We spent a lot of the final six years opposing the federal government in civil litigation. Certain, just a few of the federal government legal professionals had a sure swagger to them, however in most methods litigating towards them was just like litigating towards non-public events. The federal government employed and collaborated with lots of the identical plaintiffs’ attorneys that we see in mass tort litigation. They served discovery on us; we served discovery on them. They requested each doc underneath the solar, and so they pushed exhausting to get them. Good instances.
There was, nevertheless, one large distinction: The governmental entities on the opposite aspect of the aisle had discoverable paperwork. Tens of millions of them. The plaintiffs that we sometimes see don’t often have a lot of something to supply, making the burdens of discovery astoundingly unbalanced.
That dynamic modified with states, cities, and counties on the opposite aspect. They’d a significant pores and skin the invention sport similar to we did, but a lot of them have been unprepared to deal with it. We are able to solely speculate as to why. Maybe it was a operate of presidency hubris and a sense that the traditional guidelines didn’t apply to them. Possibly they and their outdoors counsel have been simply not accustomed to marshaling and producing paperwork in nice numbers. Or possibly they only underestimated the duty and mishandled it. We noticed numerous pretrial schedules slip as a result of we couldn’t get the paperwork. One plaintiff was dropped from a bellwether trial group as a result of it mishandled doc discovery, and one other misplaced a trial date that the courtroom had stated was agency and wouldn’t transfer.
The lesson was that the foundations apply to each side. That too is the lesson of United States ex rel. Plaintiff v. Novo Nordisk, Inc., No. 23-5459, 2025 U.S. Dist. LEXIS 115618 (W.D. Wash. June 17, 2025), the place a federal district courtroom dominated {that a} prescription drug producer was entitled to an hostile inference jury instruction towards the State of Washington due to the State’s culpable failure to protect and produce paperwork.
The State sued the producer alleging violations of the False Claims Act and Anti-Kickback Statute by way of off-label promotion of a hemophilia remedy. On the heart of the State’s claims was its allegation that the State Medicaid program paid hundreds of thousands of {dollars} for a selected affected person’s remedy. Id. at *2-*3. The State started to analyze in 2007, and a number of State staff reviewed data and took part in a “Hemophilia Working Group” in 2009. Critically, the State Medicaid company submitted a grievance to the Medicaid Fraud Unit in 2014 alleging that “extraordinary quantities” of the product have been being shipped to the affected person, elevating issues about waste or drug diversion. Id. at *3.
That is the purpose of no return, because the State anticipated litigation no later than 2014. The State didn’t, nevertheless, challenge a litigation maintain discover till two years later, and it took no additional motion to protect the Medicaid company’s data underneath March 2020. The State didn’t place a authorized maintain on the mailboxes of some related doc custodians till 2023—9 years after the Medicaid company first made formal claims of fraud. Id. at *4-*5.
To make issues worse, the state didn’t disclose these info to the defendant producer till January 2025—after the shut of discovery.
The order doesn’t say why the State lastly got here clear, however the defendant clearly challenged why the State failed to supply a single doc from any of the document reviewers, the “Hemophilia Working Group,” or the writer of the grievance to the Medicaid Fraud Unit. Primarily based on these failures, the defendant requested an hostile inference towards the state that, if the paperwork have been obtainable, they’d present that the State paid for therapies that have been medically vital. Id.
The district courtroom allowed the hostile curiosity instruction towards the State. The State’s responsibility to protect paperwork arose no later than 2014, when it knew or ought to have identified that paperwork referring to this affected person, this product, and the State investigation have been related to future litigation. Furthermore, it was cheap to deduce that, as a result of the State paid for the affected person’s remedy, not less than a few of the doctor reviewers supported the prescriptions and that misplaced or destroyed data would have proven this. This inference was bolstered by a State investigator’s testimony that she didn’t bear in mind seeing proof that the affected person’s therapies have been pointless.
Lastly, the State was culpable, and the defendant suffered prejudice. The State didn’t take the required steps to protect essential data, and it created privilege logs anticipating litigation as early as 2014, but waited years earlier than following as much as protect data. For its half, the defendant misplaced the chance to make use of the misplaced or destroyed data to show that the remedy for which the State paid was medically vital.
The courtroom may have executed extra, comparable to award attorneys’ charges, which it denied. However nonetheless, it is a helpful reminder that the federal government has to play by the foundations, too. With governmental entities more and more energetic on the civil entrance, we’ll take that.