UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

Transcription

1 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 1 of 30 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION UNITED STATES OF AMERICA ex. rel. ALON J. VAINER, M.D., F.A.C.P. and DANIEL D. BARBIR, R.N., vs. Relators, CIVIL ACTION FILE NO. 1:07-CV-2509-CAP DAVITA, INC. and GAMBRO HEALTHCARE, INC., and their respective subsidiaries and affiliated companies, Defendants. RELATORS MOTION TO COMPEL TESTIMONY AND DOCUMENTS BASED ON THE CRIME-FRAUD EXCEPTION TO THE ATTORNEY- CLIENT PRIVILEGE AND BRIEF IN SUPPORT

2 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 2 of 30 INTRODUCTION The attorney-client privilege is the client s privilege, not the lawyers. 1 The privilege does not extend to communications made for the purpose of furthering a crime or fraud. The privilege does not shield from disclosure a nefarious scheme to hide the truth during the discovery process from the opposing party and the Court. The privilege cannot be used to hide perjury or to cover up subornation of perjury, witness tampering, or obstruction of justice. DaVita s misuse and abuse of the privilege to hide and cover up these very crimes and its discovery fraud perpetrated on Relators and the Court is unequivocally established by the November 13th deposition of Sharon Adams, despite 27 instructions by DaVita to Adams not to answer questions as DaVita continued to seek shelter in the privilege to hide the truth. Now it is time for the full truth to be disclosed so that appropriate sanctions and severe penalties can be imposed on DaVita and the attorneys who engaged with it in the commission of these crimes and this fraud. At a minimum, DaVita must be stripped of its attorney-client privilege in this case. On November 13th, Adams, a former DaVita Clinical Service Specialist, admitted in one instance that she lied under oath on January 18, 2013 when she testified that prior to her January 18th deposition, she had not reviewed her 1 Sept. 12, 2014 Hr g Tr. at

3 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 3 of 30 deposition testimony from the first session of her deposition on January 10th. On November 13th, Adams admitted that she had in fact reviewed her prior deposition on January 17th with DaVita lawyers, Ben Fox and Pat Fagan of Bondurant, Mixson & Elmore. These lawyers were sitting in the room on January 18th when Adams committed perjury by denying that she had previously reviewed the January 10th deposition. These lawyers knew that she was lying because they had reviewed the deposition with her the day before. And yet on January 18th, Mr. Fox did not correct his witness s perjury, rather he ratified it and repeated it by stating on the record twice that she had denied that a prior review had taken place. A review of Adams November 13th deposition makes clear that if the Court orders Adams to answer all questions about her meeting with DaVita s attorneys on January 17th and her review on that day of the January 10th deposition with them, it is beyond a reasonable doubt that the details of DaVita s crimes and fraud will be exposed. The Court will learn that it was during this January 17th review that Adams (1) was pointed to the portions of her testimony that needed to be changed, (2) was provided with the false testimony she should give on January 18th to explain her changes to her January 10th testimony, and (3) was provided with the false testimony she should give on January 18th to make her testimony consistent with the false information of DaVita throughout discovery concerning 2

4 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 4 of 30 maintenance doses of Venofer and Snappy s role in suggesting wasteful doses. The November 13th deposition of Adams proves that DaVita has abused the attorney-client privilege and demands that its lawyers be called before the court to answer whether they have violated their oaths as Officers of the Court. DaVita s scheme of managing witnesses to provide false testimony throughout the discovery period to support its fraudulent defense that determination of Venofer maintenance doses was a function of individual doctor choices and not part of a corporate scheme to intentionally create unnecessary waste through Snappy will now collapse like a house of cards. The crime-fraud exception to the attorney-client privilege applies to all communications between Adams and DaVita attorneys regarding her deposition preparation and specifically to the 27 questions that Adams refused to answer based on DaVita s assertion of privilege. But the scheme permeated discovery and was furthered through many other DaVita witnesses and counsel to an extent that the crime-fraud exception must also be held to apply to all attorney-client communications related to all DaVita witnesses preparation on the subject of maintenance doses of Venofer and Snappy s role related thereto. 2 Under these facts, our system of justice demands nothing less. 2 And any privilege that arguably existed was waived. 3

