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Qui Tam 2020 is the third annual conference of the Federal Bar Association's Qui Tam Section, for which TELG's Scott Oswald serves as chair. The two-day event will tackle some of the hottest topics in False Claims Act litigation, with panels featuring attorneys from both sides of the aisle, along with government prosecutors, agency representatives, and subject-matter experts.
Here Scott discusses discovery under the federal False Claims Act with Selina P. Coleman of Reed Smith LLP, who'll moderate a panel on the topic on Day Two of the conference.
This video interview by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on February 4, 2020.
Qui Tam 2020 Panel Preview: Discovery in False Claims Act Cases
» Click here for registration and full details on Qui Tam 2020
(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: [Addressing camera] Welcome — we are here with another one of our discussions with our moderators in anticipation of the Qui Tam Conference, which is in Washington on February 27-28, 2020. We are here with Selina Coleman.
[Turning to Coleman] Selina, you are a partner at Reed Smith. Tell us a little bit about your panel.
Selina P. Coleman: So we are presenting on the False Claims Act and discovery in the wake of the Supreme Court’s decision in Escobar.
Oswald: Tell us about Escobar. There’s a little something for everyone [in the case], both for the relators’ bar and for the defense bar. Talk to us about materiality in particular — and how that plays out in discovery, as it might come up in your panel.
Coleman: Absolutely. Escobar, to your point, was perceived as a win by both the relators’ bar and the defense bar. But one thing that really came out of it is that, when the government has knowingly paid a claim [despite an alleged fraud], that is strong evidence that [the alleged fraud] is not something that is material to the government. And as a result, after Escobar both the defense bar and the relators’ bar really want to have a sense of what did the government think about certain conduct — and whether or not that conduct would have mattered to them when they paid certain reimbursement claims.
Oswald: So why is discovery relevant in that situation?
Coleman: Discovery from the government could actually go to show what the government was thinking when it might have paid certain claims. There might be some things that the government might not have contemplated, whether it mattered or not to their payment decision. But to the extent that the government did review something — did discuss [it] internally, whether with respect to certain defendants or just generally discuss a certain type of reimbursement claim or a type of conduct, for example, in the context of reviewing a qui tam lawsuit — that might become something that would matter both for the defendants and the relators in that case.
Oswald: Does it matter how the government has treated other defendants at all? Or just the one defendant that is seeking the discovery?
Coleman: It could matter how they perceived the issue for other defendants. If the government has looked at something and decided that it isn’t something that would necessarily effect their payment decision, and decided to keep paying the claims for other defendants, then the defendant to the relevant qui tam lawsuit might say that that would show that it wouldn’t be material to the government in that context [either].
Oswald: Last year we had Michael Granston [of the U.S. Department of Justice] speak at the Qui Tam Conference, and one of the things that he stressed was the fact that the government was not going to be goaded into dismissing claims merely because discovery was a nuisance for a particular [federal] agency. Comment on that: How have you seen that play out?
Coleman: I certainly agree with that sentiment. While Escobar has led to increased discovery requests, which are known as Touhy requests, that isn’t something that should be used — at least from my perspective — as a tool to wield against the government. It really should be something that’s used by the defense bar or the relators’ bar to try to get the evidence it needs to either prove a relator’s case or, in the case of the defendant, to show that the relator’s claims cannot survive.
Oswald: One of the things we try to do at the Qui Tam Conference is have viewpoints from all sides. Tell us a little bit about that: There’ll be relators’ counsel, government counsel on your panel? Who should we expect?
Coleman: Absolutely. We wanted to present a balanced panel and, recognizing that many of our audience members will want to see the government’s perspective on seeking discovery from their agencies, we do have two folks in the government. We will have Lt. Col. Chris LaCour, who is head of torts for the [U.S.] Army. We’ll also have Amy Kossak, who’s with the Department of Justice, where she’s a trial attorney. So we will have both of them represented on the panel. They’ve dealt with a number of Touhy requests.
We’ll also have Chris Harwood. He is a partner at Morvillo and he will provide the defense perspective. We will also have Jed Wulfekotte, who is a partner at Stein Mitchell. He will speak on behalf of relators’ counsel.
Oswald: I want to finish with just a little bit about you. Lawyers are people, too. Other than faith and family, give me a sense of what gets you up in the morning. What’s your passion?
Coleman: My clients, really. I have always loved health care since I was a child. It’s always been a passion of mine, but I was an English major so medicine wasn’t in the cards [for me]. I am so excited about what they do. They are doing great things, and it is my pleasure to serve them and work with them to solve problems.
Oswald: Selina, thank you.
[Turning to camera] We look forward to seeing all of you at next year’s Qui Tam Conference. It is on February 27-28 here in Washington. You can register at the Federal Bar Association Web site at fedbar.org.