffs hiring C&B, Plaintiff Greg Thorpe asked P&C to evaluate his whistleblower lawsuit against GSK in February of 2002. Thorpe completed a confidential case- evaluation questionnaire and submitted it to P&C along with documentary evidence supporting his allegations against GSK. After reviewing Thorpe’s confidential, privileged information, P&C declined to represent Thorpe in a letter dated February 25, 2002 signed by Bonny Harbinger, a junior associate at P&C. A little more than one year later, on April 7, 2003, P&C filed a whistleblower lawsuit against GSK on behalf of two other whistleblowers in the United States District Court for the District of Massachusetts. The P&C complaint, which was promptly amended two months later, repeated a number of the claims that Thorpe had asserted in the confidential, privileged Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 7 of 88 5 4766410.6 information that he submitted to P&C in February 2002. 3 Unlike C&B’s Original Complaint, P&C’s amended complaint was competently drafted. It comprised ninety-six (96) pages and included kickback and state FCA claims. C&B’s Original Complaint was a mere thirteen (13) pages long. Under the FCA, only the first-filed relator is entitled to a relator’s share. 31 U.S.C. § 3730(b)(5). The first-to-file rule only protects the claims which the relator actually asserts. An FCA claim that is inadequately pleaded or insufficiently specific leaves open a door for a second properly pleaded action to claim first-to-file status. See United States ex rel. Duxbury v. Ortho Biotech Prods., L.P., 579 F.3d 13, 32 (1st Cir. 2009). The relators entered into a 50/50 sharing agreement. Following the sharing agreement, the two matters were supervised by the United States Attorney’s Office in Massachusetts, with which P&C had the primary relationship. C&B’s Colorado lawsuit was transferred to, and consolidated with, P&C’s action in Massachusetts in 2010. The Government ultimately recovered over $1 billion dollars in settlement of the whistleblower lawsuits against GSK. The Massachusetts court is currently holding approximately $30 million dollars pursuant to a lien claim filed by C&B. B. Plaintiffs’ Malpractice Complaint Against C&B. C&B Negligently Prepares the Original Complaint In their malpractice Complaint against C&B, Plaintiffs allege that C&B was grossly negligent in preparing the Original Complaint. The Original Complaint failed to state all of the claims that Plaintiffs brought to C&B’s attention, neglecting to include certain legal theories arising out of GSK’s illegal marketing of some drugs and failing to mention GSK’s illegal 3 Plaintiffs’ Modified Requests 6-8 (withdrawn, no longer at issue) sought information relating to P&C’s use of Plaintiff Greg Thorpe’s confidential information that he submitted to P&C regarding P&C’s evaluation of his prospective qui tam claim against GSK. The information sought in these withdrawn Modified Requests was the basis for which P&C claimed that C&B’s subpoena was an attempt to gather information for use in evaluating a claim against P&C. Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 8 of 88 6 4766410.6 marketing of other drugs completely. In particular, C&B failed to include state FCA claims and illegal kickback claims. C&B’s failure to assert all available claims in the Original Complaint, opened the door under the “first-to-file” rule for a subsequent filer, like P&C, to undermine Plaintiffs’ first-filed status through a later filed complaint that included the missing claims. Complaint, ¶¶ 81-123. Cross Convinces Plaintiffs to Cut a Deal with P&C’s Whistleblowers to Cover Up his Malpractice Six months after C&B filed its deficient FCA complaint on behalf of Plaintiffs, and more than two years before C&B filed any amendment seeking to cure the evident deficiencies in its Original Complaint, the U.S. Attorneys’ Office advised C&B that P&C had filed a similar FCA complaint against GSK in Massachusetts three months after Plaintiffs’ complaint was filed in Colorado. Complaint, ¶96. Cross received a copy of P&C’s amended complaint on July 25, 2003. After reading P&C’s amended complaint, Defendant Keith Cross stated to Plaintiffs in an e-mail on July 28, 2003 that “[the P&C complaint is] 96 pages and has significantly more detail than we do, but overall, the ‘cause of action’ is the same.” This was not true. C&B failed to tell Plaintiffs that the P&C amended complaint included state false claims act claims and federal anti-kickback claims that C&B should have included in its Original Complaint. C&B also failed to explain that its negligence had allowed P&C’s relators to become first-filed on those claims. Id. at 105-106. Over the course of the next six (6) months C&B urged Plaintiffs to share the relator fee, which a properly drafted FCA complaint would have made theirs alone as first-in-time filers. C&B ultimately convinced Plaintiffs to cut a generous 50-50 deal with P&C, despite Plaintiffs’ repeated demands that C&B take a more aggressive position. During this time, Plaintiffs expect that P&C pointed out to C&B the deficiencies of its Original Complaint. Whether or not P&C and C&B had such discussions, the fact remains that C&B prevailed on Plaintiffs to give up fifty Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 9 of 88 7 4766410.6 percent (50%) of the relator’s share without self-disclosing to Plaintiffs the deficiencies of the Original Complaint. Id. at 111-112. In negotiating the 50-50 sharing agreement, Cross also refused to aggressively challenge P&C, as the clients demanded, on the question of whether P&C had used any of Thorpe’s confidential information in the representation of its subsequent clients. After reviewing Thorpe’s confidential, privileged information in February of 2002 and declining to take the case, P&C proceeded to represent other clients, who had directly adverse interests, in the same matter. Id. at 114-118. C&B’s handling of the sharing agreement with P&C was tainted by a substantial conflict of interest. C&B allowed its personal interests and its desire to cover up its mistakes to influence its negotiation of the sharing agreement with the P&C relators, to the detriment of its clients. Id. at 96-123. The sharing agreement not only allowed C&B to avoid issues about the deficiencies of the Original Complaint, but also to cede responsibility for the case and ride the coattails of P&C. Id. at 113-123. It was not until 2009 when Plaintiffs sought to involve another qui tam lawyer as co- counsel with C&B that Plaintiffs discovered, among other things, that C&B mishandled the Original Complaint and that C&B put its own interests ahead of their clients’ interests when it negotiated the sharing agreement with P&C. Plaintiffs discharged C&B for cause on October 21, 2009. Id. at 166-169. C&B Lies to Plaintiffs About the Protective Order In the GSK Lawsuits, the government agreed to let the relators and their counsel mine the documents in the government’s investigatory file for data that could be used in the case against GSK, subject to a protective order. C&B informed Plaintiffs, over their strong objections, that they could not participate in mining the government’s documents because the data-mining was Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 10 of 88 8 4766410.6 limited to attorneys. C&B also told Plaintiffs that they could not share any of the confidential information developed through data mining with them. Id. at 143-145. C&B’s statements were false. After Plaintiffs discharged C&B, they discovered that the protective order permitted relators the same access as their counsel and that the government had no objection to their having access to confidential information. Id. at 147. Cross Falsely Denies a Relationship with P&C In 2004, Cross disclosed to Thorpe and Hamrick that he had agreed to serve as local counsel for P&C in an unrelated matter. In 2008, Cross stated emphatically that he had never received anything from P&C. In 2009, he again agreed to serve as local counsel for P&C. This time, however, he did not disclose his arrangement with P&C to Thorpe and Hamrick. Id. at 170-172. C. P&C Refuses to Produce or Search for Discoverable Documents and to Meet and Confer in Good Faith. On March 8, 2013, Plaintiffs served their third-party subpoena on P&C requesting documents related to Plaintiffs’ legal malpractice claims and C&B’s claim for fees. Plaintiffs allege that P&C took the lead in litigating the case after the sharing agreement was entered into and, as a result, its communications with C&B and the government are not only related to Plaintiffs’ legal malpractice claim, but also to Plaintiffs’ defense of C&B’s claim to a full forty percent (40%) contingent fee. In fact, all of the documents requested by Plaintiffs’ subpoena relate to either explicit, core allegations of malpractice by C&B or defenses to C&B’s excessive fee claim. On April 5, 2013, P&C produced ten (10) pages in response to Plaintiffs’ subpoena and objected to producing anything else. P&C claims Plaintiffs’ subpoena is overbroad, unduly burdensome, and seeks privileged information. The ten (10) pages (attached as Exhibit “B” to Plaintiffs’ Opposition to Motion to Quash (Dkt. 11) produced by P&C are a redacted copy of the Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 11 of 88 9 4766410.6 case-evaluation questionnaire completed by Thorpe in February 2002 and the Bonny Harbinger letter advising that P&C was declining to handle Thorpe’s qui tam lawsuit against GSK. At a mandatory meet and confer on April 17, 2013, P&C refused to cooperate with Plaintiffs in a good faith effort to resolve the discovery disputes. P&C refused to consider producing any additional documents regardless of the degree or manner in which Plaintiffs might seek to narrow the subpoena. P&C refused even to search for responsive documents, claiming that any search, regardless how limited, would be unduly burdensome. P&C also claimed that none of the documents requested in the subpoena were relevant to Plaintiffs’ litigation, or reasonably calculated to lead to the discovery of admissible evidence, but refused to listen to any explanation as to how the requested documents were relevant. P&C accused Plaintiffs of using their subpoena as a pretext to discover information upon which to sue P&C. In its Motion to Quash, P&C even argues that Plaintiffs’ counsel said as much. This is untrue. At no time did counsel for Plaintiffs ever state or imply that Plaintiffs’ subpoena was being used as a tool to dig up a claim against P&C. See Declaration of H. David Seidman, Esquire (“Seidman Declaration”) at ¶¶ 1-7 (attached as Exhibit “C” to Plaintiffs’ Opposition to Motion Quash (Dkt. 11). By letter dated April 22, 2013 (attached as Exhibit “D” to Plaintiffs’ Opposition to Motion Quash (Dkt. 11)), Plaintiffs followed up with P&C in a further effort to resolve P&C’s objections. Plaintiffs explained the relevance of the requested documents and expressed a willingness to narrow the requests to reduce the alleged burden on P&C. Plaintiffs also proposed providing a list of key-words that P&C could use to search its computer system for responsive documents and/or limiting searches for requested documents to particular custodians. P&C ignored Plaintiffs’ letter. In the face of P&C’s stonewalling of discovery, Plaintiffs’ counsel wrote to P&C outside of the discovery rules and requested information regarding the handling of Thorpe’s confidential Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 12 of 88 10 4766410.6 privileged information. See Rule 1.18 Letter (attached as Exhibit “E” to Plaintiffs’ Opposition to P&C’s Motion to Quash (Dkt. 11)). P&C refused to provide the requested information. D. Plaintiffs Modify Their Requests, Mooting Many of The Issues Raised in P&C’s Motion to Quash. Notwithstanding P&C’s failure to cooperate with Plaintiffs, in an effort to address some of the issues raised by P&C in its Motion to Quash, in its Opposition to P&C’s Motion to Quash (Dkt. 11), Plaintiffs proposed modifying their requests (the “Modified Requests”) as follows: 1) All communications between P&C and C&B from July 1, 2003 to the present regarding the GSK Lawsuits; 2) All documents reflecting or referring to any communications between P&C and C&B from July 1, 2003 to February 29, 2004 related to (a) the sufficiency and quality of Plaintiffs’ Original Complaint; (b) the first-filed status of such complaint; and (c) the sharing agreement; 3) All communications between P&C and the Government from July 1, 2003 to February 29, 2004 related to (a) the sufficiency and quality of Plaintiffs’ Original Complaint; (b) the first-filed status of such complaint; and (c) the sharing agreement; 4) All documents reflecting or referring to any communications between P&C and the Government from July 1, 2003 to February 29, 2004 related to (a) the sufficiency and quality of Plaintiffs’ Original Complaint; (b) the first-filed status of such complaint; and (c) the sharing agreement; 5) All documents, including any communications between P&C and the Government, from January 1, 2007 to November 1, 2009 referring to the data-mining project and/or the protective order entered in the GSK Lawsuits; 6) All documents from April 1, 2002 to February 29, 2004 reflecting, relating, or referring to Gregory Thorpe’s prospective qui tam claim against GSK (withdrawn, no longer at issue); 7) All documents from April 1, 2002 to February 29, 2004 reflecting any review or dissemination of the information that Gregory Thorpe submitted to P&C regarding P&C’s evaluation of Gregory Thorpe’s prospective qui tam claim against GSK, including documents that reflect the names of individuals who reviewed or had access to such information (withdrawn, no longer at issue); Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 13 of 88 11 4766410.6 8) All written policies from April 1, 2002 to February 29, 2004 regarding P&C’s evaluation of prospective matters and the handling of confidential materials submitted by a prospective client in connection with P&C’s evaluation of a prospective matter (withdrawn, no longer at issue); 9) Documents submitted to GSK in connection with P&C’s claim for statutory attorneys’ fees in the Qui Tam Litigation (withdrawn, no longer at issue); 10) All agreements or proposed agreements relating to any business or commercial relationship or potential relationship between P&C and C&B other than the GSK Lawsuits from 2001 through the present; 11) Documents, including any communications with the Government, from September 2009 to the present referring to Plaintiffs’ malpractice claim and C&B’s fee dispute; and 12) The “more complete letter” referenced in paragraph one of P&C’s June 26, 2012 letter to the Government (attached as Exhibit “G” to Plaintiffs’ Opposition to P&C’s Motion to Quash), in which P&C challenges the sufficiency of Plaintiffs’ complaint, and all communications with the Government related to the June 26, 2012 letter and the “more complete letter.”4 E. Plaintiffs and P&C Amicably Resolve Modified Requests 6-9, Mooting, Among Other Things, P&C’s Claim that Plaintiffs’ Subpoena Sought Information to Evaluate a Potential Claim Against P&C. After Plaintiffs filed their Opposition to P&C’s Motion to Quash, but prior to oral argument before Magistrate Robinson, Plaintiffs and P&C entered into an agreement in which P&C agreed to provide certain information in exchange for Plaintiffs withdrawing Modified Requests 6-9. See P&C’s Reply, pp. 2-3 (Dkt. 14); Oral Argument Transcript, p. 4, line 5. , p. 5, line 5. These withdrawn requests include the requests (i.e., Modified Requests 6-8) that sought information relating to P&C’s use of Plaintiff Greg Thorpe’s confidential information that he submitted to P&C regarding P&C’s evaluation of his prospective qui tam claim against GSK. 4 As counsel for Plaintiffs explained at oral argument, Plaintiffs inadvertently omitted this Modified Request in its Opposition. See Oral Argument Transcript, p. 84, line 21 to p. 86, line 2. Relevant portions of the transcript for Oral Argument on P&C’s Motion to Quash is attached as Exhibit 6. Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 14 of 88 12 4766410.6 The information sought in these withdrawn Modified Requests is the same information sought in Plaintiffs’ Rule 1.18 letter to P&C. See Rule 1.18 Letter (attached as Exhibit “E” to Plaintiffs’ Opposition to P&C’s Motion to Quash (Dkt. 11)). The information sought in Modified Requests 6-8 and Plaintiffs’ Rule 1.18 letter was the basis for which P&C claimed that Plaintiffs’ Subpoena was an attempt to gather information for use in evaluating a claim against P&C. See P&C Motion to Quash, pp. 2, 7-8 (Dkt. 1); Oral Argument Transcript, p. 62, line 8 to p. 63, line 4. F. Plaintiffs Request P&C’s Communications with C&B Because C&B Failed to Maintain Emails, Including C&B’s Emails With P&C. C&B has admitted that it deleted emails from critical periods in the case that cannot be recovered. C&B cannot certify that it maintained and produced all of its communications with P&C. Specifically, counsel for C&B admitted that C&B no longer possess emails in their original Outlook system from July 2002 through March 2008, except for Defendant Keith Cross’s sent emails from 2005 through 2006. Any emails that C&B did not manually save from its Outlook system to its document management system, Amicus, during these time periods, no longer exist and cannot be recovered. See Opposition to Motion to Quash, Exhibit C, ¶¶ 7-28 (Declaration of H. David Seidman)(Dkt. 11). Discovery has revealed that C&B neglected to save to its Amicus system a substantial number of emails between C&B and P&C that C&B no longer possesses due to C&B failing to retain the Outlook files. This is evidenced by the fact that C&B produced a dearth of emails between C&B and P&C during the specific time periods of the deleted Outlook emails, especially considering P&C asserts that it was in “frequent contact” with C&B from 2004 to 2009. The following is a breakdown by year of the number of emails between P&C and C&B that were produced in discovery by C&B in the underlying action. 