US ex rel May v Purdue Pharma

Defendant subpoenaed relators’ attorneys for deposition, to inquire into relators’ knowledge of the matters alleged in the Complaint, to challenge jurisdiction pursuant to the public disclosure bar of the FCA. The attorneys represented one relator’s husband on a nearly identical FCA action, which was dismissed. A Complaint was then filed by relators. The court found:

The facts germane to the issue of the application of the public disclosure bar pertaining to when and how Relators obtained knowledge of the substantive allegations of fraud are distinct from and not intertwined with the central merits of Relators’ fraud claims as set forth in their Amended Complaint.

The court, following 8th Circuit precedent in Pamida Inc v ES Originals Inc, allowed the deposition, finding the high hurdles protecting a party’s counsel from deposition were not intended to protect counsel from deposition about a previous case. The court noted the attorney-client privilege would continue to apply and the Defendant could not inquire into communications between the earlier client and the attorneys, but could conduct discovery “of facts underlying those communications.”