U.S. ex rel. Simms v. Austin Radiological Assoc. (Summary)

Discovery – Compliance Officer Privilege

U.S. ex rel. Simms v. Austin Radiological Assoc., No. A-10-CV-914-AWA (W.D. Tex. Mar. 18, 2013)

In this false claims case, the United States District Court for the Western District of Texas granted in part and denied in part multiple motions to compel discovery. A former employee brought suit against a radiology group alleging that the company wrongfully retained millions of Medicare/Medicaid overpayments and fraudulently billed the government for bone density scans that were interpreted by technicians instead of physicians. The employee claimed that her investigation led to a retaliatory termination. The relator filed motions to compel discovery and the radiology group filed objections, claiming, in part, that documents maintained by its compliance officer were privileged under state law and not subject to discovery.

The district court held that the compliance officer’s documents were not privileged and were subject to discovery. The court interpreted the state statute regarding compliance officers as not creating a “new” privilege; rather, it found the statute cited by the radiology group merely incorporated protections already in existence, but that these protections did not affect the scope of discovery. Furthermore, the district court rejected the radiology group’s argument that the state’s peer review protection extended to compliance officers, noting that compliance officers are purposefully excluded from discovery protection.