5 5 Plaintiffs’ counsel provided this information orally to the Court at argument. See Oral Argument Transcript, p. 45, line 9, p. 46, line 13. Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 15 of 88 13 4766410.6 C&B Production of Emails Between C&B and P&C Year Number of Emails Between P&C and C&B Number of Emails Sent by P&C to C&B Number of Emails Sent By C&B to P&C 2003 9 5 4 2004 63 12 51 2005 64 12 52 2006 146 58 88 2007 132 63 69 2008 419 192 227 2009 911 489 422 Total Emails = 1,744 Time Periods of C&B Deleted Outlook Email Files July 2002 through 2004: All Outlook Files Deleted 2005 through 2006: All Outlook Files Deleted, Except C&B Sent Emails 2007 through March 2008: All Outlook Files Deleted Since oral argument on P&C’s Motion to Quash, during the course of discovery in the underlying malpractice action, Plaintiffs have since discovered additional evidence further demonstrating that C&B’s document production is not complete.6 At the time the Magistrate Robinson took this matter under advisement in August, 2013, Plaintiffs had not completed processing its document production, and therefore, was not able to fully compare its document production with C&B’s document production to further demonstrate that the production of documents by the C&B was not complete. At the time of the argument on P&C’s Motion to Quash, Plaintiff was able to identify only a few communications with C&B exchanged during the qui tam litigation, but that were not included in C&B’s document production in the underlying malpractice action. 6 Pursuant to Rule 72(b)(3), in deciding objections to a magistrate judge’s decision ,the district judge may receive further evidence not presented to the magistrate judge. Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 16 of 88 14 4766410.6 Plaintiffs have now performed a more comprehensive comparison of C&B’s document production with Plaintiffs’ document production and have been able to identify at least two hundred forty-eight (248) emails between Plaintiffs and C&B that were exchanged during the qui tam litigation, but that were not included in C&B’s document production in the underlying malpractice action. This is based on a random sampling of approximately 600 emails exchanged during the qui tam litigation between Plaintiffs and C&B that were included in Plaintiffs’ document production in the malpractice action. Of this random sampling of 600 emails, approximately forty-one percent (41%) were missing from C&B’s document production. Attached as Exhibit 1 is a spreadsheet identifying the two hundred forty-eight (248) emails missing from C&B’s production. See Declaration from H. David Seidman (attached as Exhibit 2). Furthermore, since Magistrate Robinson took P&C’s Motion to Quash under advisement, counsel for Plaintiffs have also deposed the IT consultant for the C&B with regard to the deleted Outlook email files. The IT consultant confirmed that certain Outlook emails were deleted as Plaintiffs previously reported to the Court. Specifically, the IT consultant explained that the file in which all of Defendant Keith Cross’s emails were automatically stored was unintentionally removed from the firm’s server by the auto-archiving feature of Outlook when Mr. Cross replaced his personal computer and another IT consultant turned on the auto-archiving feature for the new computer instead of disabling it. He confirmed that C&B employed a software package known as Amicus that allowed them to save emails manually to a database on a case-specific basis. He also confirmed that emails included in the deleted Outlook emails that were not manually saved to the Amicus database were irretrievably lost from C&B’s system. See Deposition Transcript of Joseph Jay Baldwin, October 25, 2013, pp. 58-69 (attached as Exhibit 3). Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 17 of 88 15 4766410.6 III. ARGUMENT A trial court may, on a motion by the party seeking relief, quash or modify the subpoena if it requires disclosure of privileged or other protected matter, if no exception or waiver applies, or if it subjects a person to undue burden. Fed. R. Civ. P. 45(c)(3). What constitutes unreasonableness or oppression is a matter to be decided in the light of all the circumstances of the case. Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403 (D.C. Cir. 1984). “[T]he burden of proving that a subpoena … is oppressive is on the party moving for relief on this ground. … The burden is particularly heavy to support a motion to quash as contrasted to some more limited protection.” Westinghouse Electric Corp. v. City of Burlington, 351 F.2d 762, 766 (D.C. Cir. 1965). To determine whether a burden is “undue,” courts consider the factors set forth in Rule 26. Watts v. SEC, 482 F.3d 501, 509 (D.C. Cir. 2007). Rule 26(b)(2)(C)(iii) limits discovery if “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” The district court must balance the relevance of the discovery sought, the requesting party’s need, and the potential hardship to the party subject to the subpoena. Flanagan v. Wyndham International Inc., 231 F.R.D. 98, 102-03 (D.D.C. 2005) (citations omitted). In this case, Magistrate Robinson’s Memorandum Order is in error. P&C has fallen far short of meeting its heavy burden to quash Plaintiffs’ subpoena. Pursuant to Federal Rule of Civil Procedure 72(b)(3), “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 18 of 88 16 4766410.6 A. There is No Basis to Support Magistrate Robinson’s Finding That The Requests Currently At Issue Seek Documents That Are of “No Conceivable Relevance” to The Underlying Malpractice Action. In her Memorandum Order, Magistrate Robinson quashed Plaintiffs’ subpoena, holding inexplicably that the subpoena seeks documents that are of “no conceivable relevance in the context of the action now pending in the District of Massachusetts … .” Memorandum Order, p. 5 (Dkt. 17). In reaching this decision, Magistrate Robinson found that “the documents which are the subject of the subpoena concern Petitioners [P&C’s] representation of its own clients and its evaluation of potential clients. Accordingly, the undersigned finds, as Petitioner suggests, that ‘the Subpoena is a naked attempt to gather information for use in evaluating, and perhaps litigating, a claim against [Phillips & Cohen].’ No interpretation of Rule 26 can be read to countenance such an effort.” Id. (internal citation omitted). Magistrate Robinson’s holding is in error for multiple reasons. Magistrate Robinson erroneously based her ruling exclusively on Modified Requests 6-9, which are no longer at issue, and ignored Modified Requests 1-5, 10-12, the only requests that remain at issue. On their face, Modified Requests 1-5, 10-12 seek documents that are directly relevant to either explicit allegations asserted in Plaintiffs’ malpractice claim or in defense to C&B’s fee claims. These requests do not, in any way, seek documents related to P&C’s representation of its own clients and its evaluation of potential clients or to any potential claim against P&C. 1. Magistrate Robinson erroneously based her Memorandum Order on Modified Requests 6-9, which were no longer at issue. It was in error for Magistrate Robinson to hold that Plaintiffs’ subpoena sought information relating to P&C’s representation of its own clients and its evaluation of potential clients or to any potential claim against P&C, as any request for such information was no longer at issue. Prior to oral argument before Magistrate Robinson, Plaintiffs and P&C entered into an agreement in which P&C agreed to provide certain information in exchange for Plaintiffs Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 19 of 88 17 4766410.6 withdrawing Modified Requests 6-9. In P&C’s Reply Brief and at oral argument, counsel for P&C advised Magistrate Robinson of this agreement. P&C’s Reply, pp. 2-3 (Dkt. 14); Oral Argument Transcript, p. 4, line 5 to p. 5, line 5. The information sought in Modified Requests 6- 9 and Plaintiffs’ Rule 1.18 letter was the basis for which P&C claimed that C&B’s Subpoena sought documents related to the representation of its client and was an attempt to gather information for use in evaluating a claim against P&C. Motion to Quash, pp. 2 and 7-8. The withdraw of Modified Requests 6-9, therefore, mooted P&C’s argument that Plaintiffs’ Subpoena sought such information. The remaining requests, Modified Requests 1-5, 10-12, do not, in any way, seek documents related to P&C’s representation of its own clients and its evaluation of potential clients or to any potential claim against P&C. Accordingly, it was in error for Magistrate Robinson to base her Memorandum Order on Modified Requests 6-9, as such requests were no longer at issue. 