5 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 5 of 30 STATEMENT OF FACTS I. Adams admitted to knowingly providing false testimony under oath during her re-opened deposition Adams was a Clinical Services Specialist for DaVita from 2005 until May of Adams has been deposed a total of three times in this case. She is now prepared to testify a fourth time to tell the Court the whole truth and to disclose to the Court who made her do what she did on January 18. A. Sharon Adams told the truth about Snappy in her first deposition During her first deposition on January 10, 2013, Adams testified that Snappy had made specific Venofer maintenance dose recommendations since approximately Adams 1st Dep. (Ex. 1) at 112:2-114:4. At the commencement of her deposition, Adams had complained about back trouble, so Relators offered to split her deposition into two sessions with the second session to be conducted on January 18th. Relators contacted Defendants prior to Friday, January 15th and informed Defendants that they did not need to continue the deposition. See Evans and Fox s (Ex. 4). But Defendants stated that they wanted to continue her deposition to conduct a re-direct. Id. B. Adams changed her truthful testimony of January 10 to false testimony in her second deposition on January 18 After 4.5 hours of preparation with counsel on Sunday, January 17, 2103, 4

6 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 6 of 30 during a 13-minute re-direct examination by DaVita s counsel, Adams disavowed any knowledge of how Snappy worked with regard to Venofer dosing in what appears to be a rehearsed series of questions and answers. Adams 2nd Dep. (Ex. 2) at 136:10-137:13. After changing her testimony, Adams went out of her way to claim that on the first day of her deposition she was nervous, tired, sick, and confused. Id. at 149: After disavowing knowledge of Snappy during the dog-and-pony show on re-direct, she parroted the company line that Snappy never recommended doses prior to 2011 and that nurses always had to call doctors to obtain specific maintenance doses of iron: Snappy never made a recommendation in a dose change if you had a range. That had to be generated from conversation with a physician in order to determine what that dose should be. Id. at 157:5-8. C. Adams admits that she changed truthful testimony on January 10th to false testimony on January 18th In her re-opened discovery deposition on November 13, Adams admitted that her testimony during her second deposition, to-wit, that Snappy never made a recommendation for a dose change if you had a range, was not the truth. Adams 3rd Dep. (Ex. 3) at 53:5-12. She admitted that she did not know of any factual basis to support the truth of her January 18th false testimony other than from communications with DaVita lawyers. Id. at 55:3-8. 5

7 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 7 of 30 Adams admitted that she told the truth during her first deposition and that she decided to change the truth Snappy did suggest specific maintenance doses of Venofer to an untruth Snappy never did so until 2011 in discussion with the attorneys. Id. at 43:12-16; 66: She further admitted that the plan devised was to try to get in [her] clarification and change [her] testimony when Relators counsel again asked her about Snappy in the second deposition. Id. at 51:9-13. Adams admitted that claiming to be nervous, tired, sick, [and] confused and complaining of the rapidity of questions were excuses during her second deposition for changing her testimony from the first deposition. Id. at 65:17-66:1. She admitted that it was not the rapidity of questions that in any way confused [her] when she testified regarding Snappy s role in suggesting maintenance doses of iron during her first deposition. Id. at 42:1-21. D. Adams knowingly provided false testimony regarding her review of her prior January 10th testimony and DaVita counsel confirmed that falsity on the record During her second deposition, Adams also claimed that she had not reviewed her testimony from the first day of her deposition at all: Q. [When you met with Mr. Fox] [d]id you go over your testimony 3 Relators are submitting video clips of testimony from Adams first and second depositions discussed herein and shown during the hearing on Relators motion for sanctions as Exhibit 5 and Relators are submitting the full video deposition of Adams third deposition as Exhibit 6. 6

8 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 8 of 30 from the first day of your deposition? Did you read it? A. No, I did not. Q. So you didn t review it at all? A. No, sir. Ex. 2 at 146:17-147:5; see also id. at 159:2-160:5 ( Q. You hadn t discussed it [your testimony] at all? A. No. ). And DaVita counsel affirmed on the record that Adams allegedly did not review her first deposition testimony prior to her second deposition: MR. FOX: Lin, she also testified that she hadn't reviewed her testimony in advance of this. Id. at 150: MR. FOX: Just clarifying she also testified that she had not reviewed her testimony in this past week. Id. at 150: But, during her third deposition, Adams admitted that she did in fact review her deposition testimony after her first deposition. Ex. 3 at 70:18-71:19. She testified that she did not personally read it, but it was reviewed with her by DaVita attorneys Ben Fox and Pat Fagan. Id. at 70:2-8. She admitted that when she claimed not to have reviewed her first deposition transcript before her second deposition she knew that was a lie. Id. at 75:2-11; 69:6-71:19; 74: She 7

