Third Circuit denies relator interlocutory review of order compelling discovery of disclosure statement

by Ben Vernia | July 29th, 2010

In United States ex rel. Gohil v. Aventis Pharm., Inc., the Third Circuit on July 23 declined to hear a whistleblower’s interlocutory appeal of a district court order requiring him to turn over his qui tam disclosure statement. The Eastern District of Pennsylvania had ordered discovery of the statement in order to determine whether the public disclosure bar of the False Claims Act deprived it of subject matter jurisdiction. (The relator had filed, litigated and settled a state retaliation claim with the company in between filing his first and second amended qui tam complaints.) On interlocutory appeal from this order, the relator originally argued that the collateral order doctrine provided a basis for his appeal, but the Court noted that the Supreme Court foreclosed that option in its decision in Mohawk Indus., Inc. v. Carpenter, 130 S.Ct. 599, 609 (2009). The relator then asked the Court to hear his case under its mandamus jurisdiction, but the Third Circuit refused.

Holding the case up to the high standard required for the “drastic and extraordinary” remedy of mandamus, the Court wrote:

Even if we assume arguendo that it is “clear and indisputable” that parts of the Disclosure Statements are protected, as Gohil claims, we nevertheless remain far from convinced that there is no other adequate means for him to obtain relief, or that the writ is an appropriate remedy in this case. See In re Pressman-Gutman, 459 F.3d at 399. Gohil’s only argument to the contrary is that Aventis will gain insight into his litigation strategy from the documents he would be forced to produce. Appellant’s Suppl. Br. at 5. We are not convinced. The documents or statements that Gohil argues require redaction as “core work-product” in the sealed appendices by no means reveal a complete litigation strategy. For example, while words like “key” or “very important” are used to describe potential witnesses, the labels are not explained in detail. That this “order adverse to … privilege may … harm [Gohil] in ways that are only imperfectly reparable” is neither a basis for collateral appeal of this order nor the issuance of a writ. Mohawk, 130 S.Ct. at 608 (internal quotation marks omitted).

In a footnote, the Court concluded that the 2010 amendment to the public disclosure bar, in the Patient Protection and Affordable Care Act, Pub. L. 111-148, 124 Stat. 119, was not retroactive, and so it interpreted the prior version of the bar.

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