2. The Modified Requests at issue seek relevant information, as they request documents relating directly to explicit allegations in Plaintiffs’ malpractice action. Magistrate Robinson’s holding that Plaintiffs’ subpoena “seeks documents which are of no conceivable relevance” is without any factual basis. Magistrate Robinson simply ignores Modified Requests 1-5, 10-12, the only requests that remain at issue. Federal Rule of Civil Procedure 26(b)(1) provides that a party may gather discovery regarding “any matter” from any source, including non-parties, possessing relevant information or documents. Relevancy is “broadly construed and encompasses any material that bears on, or that reasonably leads to other matters that could bear on, any issue that is or may be in the case.” In re Veiga, 746 F. Supp. 2d 8, 19 (D.D.C. 2010)(quoting Alexander v. Fed. Bureau of Investigation, 194 F.R.D. 316, 325 (D.D.C. 2000)). A request for discovery should be allowed unless it is clear that the information sought can have no possible bearing on the claim. Id. Where, as here, a subpoena is served in a district with respect to an action pending in another district, “[the] court . . . should hence be Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 20 of 88 18 4766410.6 cautious in determining relevance of evidence, and in case of doubt should err on the side of permissive discovery[,]” since the court with jurisdiction of the discovery dispute “generally has limited exposure to and understanding of the primary action.” Flanagan v. Wyndham International Inc., 231 F.R.D. 98, 103 (D.D.C. 2005) (citations omitted). Additionally, on a motion to quash a subpoena, the merits of a case are not at issue. See Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1, 8 (D.D.C. 2008) (“factual and technical arguments . . . are unrelated to any appropriate inquiry associated with a motion to quash”). In this case, Modified Requests 1-5, 10-12 seek documents directly relevant to Plaintiffs’ malpractice action. See supra, pages 10-12 (Sections II, E and F). These requests refer directly to explicit allegations that C&B failed to appropriately represent Plaintiffs in numerous respects, including, but not limited to, as follows: 1) Failing to file an adequate Original Complaint, thus jeopardizing Plaintiffs’ position as first-filed relators (Modified Requests 1-4, 11-12); 2) Failing to negotiate an appropriate sharing agreement between Plaintiffs and P&C’s relators (Modified Requests 1-4); 3) Failing to adequately represent Plaintiffs’ interests subsequent to the execution of the sharing agreement by, in essence, ceding prosecution of the case against GSK to P&C and relying on P&C to perform most of the work (Modified Requests 1, 5, 11-12); and 4) Misrepresenting the protective order entered in the GSK Lawsuits regarding data mining (Modified Requests 1, 5). 5) Failing to disclose to Plaintiffs C&B’s relationship with P&C (Modified Requests 10, 11). Although Magistrate Robinson simply ignores Modified Requests 1-5, 10-12 in her Memorandum Decision, in P&C’s Motion to Quash, P&C claims that Plaintiffs’ requests concerning first-to-file matters, the quality of C&B’s services, and the fee dispute “seek purely irrelevant information.” P&C Memorandum, p. 25-26, 29-30 (Dkt. 1). P&C argues that “P&C’s and the government’s opinions, analysis, or casual comments concerning those matters … are Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 21 of 88 19 4766410.6 not admissible to prove or disprove the malpractice and fee claims at issue in this litigation and cannot lead to the discovery of any admissible evidence.” Id. By P&C’s definition of relevance, no third-party discovery could ever be relevant in a legal malpractice claim. Including, for example, a letter from P&C to the government stating that “Cross admitted to me that he committed malpractice by failing to include Paxil in the Original Complaint.” This argument is frivolous. First-to-file matters, the quality of C&B’s services, and the fee dispute are core issues in Plaintiffs’ malpractice claim and C&B’s counterclaim. Documents relating to such issues are plainly relevant. Furthermore, Plaintiffs’ Modified Requests relating to these core issues are narrowly tailored. The time period for Plaintiffs’ Modified Request 3 seeking communications regarding first-to-file’ matters and the quality of C&B’s services is limited to the date that C&B filed the Original Complaint and the date of the sharing agreement (July 1, 2003 to February 29, 2004). The time period for its Modified Request 11 seeking documents referring to Plaintiffs’ malpractice claim and C&B’s fee dispute is limited to the date just before Plaintiffs terminated C&B to the present (September 2009 to the present). P&C also objects to producing its communication with C&B as not being relevant because the purported majority of such communications relate to mundane correspondence regarding the ordinary, day-to-day administration of litigation. P&C Memorandum, p. 24 (Dkt. 1). Such “mundane” correspondence regarding the administration of the GSK Lawsuits is directly related to C&B’s quantum meruit counterclaim. It will show that Cross ceded responsibility of the case to P&C and that P&C performed the majority of work advancing the GSK Lawsuits. Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 22 of 88 20 4766410.6 B. Plaintiffs Are Entitled to P&C’s Communications With C&B (i.e., Modified Request 1) Because Such Communications Are Not Equally Available From C&B. P&C objects to producing communications with C&B claiming that it imposes an undue burden inasmuch as the same documents are available from C&B. This objection should be overruled. In their Opposition filed with the Court (Dkt 11), Plaintiffs demonstrated that the production of documents by C&B was not complete. C&B has admitted that emails from critical periods in the case have been lost. C&B cannot certify that it has produced all communications with P&C. Seidman Declaration, ¶¶ 7-28 (attached as Exhibit “C” to Plaintiffs’ Opposition (Dkt 11)). In each of the cases cited by P&C, the courts held that the documents requested from the non-party were available from a party to the litigation. Educ. Fin. Council v. Oberg, 2010 U.S. Dist. LEXIS 102221, 8-9 (D.D.C. Mar. 8, 2010)(subpoena “imposes an undue burden on EFC because it appears many, if not all, of EFC's communications with the defendants are available from the defendants”); Burlodge Ltd. v. Standex Int'l Corp. (In re Motion to Compel Compliance), 257 F.R.D. 12, 19 (D.D.C. 2009)(“subpoena is “unduly burdensome because of the absence of any showing that the information sought is not available from other sources”); Nidec Corp. v. Victor Co., 249 F.R.D. 575, 577 (N.D. Cal. 2007)(“There is simply no reason to burden nonparties when the documents sought are in possession of the party defendant.”). Here, all communications between P&C and C&B are not available from C&B. In her Memorandum Order, Magistrate Robinson held that “it is a judge of the District of Massachusetts, rather than a judge of this district, who must determine the sufficiency of a party’s responses to discovery requests propounded in the civil action pending in the District of Massachusetts.” Memorandum Order, p. 5. Magistrate Robinson held that Plaintiffs are first required to file a motion to compel against C&B in the District of Massachusetts. This is not the case. C&B has admitted to deleting emails that cannot be recovered. The District of Massachusetts cannot compel C&B to produce what it does not possess. To the extent that Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 23 of 88 21 4766410.6 Magistrate Robinson suggests that Plaintiffs should file a spoliation motion, such a motion would be premature before first determining