9 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 9 of 30 testified that it was not her idea to lie about this issue and that she was very uncomfortable when [she] gave that testimony denying that [she] reviewed [her] deposition. Id. at 72:5-16; 73:3-6. When asked why she denied having reviewed the first transcript, she testified that she could not say why without disclosing attorney-client communications. Id. at 72:5-12. E. Adams was not relying on the false testimony of Rich Tetley Adams admitted that she did not speak with anyone other than DaVita lawyers about Snappy or the substance of her deposition testimony between the first and second depositions though she did confide in her fellow Clinical Service Specialists that the deposition preparation and testimony experience had been very tough and that it had upset her. Id. at 75:12-76:22; 75:22-76:22. She does not know Rich Tetley and has never spoken with him or seen or heard his testimony regarding Snappy. Id. at 37:6-16; 38:15-23; 39: F. Adams is now prepared to tell the whole truth During her third deposition, DaVita counsel prevented Adams from answering 27 questions about the details of her communications with counsel by invoking privilege (see Appendix A). In response to all 27 questions, Adams 8

10 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 10 of 30 stated that she would not answer because of DaVita s objections. 4 Adams was clear that if she is called to the Court s Chambers to answer the questions set forth in Appendix A, she knows the answers; she remembers what the DaVita attorneys told her and she says, through tears, that she feels bad about it. Id. at 48:3-50:17. She felt bad after her first and second depositions. Id. at 48: She acknowledges that when she changed her testimony from a truth to a lie, it harmed [her] reputation. Id. at 64: She further made clear that if she had the opportunity to tell the Court the whole truth where there were no instructions not to answer, that [she] will feel better about what happened to [her] that [she] would be able to tell someone the truth and that at the end of the day, if [she] had a chance to tell Judge Pannell the whole truth, he s going to understand why [she] did what [she] did and that he s going to know who made [her] do it. Id. at 78:6-79:6. ARGUMENT AND CITATION TO AUTHORITY I. Legal Standard The Federal Rules of Civil Procedure strongly favor full discovery 4 Despite the Court s admonishment to the parties to refrain from unnecessary form objections, DaVita s counsel made a total of 26 objections to form. See Ex. 3. There were only 98 minutes of deposition testimony. See id. at 5:9, 41:22, 41:25, 62:21, 62:24, 79:19. This amounts to one form objection every 3.77 minutes. 9

11 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 11 of 30 whenever possible. Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). The party attempting to avoid discovery by invoking the attorney-client privilege bears the burden of proving it is entitled to that privilege. See In re Grand Jury Investigation, 842 F.2d 1223, 1225 (11th Cir.1987); In re Seroquel Prod. Liab. Litig., 2008 WL , at *2 (M.D. Fla. May 7, 2008). The attorney-client privilege does not extend to communications made for the purpose of furthering a crime or fraud. In re Grand Jury Proceedings, 142 F.3d 1416, 1419 (11th Cir. 1998). The Eleventh Circuit applies a two-part test for determining whether the crime-fraud exception to privilege exists: First, there must be a prima facie showing that the client was engaged in criminal or fraudulent conduct when he sought the advice of counsel, that he was planning such conduct when he sought the advice of counsel, or that he committed a crime or fraud subsequent to receiving the benefit of counsel's advice. Second, there must be a showing that the attorney's assistance was obtained in furtherance of the criminal or fraudulent activity or was closely related to it. In re Grand Jury Investigation, 842 F.2d at The exception applies to work-product in the same way that it applies to the attorney-client privilege and presents one of the rare and extraordinary circumstances in which opinion work product is discoverable. Cox v. Adm r U.S. Steel & Carnegie, 17 F.2d 1386, 1422 (11th Cir. 1994). 10

