U.S. v. Sabit (Summary)

FALSE CLAIMS ACT/QUI TAM CASES

U.S. v. Sabit, No. 14–MC–50155 (E.D. Mich. Apr. 1, 2014)

The U.S. District Court for the Eastern District of Michigan largely granted in part and denied in part a United States motion to enforce its civil investigation demand (“CID”).

The defendant, a neurosurgeon, was under investigation for allegedly receiving kickbacks for performing unnecessary implants of spinal devices produced by Reliance Medical Systems.  The government requested (1) medical records of defendant’s patients who received spinal implants, (2) audio recordings of the California Medical Board’s interviews with the defendant, and (3) all e-mail communications between the defendant and Reliance from 2009-2014, including a specific letter from the company terminating its relationship with the defendant.  The defendant argued that his Fifth Amendment right against self-incrimination exempted him from complying with the CID.

The court held that when production of documents requires a defendant to make considerable use of his mental capacities in identifying the documents sought in discovery, that production is testimonial and protected by the Fifth Amendment.  In contrast, when the government has sufficient knowledge concerning the existence and location of specific documents so as to describe them with reasonable particularity, production is tantamount to surrender and is not testimonial.

In granting the motion to enforce, the court ruled that the government’s knowledge of the (1) names of defendant’s patients, (2) existence and location of the audio recordings and (3) existence of the termination letter was sufficient to obligate defendant to surrender the records, recordings and letter.  In denying the motion, the court held that the defendant’s production of the 2009-2014 e-mails was tantamount to testimony material.  The government failed to identify the nature of the e-mails, lacked reliable information concerning the number of e-mails in existence and only identified the existence of a single e-mail between the defendant and the company.  As a result, the defendant would have had to sort through his e-mails and identify the relationships between various individuals and the company.  Accordingly, production would have amounted to forcing the defendant to answer written or oral questions about the documents, a result at odds with the Fifth Amendment and in violation of the defendant’s right against self-incrimination.