whether the deleted documents are available from another source, i.e., from P&C. Plaintiffs have amply demonstrated C&B’s document production is not complete. Discovery has revealed that C&B neglected to maintain a substantial number of emails between C&B and P&C that C&B no longer possesses due to C&B failing to retain the Outlook files. See supra pages 12-15, Section F. Assuming for argument sake that it turns out that C&B did in fact maintain and produce all of its emails with P&C, at worst P&C would have been required to search the emails of one (1) custodian, i.e., Erika Kelton, for one (1) email address, i.e., Keith Cross’ email address, and produce a total of 1,174 emails, none of which are privileged requiring a privilege review. See supra pages 12-15, Section F. This is hardly an undue burden for a law firm with P&C’s resources and expertise in reviewing document productions including millions of documents. Furthermore none of the cases requiring discovery from parties before non-parties involve situations where such parties’ honesty in sharing information is at the heart of the lawsuit and very much in question. In addition to deleting emails, Plaintiffs have also demonstrated that C&B failed to produce documents that it in fact possessed. For example, P&C previously claimed that it had not received a copy of the protective order entered in the GSK Lawsuits. When Cross first turned over a copy of his file to replacement counsel, he represented to replacement counsel and to Plaintiffs’ counsel that such copy was a complete copy of his file. That turned out to be false. In Cross’s recent response to the Colorado Disciplinary Board’s investigation, Cross attached to that response a copy of the March 28, 2008 protective order issued by Judge Gertner, as well as an October 6, 2008 letter from U.S. Attorney, Sara Bloom, enclosing the protective order. Neither document was included in Cross’s previously produced file, even though they naturally belong in the file. Seidman Declaration, ¶27 (attached as Exhibit Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 24 of 88 22 4766410.6 “C” to Plaintiffs’ Opposition (Dkt 11)). This is the same protective order that Cross falsely told his clients allowed only attorneys to data-mine the government’s database. Complaint, ¶¶ 143- 149. (attached as Exhibit “A” to Plaintiffs’ Opposition (Dkt 11)). “‘[I]n appropriate circumstances, production from a third party will be compelled in the face of an argument that the ‘same’ documents could be obtained from a party, because there is reason to believe that the files of the third party may contain different versions of documents, additional material, or perhaps, significant omissions.’” Viacom Int'l, Inc. v. YouTube, Inc., 2008 U.S. Dist. LEXIS 79777 (N.D. Cal. Aug. 18, 2008)(quoting Visto Corp. v. Smartner Info. Sys., Ltd.,2007 U.S. Dist. LEXIS 8481 (N.D. Cal. Jan. 29, 2007)). In Viacom, the California district court compelled non-parties to produce communications between the non-parties and the defendant. The court held, “there is no general rule that plaintiffs cannot seek nonparty discovery of documents likely to be in defendant’s possession. … Plaintiffs have provided the Court with sufficient reason to believe that respondents’ files may contain additional material. Defendant YouTube’s poor initial record keeping raises questions about the completeness of its files, and neither YouTube nor respondents have provided the Court with reason to believe that YouTube retained all communications and documents shared with respondents.” Id at 10-11 (N.D. Cal. Aug. 18, 2008). See also Coffeyville Res. Ref. & Mktg. LLC v. Liberty Surplus Ins. Corp., No. 08-00017, 2008 U.S. Dist. LEXIS 91224, at *5 (E.D. Ark. Nov. 6, 2008)(“there is no absolute rule prohibiting a party from seeking to obtain the same documents from a non-party as can be obtained from a party, nor is there an absolute rule providing that the party must first seek those documents from an opposing party before seeking them from a non-party.”); Software Rights Archive, LLC v. Google, Inc., 2009 U.S. Dist. LEXIS 43835 (D. Del. May 21, 2009)(“where a party requests documents from a non-party that are likely to be in the possession of an opposing party, production of documents is appropriate where those documents constitute a "non-well-defined set" "whose completeness is not readily verifiable … [I]n these Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 25 of 88 23 4766410.6 circumstances, allowing for discovery from both the party and non-party, completeness of discovery is more likely to be achieved.”) Like the defendant in Viacom, C&B’s poor record keeping, incomplete production, and deletion of files raises questions about the completeness of its files, and P&C has not provided the Court with reason to believe that C&B retained all communications and documents shared with P&C. C. Plaintiffs Are Entitled to Any Agreements Relating to Any Other Commercial Relationship Between P&C and C&B (i.e., Modified Request 1) Because Such Agreements Are Not Equally Available From C&B. In their Complaint, Plaintiffs allege that Cross failed to disclose at least one agreement between P&C and C&B for C&B to serve as local counsel for P&C in an unrelated matter. Complaint, ¶¶ 170-172. In Modified Request 10, Plaintiffs request “[a]ll agreements or proposed agreements relating to any business or commercial relationship or potential relationship between P&C and C&B other than the GSK Lawsuits from 2001 through the present.” P&C objects to producing such agreements with C&B claiming that it imposes an undue burden inasmuch as the same documents are available from C&B. P&C also argues that C&B is co-counsel to P&C on one or more cases that are under seal pursuant to statute and court order, and that P&C cannot produce the requested information without violating the seal in those cases. Motion to Quash, pp. 24-25. P&C’s objections should be overruled. First, all local counsel agreements are not equally available from C&B. As set forth in a letter dated August 2, 2013 from counsel for C&B to counsel for Plaintiffs (attached as Exhibit 4), counsel for C&B stated that C&B entered into three (3) local counsel agreements, but that C&B possess only copies of the agreements for two (2) of the three (3) matters. As to P&C’s objection based on confidentiality, as counsel for Plaintiffs made clear at oral argument, P&C may redact any confidential information in its local counsel agreements with C&B. Plaintiffs request only the number of local counsel agreements P&C Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 26 of 88 24 4766410.6 entered into with C&B, the year each agreement was entered into, and the general payment terms. See Oral Argument Transcript, p. 76, line 9 to p. 78, line 15. D. Plaintiffs’ Modified Requests 3 and 11 Seeking Communications With The Government Are Not Work Product. Although not addressed in Magistrate Robinson’s Memorandum Order, P&C also objects to producing documents relating to first-to-file matters, the quality of C&B’s services, and the fee dispute based on the work-product privilege pursuant to Rule 26(b)(3), Hickman v. Taylor, 329 U.S. 495 (1947), Rule 26(c) and Rule 45. P&C argues that all such documents were made in anticipation of litigation and that, based on the common interest doctrine, P&C did not waive the work product privilege by disclosure of any such documents to the government. P&C Motion to Quash, pp. 25-28. P&C is wrong on both accounts. The work product doctrine does not protect materials prepared by P&C in the present litigation because P&C’s clients are not parties to this litigation and protecting P&C’s communications with the government and documents referring to such communications is not consistent with Hickman. Even if the work product doctrine did apply, the common interest doctrine does not apply to the disclosure of the requested communications because such communications were not designed to facilitate a common legal interest shared by P&C’s clients and the government. Rule 26(b)(3) protects attorney “work product” from discovery in certain specified circumstances. The Rule provides in pertinent part: “[A] party may obtain discovery of documents and tangible things … prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Fed.R.Civ.P. 26(b)(3). To qualify for protection against discovery under this rule, documents must have two characteristics: (1) they must be “prepared in Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 27 of 88 25 4766410.6 anticipation of litigation or for trial,” and (2) they must be prepared “by or for another party or by or for that other party’s representative.” Id. The Rule, on its face, limits its protection to one who is a party (or a party’s representative) to the litigation in which discovery is sought. The federal courts have repeatedly held, when confronted with the issue, that a non-party witness may not invoke work-product protection under this rule to preclude production of materials prepared by or for that witness, even if created in contemplation of the witness’s own pending or anticipated litigation. Thus, “documents prepared by one who is not a party to the present suit are wholly unprotected by Rule 26(b)(3) … .” 