12 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 12 of 30 The first prong is met by a showing of evidence, which left un-rebutted, would result in a finding that a crime was committed. In re Warner, 87 B.R. 199 at 202 (M.D. Fla. 1998) (citing Koenig v. Internat l Sys. & Controls Corp., 693 F.2d 1235, 1245 (5th Cir. 1982)). But in assessing the crime-fraud exception the Court looks only for prima facie evidence of [the crime], without considering the existence of evidence to the contrary. Jones v. Tauber & Balser, P.C., 503 B.R. 162, 187 modified, 503 B.R. 510 (N.D. Ga. 2013). The second prong is met by a showing that the communication is related to the criminal or fraudulent activity in question. In re Grand Jury Investigation, 842 F.2d at Courts have promulgated slightly different standards for the degree of relatedness necessary to meet this prong, ranging from reasonably relate, close relationship, and potential relationship. Id. (internal citations omitted). Nonetheless, the different formulations share a common purpose identifying communications that should not be privileged because they were used to further a crime or a fraud. Id. When determining whether the communication is sufficiently related, the court must take into account that the [movant] does not know precisely what the material will reveal or how useful it will be. Id. [T]he requirement that legal advice must be related to the client's criminal or fraudulent conduct should not be interpreted restrictively. Id. at Accordingly, any 11

13 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 13 of 30 legal assistance received in committing the fraud must be treated as related to the fraud. Id. The crime-fraud exception can apply, regardless of a lawyer s knowledge that he was assisting in fraud. Id. In determining whether the crime-fraud exception applies, the court can perform an in camera review of the attorney-client communications to determine whether they are excepted from privilege. Tindall v. H & S Homes, LLC, 757 F. Supp. 2d 1339, 1352 (M.D. Ga. 2011). The standard for showing that attorneyclient communications should be reviewed in camera is not a stringent one. Id.; see also United States v. Zolin, 491 U.S. 554, 572 (1989) ( The threshold we set, in other words, need not be a stringent one. ). [A] lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege. Zolin, 491 U.S. at 572. To warrant an in camera review, the party opposing the privilege must only make a preliminary showing, without the allegedly privileged material, that the communication was made in furtherance of illegal or fraudulent activity. Tindall, 757 F. Supp. 2d at 1352 (internal citations omitted). This preliminary showing must be more than a mere allegation of fraud; but, it does not need be conclusive proof of fraud. Id. II. Testimony regarding Adams conversations with counsel relating to Snappy and Venofer dosing and related work product is not privileged Adams November 13th testimony establishes that communications between 12

14 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 14 of 30 her and DaVita counsel regarding DaVita s Venofer maintenance dosing practices and Snappy are not privileged and must be compelled because (a) the crime-fraud exception applies, (b) the privilege was waived, or (c) no privilege exists. A. No privilege exists because of the crime-fraud exception The first prong required to show application of the crime-fraud exception is satisfied because criminal conduct occurred during attorney-client communications prior to and at the deposition. Witness tampering occurred during Adams deposition preparation sessions and perjury, subornation of perjury, and an obstruction of justice occurred thereafter. All of these crimes were in furtherance of a discovery fraud being perpetrated on Relators and the Court. Witness tampering. DaVita, acting through its attorneys, engaged in witness tampering to prevent Adams from testifying truthfully regarding Snappy s role in suggesting wasteful maintenance doses of iron. Witness tampering requires a showing that one corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to influence, Delay, or prevent the testimony of any person in an official proceeding. 18 U.S.C. 1512(b)(1). It is witness tampering to cause a witness to testify to something she does not personally know to be true. United States v. LaShay, 417 F.3d 715, 718 (7th 13

15 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 15 of 30 Cir. 2005); see also United States v. Gabriel, 125 F.3d 89, 102 (2d Cir. 1997) (providing a false narrative to witness and suggesting they think this through sufficient to find witness tampering). DaVita counsel did exactly that. They caused Adams to change her testimony from truth to untruth. It was in discussion with the attorneys that Adams decided to change her testimony from the truth (that Snappy did suggestion maintenance doses of iron) to untruth (that Snappy never did so until 2011). Ex. 3 at 43:12-16; 66: Adams has no personal knowledge to support the false statement. Id. at 55:3-8. She provided the testimony based solely on information provided to her by DaVita attorneys. Id. at 55:3-8. Indeed, she did not speak with anyone except DaVita attorneys about Snappy or the substance of her deposition testimony. Id. at 75:12-76:22. Further, DaVita s counsel corruptly persuaded Adams to testify that she had not reviewed her first deposition transcript before her second deposition to avoid disclosing that DaVita counsel had directed her to the portion of her deposition testimony that they wanted her to change. Despite having reviewed her first deposition transcript with her counsel prior to her second deposition, Adams testified that she had not done so at all and knew that testimony was a lie when she gave it. Ex. 2 at 146:17-147:5, 159:2-160:5; Ex. 3 at 75:2-11; 69:6-71:19; 74: It was not her idea to lie on this issue and she was very uncomfortable 14