8 C. Wright, A. Miller & R. Marcus, Federal Practice & Procedure: Civil § 2024 at 354-56 (2d ed. 1994). Accord, 6 Moore’s Federal Practice § 26.70[4] at 26-218.3. This conclusion has been adhered to by the Supreme Court in dictum, by at least four circuit courts and by numerous district courts. Federal Trade Commission v. Grolier Inc., 462 U.S. 19, 25 (1983) (citing 8 Wright & Miller, Federal Practice and Procedure § 2024 at 201 (1970)); Tambourine Comercio Internacional SA v. Solowsky, 312 Fed. Appx. 263, 284 (11th Cir. 2009); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 924 (8th Cir. Ark. 1997); Arkwright Mut. Ins. Co. v. National Union Fire Ins. Co., 1994 U.S. App. LEXIS 3828 (6th Cir. 1994)(unpublished); In re California Public Utilities Comm’n, 892 F.2d 778, 781 (9th Cir. 1989) In re California Public Utilities Comm’n, 892 F.2d 778, 781 (9th Cir. 1989); Westwood Prods. v. Great Am. E&S Ins. Co., 2011 U.S. Dist. LEXIS 84171 (D.N.J. Aug. 1, 2011); LG Elecs., Inc. v. Motorola, Inc., 2010 U.S. Dist. LEXIS 116652 (N.D. Ill. Nov. 2, 2010); Jean v. City of New York, 2010 U.S. Dist. LEXIS 2282 (E.D.N.Y. Jan. 12, 2010); Bryant v. Ferrellgas, Inc., 2008 U.S. Dist. LEXIS 47148 ( E.D. Mich. June 17, 2008); Abdell v. City of New York, 2006 U.S. Dist. LEXIS 66114 (S.D.N.Y. Sept. 14, 2006); Ramsey v. NYP Holdings, Inc., 2002 U.S. Dist. LEXIS 11728, 18-20 (S.D.N.Y. June 26, 2002); Burton v. R.J. Reynolds Tob. Co., 200 F.R.D. 661, 676 (D. Kans. 2001); Go Medical Industs. Pty., Ltd. v. C.R. Bard, Inc., 1998 U.S. Dist. Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 28 of 88 26 4766410.6 LEXIS 22919, 1998 WL 1632525, *6 (D. Conn. Aug. 14, 1998); In re Polypropylene Carpet Antitrust Litig., 181 F.R.D. 680, 691 (N.D. Ga. 1998); Hunter v. Heffernan, 1996 U.S. Dist. LEXIS 9244, 1996 WL 363842, *4 (E.D. Pa. June 28, 1996); Schultz v. Talley, 152 F.R.D. 181, 184 (W.D. Mo. 1993); Doubleday v. Ruh, 149 F.R.D. 601, 606 (E.D. Cal. 1993); Hawkins v. South Plains Int’l Trucks, Inc., 139 F.R.D. 682, 683-84 (D. Colo. 1991); Polycast Technology Corp. v. Uniroyal, Inc., 1990 U.S. Dist. LEXIS 12444, 1990 WL 138968, *1-2 (S.D.N.Y. Sept. 20, 1990); Gomez v. City of Nashua, 126 F.R.D. 432, 434 n.1 (D.N.H. 1989); Chaney v. Slack, 99 F.R.D. 531, 533 (S.D. Ga. 1983); Galambus v. Consolidated Freightways Corp., 64 F.R.D. 468, 473 (N.D. Ind. 1974). Courts occasionally apply Rule 26(b)(3) analysis to work-product objections by a non- party who is subject to a subpoena, but in those cases, the parties typically have not argued the inapplicability of that rule to a non-party's own work-product. For example, the cases cited by P&C do not include any discussion as to the applicability of Rule 26(b)(3) to a non-party. P&C Memorandum, p. 13 (citing In re Sealed Case, 856 F.2d 268, 270 (D.C. Cir. 1988); National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980 (4th Cir. W. Va. 1992); Roatan Cruise Terminal, S.A. de S.V. v. HPA, Inc., 2011 U.S. Dist. LEXIS 109223 (S.D. Fla. Sept. 26, 2011); Official Comm. of Admin. Claimants v. Bricker, 2011 U.S. Dist. LEXIS 49504 (N.D. Ohio 2011). The fact that these courts ultimately applied Rule 26(b)(3) sub silentio to a non- party is not necessarily evidence of how the courts would rule if it had been argued that Rule 26(b)(3) did not apply to a non-party. In fact, in Tambourine, the eleventh circuit held that Rule 26(b)(3) does not apply to non-parties. 312 Fed. Appx. at 284. Therefore, had it been argued that Rule 26(b)(3) did not apply to the non-party in the Roatan case cited by P&C, the Florida district court would have been bound by Tambourine to agree. Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 29 of 88 27 4766410.6 Some courts have held that the work-product doctrine is only a partial codification of the work product doctrine and have extended the privilege when doing so furthers the purposes underlying the Hickman decision. Crosby v. City of New York, 269 F.R.D. 267, 278 (S.D.N.Y. 2010). The purposes include: “protecting an attorney's ability to formulate legal theories and prepare cases, preventing opponents from ‘free-loading’ off their adversaries' work, and preventing interference with ongoing litigation. ‘In some instances it was also significant that the non-party was at least potentially a party or had interests that were likely to be affected by the litigation in which the work product was sought.’” Id. (citations and footnotes omitted). In this case, the principles of the work product doctrine do not support its application to P&C’s communications with the government and documents referring to such communications. P&C’s clients are not Plaintiffs’ adversaries. Plaintiffs will in no way be “free-loading” off of P&C’s clients. P&C’s clients have no case to prepare, and there is no danger that Plaintiffs will use the documents against them. This is not a situation like the one in Eirini Zagklara v. Sprague Energy Corp. cited by P&C where the non-party is one of multiple individuals liable for the plaintiff’s injuries and could be later joined as a defendant. 2011 U.S. Dist. LEXIS 56782, 6-7 (D. Me. May 26, 2011). In Eirini, the court was concerned with the following situation: Whenever multiple individuals or entities might be liable for a plaintiff's injury, the plaintiff could sue only one and immediately subpoena a report prepared for another potentially-liable party. After obtaining the report, the plaintiff could then amend his or her complaint to add that party as a defendant. That possibility is not one that would be countenanced by any court interpreting the work product doctrine or Rule 26(b)(3). Unless and until it is clearly shown that Armada (Greece) is not and cannot be made a party to this case, the plaintiff's argument is premature. Id. Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 30 of 88 28 4766410.6 In this case, P&C’s clients are not (and cannot be) liable for Plaintiffs’ malpractice claims against C&B. There is no reasonable basis to contend that P&C’s clients will be joined as defendants in Plaintiffs’ malpractice claim. There is also no reasonable basis to contend that disclosure of P&C’s communications with the government regarding first-to-file matters, the quality of C&B’s services, and the fee dispute will in any way harm or prejudice P&C’s clients. In P&C’s Motion to Quash, P&C also argues that some courts have held that third-party work product is excluded from discovery under Rule 45 and Rule 26(c). Motion to Quash, pp. 16- 17, 27, 30. Rule 45 permits non-parties to seek protection from a subpoena that “requires disclosure of privileged or other protected matter.” P&C also argues that a protective order may be issued under Rule 26(c) to prevent disclosure of non-party work product. As set forth in the cases cited by P&C in its Motion to Quash, the condition precedent for protecting third-party “work product” under these Rules is, of course, that the information at issue must be “work product,” as defined under Hickman. In this case, as set forth above, the communications at issue are not protected work product under Hickman. Even if the work product doctrine did apply, the common interest doctrine does not apply to the disclosure of the requested communications to the government because such communications were not designed to facilitate a common legal interest shared by P&C’s clients and the government. The common interest doctrine is not a privilege in and of itself. Rather, it is an exception to the rule on waiver where communications are disclosed to third parties. See United States v. Bergonzi, 216 F.R.D. 487, 495-96 (N.D. Cal. 2003)(discussing “the common interest exception to waiver of the attorney-client/work product privilege”). “The common interest privilege … applies where (1) the communication is made by separate parties in the course of a matter of common [legal] interest; (2) the communication is designed to further that effort; and (3) the privilege has not been waived.” Id. at 495. Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 31 of 88 29 4766410.6 P&C cannot demonstrate that the specific communications at issue were designed to facilitate a common legal interest. If a common interest has been proved to exist, “the party seeking to rely on the doctrine must still demonstrate that the specific communications at issue were designed to facilitate a common legal interest … .” Intex Rec. Corp. v. Team Worldwide Corp., 471 F. Supp. 2d 11, 16 (D.D.C. 2007)(Minebea Co. v. Papst, 228 F.R.D. 13, 23 (D.D.C. 2005)). While Plaintiffs acknowledge that P&C’s clients and the government share a comment interest in the government’s FCA litigation against GSK, P&C’s communications, “casual comments” as P&C calls them, with the government relating to first-to-file matters, the quality of C&B’s services, and the fee dispute between C&B and Plaintiffs were not designed to facilitate such common legal interest. P&C shares no common interest with the government on such issues. P&C, therefore, waived any privilege relating to communications with the government relating to first-to-file matters, the quality of C&B’s services, and the fee dispute when it disclosed such communications to the government. Even if P&C’s communications with the government relating to first-to-file matters and the quality of C&B’s services are work-product privileged, P&C waived the privilege by disclosing some of those communications with Plaintiffs. For example, attached as Exhibit “G” to Plaintiffs’ Opposition to Motion to Quash (Dkt 11) is a copy of a letter from P&C to the government discussing first-to-file issues and the sufficiency of Plaintiffs’ Original Complaint that P&C shared with Plaintiffs. Finally, in the unlikely event that this court finds that P&C’s communications with the government are valid work product and that protection has not been waived, Plaintiffs still have a legitimate right to discovery because Plaintiffs have demonstrated a substantial need for such documents and communications. The documents are not available from any other source and relate to core issues in Plaintiffs’ malpractice action. “Even where work-product protection applies, the protection is not absolute. Disclosure of work product may be ordered if the party Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 32 of 88 30 4766410.6 seeking it can demonstrate substantial need for the information and an inability to obtain the information, or a substantial equivalent of it, by other means without undue hardship.” Crosby v. City of New York, 269 F.R.D. 267, 277 (S.D.N.Y. 2010). E. Plaintiffs’ Modified Requests 2 and 4 Seeking Documents Reflecting or Referring to Communications Between P&C and C&B and P&C and the Government Are Relevant, Narrowly Tailored and Not Work Product. P&C objects to Modified Request 2 and 4 as seeking only work product and attorney- client privileged communications. P&C Motion to Quash, pp. 29-30 (Dkt. 1). Modified Requests 2 and 4 seek only documents reflecting or referring to communications between P&C and C&B and P&C and the Government from July 1, 2003 to February 29, 2004 related to (a) the sufficiency and quality of Plaintiffs’ Original Complaint; (b) the first-filed status of such complaint; and (c) the sharing agreement.” Modified Request 11 seeks only “[d]ocuments, including any communications with the Government, from September 2009 to the present referring to Plaintiffs’ malpractice claim and C&B’s fee dispute.” As explained above, these requests are undeniably relevant. They relate specifically to allegations asserted in Plaintiffs’ malpractice claim. These requested documents are also not work product. As described above, the work product doctrine does not protect materials prepared by P&C in the present litigation because P&C’s clients are not parties to this litigation and protecting the requested documents is not consistent with Hickman. F. Plaintiffs’ Modified Request 5 Seeking Communications Between P&C and the Government Regarding Data Mining and the Protective Order Are Relevant, Narrowly Tailored and Not Work Product. In Modified Request 5, Plaintiffs seek “[a]ll documents, including any communications between P&C and the Government, from January 1, 2007 to November 1, 2009 referring to the data-mining project and/or the protective order entered in the GSK Lawsuits.” In the GSK Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 33 of 88 31 4766410.6 Lawsuits, the government agreed to let the relators and their counsel mine the documents in the government’s investigatory file for data that could be used in the both Plaintiffs’ case and P&C’s clients’ case against GSK, subject to a protective order (the Protective Order). P&C on behalf of both its clients and Plaintiffs communicated with the government regarding the entry of the Protective Order and P&C’s and Plaintiffs’ efforts to data mine the government’s investigatory file. Although the Protective Order was entered in the case filed by P&C’s relators in Massachusetts, the Protective Order, as set forth in paragraph two, applied also to Plaintiffs’ qui tam case filed in Colorado, as the purpose of the Order was to aid not only P&C’s clients, but also Plaintiffs. See Protective Order (attached as Exhibit 6). Although P&C does not specifically address P&C’s communications with the government regarding the Protective Order and data mining in its Motion to Quash, P&C argues generally that all of its communications with the government are work product. As described above, the work product doctrine does not protect materials prepared by P&C in the present litigation because P&C’s clients are not parties to this litigation and protecting the requested documents is not consistent with Hickman. Furthermore, communications between P&C and the government relating to the Protective Order are not work product, as such communications were to advance Plaintiffs’ and P&C’s collective efforts to data mine the government’s investigatory file. G. Plaintiffs’ Modified Request 12 Seeking P&C’s Letter to the Government Referenced in Its June 26, 2012 Letter to the Government Is Not Protected From Discovery Under Federal Rule of Evidence 408. Attached as Exhibit “G” to Plaintiffs’ Opposition to Motion to Quash (Dkt 11) is a copy of a letter from P&C to the government discussing first-to-file issues and the sufficiency of Plaintiffs’ Original Complaint that P&C shared with Plaintiffs. In the first paragraph of the letter, P&C states that the letter is intended to be preliminary and that P&C intends to send the government “a more complete letter … .” At the top of each page of the letter, P&C indicates Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 34 of 88 32 4766410.6 that the letter is “Privileged and Confidential Settlement Communication Per Federal Rule of Evidence 408.” Modified Request 12 seeks “[t]he letter referenced in paragraph 1 of P&C’s June 26, 2012 letter to the Government … and all communications with the Government related to the June 26, 2012 letter and the “more complete letter” referenced therein. At oral argument, P&C argued that like the June 26, 2012 letter, the “more complete letter” to the Government was part of a settlement negotiation with the Government and protected from disclosure under Federal Rule of Evidence 408. This is not the case. The settlement privilege in Rule 408 does not apply. Rule 408 applies only to the admissibility of evidence at trial. It does not protect evidence from discovery. In re Subpoena Issued to CFTC, 370 F. Supp. 2d 201, 211 (D.D.C. 2005)(Court held that Rule 408 does not protect settlement communications from discovery.). Furthermore, under Rule 408 settlement offers are inadmissible only when offered to prove liability or damages. See Fed. R. Evid. 408. In this case, the letter at issue will not be used to establish liability on the part of P&C but will be used for another purpose. Furthermore, it is indisputable that the June 26, 2012 letter and the “more complete letter” are not work product, but rather settlement communications exchanged with an adversary. P&C does not argue otherwise. H. Plaintiffs’ Modified Requests at Issue Do Not Cause Any Undue Burden on P&C. In her Memorandum Order, Magistrate Robinson found that P&C has demonstrated – through a declaration – that compliance with the subpoena would impose a “substantial and undue” burden. Magistrate Robinson asserts that Plaintiffs’ did “not attempt” to rebut P&C’s declaration. Memorandum Order, p. 5. This is not case. Magistrate Robinson’s reliance on P&C’s Declaration, drafted before Plaintiffs modified their requests and withdrew Modified Requests 6-9, is erroneous. Plaintiffs mooted most, if not all, of the purported burden that P&C Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 