16 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 16 of 30 when [she] gave that testimony denying that [she] reviewed [her] deposition at all. Ex. 3 at 72:5-16; 73:3-6. When asked why she denied having reviewed the first transcript, she testified that she could not say why without disclosing attorneyclient communications. Id. at 72:5-12. Perjury. In addition to lying about her review of her January 10th deposition, Adams also committed perjury during her second deposition when she testified that Snappy never suggested specific maintenance doses of iron and instead, nurses had to contact physicians to obtain those doses. A witness commits perjury when the witness (1) takes an oath to testify truthfully and (2) willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true. 18 U.S.C The elements of perjury are easily satisfied. First, Adams took an oath to testify truthfully during her second deposition. Ex. 2 at 132:8. Second, she willfully provided false testimony in violation of that oath. She admitted during her third deposition that she changed her truthful testimony about Snappy s role in determining maintenance doses of iron to false testimony on that same subject matter. Ex. 3 at 43:12-16; 66: And she testified that this change in testimony was made intentionally she even planned which of Relators counsel s questions she would pounce on to provide the false testimony. See id. at 51:

17 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 17 of 30 (testifying that she knew where she was supposed to change her testimony). Thus, it was willful and not by mistake or inadvertence. The standard for the statutory willfulness requirement is the voluntary, intentional violation of a known legal duty. United States v. Manfredi, 628 F. Supp. 2d 608, 628 (W.D. Pa. 2009). Subornation of perjury. According to Adams November 13th testimony, DaVita attorneys Ben Fox and Pat Fagan suborned Adams perjury. As stated above, it was in discussion with DaVita counsel that Adams decided to change her testimony regarding Snappy's capabilities and it was not her idea to claim she had not reviewed her first deposition transcript, when in fact she had. Further, and crystalizing DaVita counsel s complicity in Adams perjury, Fox and Fagan were present with Adams on January 17th and reviewed her January 10th testimony with her. Proving that the attorneys were part of the plan for Adams to perjure herself, Fox confirmed Adams lie about not reviewing her transcript on the record on two separate occasions on January 18th. Ex. 2 at 150:14-15 ( she also testified that she hadn t reviewed her testimony in advance of this ); 150:17-19 ( Just clarifying she also testified that she had not reviewed her testimony this past week. ). Second prong: The attorney-client communications occurred immediately prior to the depositions where the crimes occurred and continued into the depositions. The communications prior to the depositions were specifically to 16

18 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 18 of 30 prepare Adams to testify on behalf of DaVita. See Ex. 1 at 19:12-20:25 (testifying that she met with DaVita counsel for 19.5 hours to prepare for her first deposition) and Ex. 2 at 146:17-25 (testifying that she met with DaVita counsel for 4.5 hours to prepare for her second deposition). B. DaVita has waived privilege At her third deposition, Adams voluntarily disclosed information concerning her conversations with DaVita counsel regarding Snappy and iron dosing, without DaVita s making any privilege objections. These voluntary disclosures involve the same subject matter as the still hidden conversations, thus DaVita has waived its right to assert that the latter are privileged. When a client testifies concerning portions of an attorney-client communication, the attorney-client privilege may be waived. Lockheed Martin Corp. v. L-3 Commc ns Corp., 2007 WL , at * 5 (M.D. Fla. July 29, 2007) (citing Cox v, 17 F.2d at 1418). The general rule is that voluntary disclosure of privileged attorney-client communication constitutes waiver of the privilege as to all other such communications on the same subject matter. In re Consol. Litig. Concerning Int l Harvester s Disposition Wis. Steel, 666 F. Supp. 1148, 1153 (N.D. Ill. 1987). This waiver has been applied when a party s employee provides deposition testimony regarding an attorney-client communication. For example, in Nguyen v. 17

19 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 19 of 30 Excel Corp., 197 F.3d 200, 206 (5th Cir. 1999), the defendant-company waived its privilege regarding a communication by failing to object to an executive s responses to questions regarding the substance of that communication. The testimony that Adams provided without objection deals with Snappy and iron dosing the same subject matter as the testimony sought here. Ex. 3 at 34:11-19; 43: Adams testimony was just as specific as the information purportedly contained in the still undisclosed conversations, thus passing the test for whether the privilege has been waived. C. No privilege otherwise exists In Adams deposition, DaVita also asserted attorney-client privilege over unprivileged information and thus erroneously prevented Adams from responding to numerous questions. The attorney-client privilege only protects communications between an attorney and her client; it does not protect facts. See U.S., ex rel. Locey v. Drew Med. Inc., 2009 WL 88481, at *1 (M.D. Fla. Jan. 12, 2009); Upjohn Co. v. U.S., 449 U.S. 383, 395 (1981). Relators counsel posed four questions that Adams refused to answer based on a privilege instruction that did not seek attorney-client communications, but rather sought only her state of mind (see Appendix B). The Court should compel Adams to respond to each of these questions. 18

20 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 20 of 30 III. All communications between DaVita witnesses and counsel and any work product relating to Snappy and Venofer dosing are not privileged A. The crime-fraud exception destroys privilege Beyond Adams conversations with counsel regarding Snappy and Venofer dosing, DaVita should be ordered to produce other documents and information that are no longer privileged, whether by virtue of the crime-fraud privilege or waiver. This includes testimony from other witnesses that Relators will depose during the re-opened discovery period, including Shaun Collard who will be deposed on November 21st. 5 The witness tampering demonstrated by Adams testimony was part of a fraudulent defense scheme that applied to all DaVita witnesses with the intent to hide the truth in discovery from Relators and the Court. See Court s Aug. 12, 2014 Order (finding that DaVita witnesses would change their testimony to hue to Tetley s false testimony ). Thus these communications are all interrelated and 5 Relators will be asking Collard questions about his conversations with counsel regarding Snappy and Venofer dosing and his changed testimony in his errata sheet; Relators anticipate that DaVita will lodge objections to those questions. Relators will supplement this motion with a list of specific questions and documents they seek to compel on the same grounds argued here. Relators are simultaneously filing a motion for expedited consideration of this motion so that witness depositions that begin on December 16th may proceed without objections to privilege on communications with DaVita attorneys regarding DaVita s iron maintenance dosing practices. If the Court does not rule prior to the later depositions ordering that the privilege no longer applies, Relators anticipate further supplementation of this motion. 19

21 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 21 of 30 should be compelled together. In re Grand Jury Investigation, 842 F.2d at 1227 (any legal assistance received relating to fraud must be treated as related to fraud). The same counsel (Ben Fox) that tampered with the testimony of Sharon Adams and suborned her perjury prepared Richard Tetley for 45 hours before his false deposition testimony. Tetley Dep. (Ex. 7) at 28:3-29:18, 185: Jim Hearty (DaVita in-house counsel) was also present during that preparation. Id. at 28:3-29:18. One or both of those same attorneys were present (along with other attorneys) at the prior marathon deposition preparation sessions for all witnesses who will provide testimony during the re-opened discovery period. 6 Throughout their briefing and oral argument in defense of Relators motion for sanctions for false testimony during the initial discovery period, Defendants argued that the misrepresentations were the result of the mistaken recollection of a single witness Rich Tetley. See, e.g., Defs Resp. Br. to Mtn for Sanctions (Doc. 590) at 2 ( Relators motion is predicated entirely on the mistaken recollection of a witness. ); July 1, 2014 Hr g Tr. at 23:7-9 ( What actually happened here was that one witness, the 30(b)(6) witness, a witness who should not have made a 6 Goykhman Nov Dep. (Ex. 8) at 10:9-12:10 (Fox and Hearty; 25 total hours); Goykhman May 2013 Dep. (Ex. 9) at 246:25-247:17, 302:5-304:13 (Hearty; hours total); Moulds Dep. (Ex. 10) at 19:14-20:9 (Fox; hours total); Phillip Dep. (Ex. 11) at 92:7-93:8 (Fox; 12 hours total); Marino Dep. (Ex. 12) at 91:18-92:11 (Fox; 14 hours total). 20