35 of 88 33 4766410.6 asserts in its Declaration when Plaintiffs modified the requests in their Opposition to P&C’s Motion to Quash and withdrew Modified Requests 6-9 by agreement. In its Opposition, Plaintiffs also make clear that they did not require P&C to log its attorney-client privileged communications with its clients, except for any communications relating to P&C’s evaluation of Thorpe’s prospective claim and handling of Thorpe’s confidential information. Opposition, p. 38 (Dkt. 11). Now that Plaintiffs’ have withdrawn their request for documents related to P&C’s evaluation of Thorpe’s prospective claim and handling of Thorpe’s confidential information (i.e., Modified Requests 6-8), P&C is not required to provide a log for any attorney client communications. At oral argument, counsel for Plaintiffs also explained that any burden in searching for responsive documents would be minimal. As modified, the requests currently at issue would likely require P&C to search only the emails of one (1) custodian, i.e., Erika Kelton, using a few key-word searches. Oral Argument Transcript, p. 53, line 8 to p. 54, line 7. Prior to P&C filing its Motion to Quash, on multiple occasions, Plaintiffs expressed a willingness to narrow their requests to reduce the alleged burden on P&C. Plaintiffs also proposed providing a list of key-words that P&C could use to search its computer system for responsive documents and/or limiting searches for requested documents to particular custodians. P&C ignored Plaintiffs’ letter. See letter dated April 22, 2013 (attached to Plaintiffs’ Opposition as Exhibit “D”). Requiring P&C to produce the requested documents will not cause any undue burden. “The issue is not whether compliance creates a burden but rather whether that burden is unduly. The issue of undue burden ‘is, of course, a matter to be decided in the light of the circumstances of the case … .’” First Am. Corp. v. Sheik Zayed Bin Sultan Al-Nahyan, 1996 U.S. Dist. LEXIS 4577, 12-13 (D.D.C. 1996)(quoting Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403 (D.C. Cir. 1984)). “To evaluate the burden, the Court must consider ‘the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of discovery in resolving the issues.’” Id. (quoting Fed. R. Civ. P. Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 36 of 88 34 4766410.6 26(b)(2)(C)(iii)). As set forth above, Plaintiffs’ Requests seek documents directly related to the allegations asserted in their malpractice Complaint or the defenses raised in the counterclaim for a fee. The amount in controversy is quite large. The Massachusetts District Court is currently holding C&B’s disputed contingency-fee award in the approximate amount of $30 million dollars pending the resolution of Plaintiffs’ legal malpractice claim and C&B’s fee dispute. The issues at stake are not only important for both Plaintiffs and C&B, but also for protecting the integrity of the legal profession. Compelling compliance with Plaintiffs’ subpoena is particularly important due to C&B’s failure to properly manage and preserve its file and evidence in this matter. C&B had a duty to preserve documents and information that it knew, or reasonably should have known, would be relevant to this litigation. C&B also had a duty to properly maintain and preserve its file while representing Plaintiffs. C&B’s failure to properly maintain and preserve its clients’ file and evidence during active litigation is an extremely serious issue. Such a failure by lawyers cannot be excused or allowed to further harm their former clients. P&C has the resources to produce the requested documents. It need not hire counsel (it is representing itself) and received a contingency-fee award plus statutory fees that likely exceed $30 million dollars. According to its website, P&C “is the nation’s most successful and most experienced law firm representing whistleblowers.” It claims that “[w]histleblower cases brought by Phillips & Cohen attorneys have recovered more than $11 billion in civil and related criminal settlements for government entities - a record of success that far exceeds any other law firm.” P&C website, http://www.phillipsandcohen.com/About-the-Firm.shtml (visited on May 24, 2013). Certainly, P&C has the sophistication, the experience, and the resources to easily cull and produce the requested, non-privileged communications. Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 37 of 88 35 4766410.6 IV. CONCLUSION For all the foregoing reasons, Plaintiffs respectfully request this Honorable Court vacated Magistrate Robinson’s Memorandum Order and deny Phillips and Cohen, LLP’s Motion to Quash as provided in the form of Order attached as Exhibit 7. Respectfully submitted, OBERMAYER REBMANN MAXWELL & HIPPEL LLP /s/ Joseph J. McGovern, Esquire (D.C. Bar No. 936609) 1617 John F. Kennedy Boulevard Philadelphia, PA 19103 Telephone: (215) 665-3000 Fax: (215) 665-3165 Attorney for Plaintiffs Gregory Thorpe and Blair Hamrick Date: December 16, 2013 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 38 of 88 4766410.6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN RE THIRD-PARTY SUBPOENA TO PRODUCE DOCUMENTS NO. 1:13-mc-00405-JEB-DAR GREGORY THORPE, et al. Plaintiffs vs. KEITH F. CROSS, et al. Defendants NO. 1:12-cv-11632-RWZ Pending in District of Massachusetts CERTIFICATE OF SERVICE The undersigned hereby certifies and states that a true and correct copy of the attached Response has been served via ECF upon the following: Peter Wilson Chatfield, Esquire PHILLIPS & COHEN LLP 2000 Massachusetts Avenue, NW Washington, DC 20036 Stephen Hasegawa, Esquire PHILLIPS & COHEN LLP 100 The Embarcadero, Suite 300 San Francisco, CA 94105 /s/ Joseph J. McGovern, Esquire Attorney for Plaintiffs Gregory Thorpe and Blair Hamrick Dated: December 16, 2013 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 39 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 40 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 41 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 42 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 43 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 44 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 45 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 46 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 47 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 48 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 49 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 50 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 51 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 52 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 53 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 54 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 55 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 56 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 57 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 58 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 59 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 60 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 61 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 62 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 63 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 64 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 65 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 66 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 67 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 68 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 69 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 70 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 71 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 72 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 73 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 74 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 75 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 76 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 77 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 78 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 79 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 80 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 81 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 82 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 83 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 84 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 85 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 86 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 87 of 88 Case 1:13-mc-00405-JEB-DAR Document 20 Filed 12/16/13 Page 88 of 88