22 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 22 of 30 mistake, made a mistake, Mr. Tetley. ). Nothing could be further from the truth. As Relators argued, the false testimony was a much broader plan and DaVita intentionally tampered with witnesses to hide the truth about DaVita s corporate scheme to intentionally create unnecessary waste of Venofer through Snappy. The Count found that at best, Tetley s initial false testimony led the defendants and their counsel astray during the subsequent months of discovery. At worst, the defendants purposely manipulated the evidence and witnesses to hide the truth from the Relators and the Court. Doc. 922 at 6. The Court found on August 12 that the Court does not believe that the evidence the Relators have submitted unequivocally shows that the defendants committed this more nefarious level of discovery practice. Id. at 6 (emphasis in original). Now, Relators have done so: Adams testified that she does not even know who Rich Tetley is, much less ever talked to him about Snappy or iron dosing or reviewed his testimony on those subjects. Id. at 37:6-16; 38:15-23; 39: Thus, it simply cannot be that Tetley led her astray. Instead, she was purposefully manipulated to hide the truth from Relators and the Court by DaVita attorneys. Through tears, Sharon Adams testified that she welcomes the opportunity to share her story with the Court so that she will finally have a chance to tell the whole truth and make clear why she did what she did and who made her do it. It is illogical to 21

23 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 23 of 30 assume that the other witnesses who testified falsely or changed their testimony did not succumb to similar pressure from DaVita. B. DaVita waived privilege Relators now have clear evidence that the false Snappy testimony went wellbeyond Tetley all the way to a clinical service specialist a state a way who had never heard of him. Id. at 37:6-16; 38:15-23; 39: Defendants argued their good faith belief in Tetley and how Tetley s mistake alone was the reason for the false testimony. Those words are now proven wrong and given that Defendants were able to defend against harsher sanctions by discussing their good faith belief in Tetley, Relators should now be allowed to pierce the communications and work product upon which that good faith belief was supposedly based. The general rule is that when a party intentionally discloses attorney-client privileged information, the party waives privilege as to all other information on the same subject matter. The purpose of the subject-matter waiver doctrine is to prevent a party from using the advice he received as both a sword, by waiving privilege to favorable advice, and a shield, by asserting privilege to unfavorable advice. Shukh v. Seagate Technology, LLC, 848 F. Supp. 2d 987, 990 (D. Minn. 2011) (internal citations omitted) (finding subject-matter waiver under Rule 502). To date, Defendants have been allowed to brandish a sword and cower behind a 22

24 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 24 of 30 shield. Those days should be over. [A] defendant may not use the privilege to prejudice his opponent s case or to disclose some selected communications for self-serving purposes. Cox, 17 F.3d at 1417 (internal citations omitted). The law does not allow Defendants to discuss what occurred during certain communications on the facts and circumstances of changed testimony regarding Snappy s role and functionality with respect to maintenance doses of Venofer, but continue to cling to the attorney-client privilege regarding other communications and information on that same subject matter. During the sanctions hearing, Mickey Mixson, on behalf of DaVita, asked aloud, So, what is he [Mr. Wood] complaining about? He is complaining about [Collard s] erroneous errata sheet. In response, the Court asked, [w]ell, if the errata sheet was erroneous, why was the errata sheet created? To which Mixson stated, [b]ecause we believed Mr. Tetley. We had no reason to doubt Mr. Tetley until Mr. Tetley told us he was mistaken. July 2, 2014 Hr g Tr. at 25:9-26:4 (emphasis supplied). Another of DaVita s attorneys, Grant Harvey confirmed that Mixson was referring to DaVita and its lawyers when he said we above: Mr. Collard talked to Mr. Tetley before he changed his errata. Mr. Tetley, in his declaration, makes clear he talked to witnesses. Among the witnesses that he talked to was Mr. Collard. So with respect to the accusation that somehow lawyers were involved with witness tampering is just beyond the pale. It is exactly what Mr. Mixson said that is this company and the lawyers have faith and believed and understood in the IT man, Mr. 23

25 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 25 of 30 Tetley, as did the employees. So I want to make that record clear. Thank you for the opportunity. Id. at 30:17-31:1 (emphasis supplied). Yet, Defendants (and their counsel) had numerous reasons to doubt Tetley s testimony before he confessed in October 2013 to his false testimony, including the January 2013 testimony of Sharon Adams, the February 2013 testimony of Marilyn Moulds, and the July 2013 testimony of Collard. Thus, Defendants used otherwise protected information to defend against Relators motion for sanctions. Defendants cannot use information that is grounded in the attorney-client privilege to claim no wrongdoing, while denying Relators access to information that may show they did engage in wrongdoing (ie. that DaVita s and its counsels claimed subjective beliefs in Tetley did not exist or were grossly unreasonable). Further, DaVita has recently stated twice in pleadings that nothing untoward occurred during or after the depositions of Tetley, Goykhman, Adams, or Collard. Doc.s 978 at 2 and 984 at 8-9. Defendants should not be allowed argue this self-serving assertion now proven false with regard to Adams without allowing Relators to fully explore the evidence that might show the same untrue. The law does not allow Defendants to throw such unfair and untrue punches while tying Relators hands behind their backs and preventing them from striking back. 24

26 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 26 of 30 Indeed, DaVita argued that Relators had not shown evidence of bad faith because there is no evidence of perjury, no affidavit from witnesses that say I helped this man defraud the court, no confession. July 1, 2014 Hr g Tr.at 21: DaVita can never make that argument again. CONCLUSION Our judicial system does not exist as a forum for parties and witnesses to lie, cheat, and steal. DaVita has lied and cheated in an effort to hide the truth about its fraudulent theft of hundreds of millions of dollars from United States taxpayers. In the process, DaVita has abused the attorney-client privilege to the point that it should lose that sacred privilege. Perjury has occurred. Subornation of perjury has occurred. Witness tampering has occurred. These crimes add up to an obstruction of justice. Now it is time for justice to be dispensed to the perpetrators and a loud and clear message to be sent to other litigants and their counsel no one is above the law and misconduct at this level will be met with the harshest of sanctions. Respectfully submitted this 20th day of November L. LIN WOOD, P.C. /s/ L. Lin Wood L. Lin Wood lwood@linwoodlaw.com State Bar No West Peachtree Street WILBANKS & BRIDGES, LLP Marlan B. Wilbanks mbw@wilbanks-bridgeslaw.com State Bar No Ty M. Bridges tmb@wilbanks-bridgeslaw.com State Bar No

27 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 27 of 30 Suite 2400 Atlanta, Georgia (fax) S.G. EVANS LAW, LLC Stacey Godfrey Evans State Bar No West Peachtree Street Suite 2400 Atlanta, Georgia (fax) Monarch Plaza 3414 Peachtree Road NE Suite 1075 Atlanta, Georgia (fax) KREVOLIN & HORST, LLC Jeffrey D. Horst Georgia Bar No Zahra S. Karinshak Georgia Bar No Christopher E. Adams Georgia Bar No West Peachtree Street Suite 3250 Atlanta, Georgia (404) (404) (fax) 26

28 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 28 of 30 CERTIFICATION UNDER L.R. 7.1D. Pursuant to Northern District of Georgia Civil Local Rule 7.1D, the undersigned counsel certifies that this RELATORS MOTION TO COMPEL TESTIMONY AND DOCUMENTS BASED ON THE CRIME-FRAUD EXCEPTION TO THE ATTORNEY-CLIENT PRIVILEGE AND BRIEF IN SUPPORT is a computer document and was prepared in Times New Roman 14 point font, as mandated in Local Rule 5.1C. This 20th day of November /s/ L. Lin Wood L. Lin Wood

29 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 29 of 30 CERTIFICATE OF CONFERENCE Pursuant to Fed. R. Civ. P. 37(a)(1) and L.R. 37.1(A)(1), this is to certify that counsel for movant has in good faith conferred with counsel for Defendants in an attempt to resolve this dispute without court action. No agreement could be reached, necessitating the submission of this motion to the Court. This 20th day of November /s/ L. Lin Wood L. Lin Wood

30 Case 1:07-cv CAP Document 1001 Filed 11/20/14 Page 30 of 30 CERTIFICATE OF SERVICE This is to certify that I have this day electronically filed the foregoing RELATORS MOTION TO COMPEL TESTIMONY AND DOCUMENTS BASED ON THE CRIME-FRAUD EXCEPTION TO THE ATTORNEY- CLIENT PRIVILEGE AND BRIEF IN SUPPORT via the CM/ECF system, which will automatically send notification to the attorneys of record. This 20th day of November /s/ L. Lin Wood L. Lin Wood