The United States of America and The State of Florida ex rel. Angela Ruckh, Plaintiff, v. CMC II, LLC, et al., Defendants Case No. 8:11–cv–1303–T–23TBM Signed May 19, 2015 Counsel Bradley E. Oppenheimer, Derek T. Ho, James M. Webster, III, Jeffrey A. Love, Joseph S. Hall, Rebecca A. Beynon, Silvija A. Strikis, Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC, Washington, DC, Charles F. Kester, Delaney Kester LLP, Calabasas, CA, Kevin J. Darken, The Barry A. Cohen Legal Team, Tampa, FL, Royston Delaney, Royston Delaney, Esq., Boston, MA, for Plaintiff. Carroll Skehan, Catherine E. Creely, Robert S. Salcido, Stanley E. Woodward, Terence J. Lynam, Akin, Gump, Strauss, Hauer & Feld, LLP, Washington, DC, Scott R. Lilly, Florida Health Law Center, Tina Elizabeth Dunsford, LDL Firm, PLLC, Tampa, FL, for Defendants. McCoun III, Thomas B., United States Magistrate Judge ORDER *1 THIS MATTER is before the Court on Defendants' Motion for Limited Protective Order and the Appointment of an E–Discovery Special Master (Doc. 176) and Relator's response (Doc. 186), and Relator's Motion to Enforce This Court's Discovery Orders and for Sanctions (Doc. 187) and Defendants' response (Doc. 198). Oral arguments were held on April 21, 2015. As explained below, Defendants' Motion is DENIED and Relator's Motion is GRANTED in part. I. The instant disputes are over Defendants' production or lack of production of email communications which Relator believes will demonstrate Defendants' knowledge of submitting false claims. A procedural overview of pertinent events is useful. Angela Ruckh, a qui tam relator (Relator), filed this lawsuit on June 10, 2011, on her own behalf, and on behalf of the United States of America and the State of Florida, alleging that Defendants engaged in government entitlement program fraud in violation of the False Claims Act, 31 U.S.C. § 3729, et seq. and the Florida False Claims Act, Fla. Stat. § 68.082, et seq. (Doc. 1). The United States declined to intervene on April 10, 2012. (Doc. 10). The State of Florida filed its notice of non-intervention on July 8, 2014. (Doc. 121). Relator amended her complaint on August 2, 2012. (Doc. 16). Defendants moved to dismiss the amended complaint. (Docs. 19, 20). Thereafter, Defendants requested that discovery be stayed (Doc. 37), and Relator moved to compel production responsive to her First Set of Document Requests (Doc. 43). On March 5, 2013, the district judge granted Defendants' motions to dismiss and granted in part Defendants' request to stay discovery. Discovery was stayed with two exceptions—Defendants were ordered to answer Relator's request regarding Defendants' corporate structure and Relator was permitted to seek discovery from each Defendant as to a single resident. (Doc. 48). The district judge also held a conference call with counsel, of which he later recounted: Anticipating gamesmanship from one or both sides of this qui tam action, I advised each party—at the risk of sanction—to avoid discovery gamesmanship and abuse. I received the solemn assurances of counsel. (Doc. 71 at 2). On April 25, 2013, Relator filed a motion to “enforce” the district judge's Order and for sanctions, urging, among other things, that Defendants produced only limited and heavily redacted documents in response to her request pertaining to their corporate structure and refused to produce any documents identifying their corporate structure from 2011 to present. (Doc. 60). The district judge granted Relator's motion, ordered Defendants to produce unredacted copies of any documents showing corporate structure and the changes in corporate structure to the present, and awarded Relator fees and costs incurred in seeking to enforce the prior Order. (Doc. 71). Relator filed a second amended complaint on April 30, 2013. (R. 63). A Revised Second Amended Complaint (RSAC), which is the operative complaint, was filed on June 3, 2013.[1] (Doc. 75). Defendants again moved to dismiss. (Docs. 82-85). The motions were denied and the discovery stay was lifted on January 14, 2014. (Doc. 92). The RSAC contains the six following claims: *2 Counts I and IV: Relator alleges that Defendants presented, or caused to be presented, false or fraudulent claims to the United States Centers for Medicare and Medicaid Services (CMS), the Florida Agency for Health Care Administration (AHCA), other government health programs, and Medicare Advantage Plans (MA Plans), and that Defendants knew or were deliberately ignorant or reckless in not knowing that these claims were false, pursuant to 31 U.S.C. § 3729(a)(1)(A), and Fla. Stat. § 68.082(2)(a); Counts II and V: Relator alleges that (1) Defendants made, used, or caused to be made or used false or fraudulent records or statements, including Minimum Data Set (MDS) Assessments and patient records containing such MDS Assessments and other falsified information, (2) these false records or statements were material to false or fraudulent claims made to CMS and its agents, AHCA and its agents, other government health programs, and MA Plans, and (3) Defendants knew, or were deliberately ignorant or reckless in not knowing, that these records or statements were false, pursuant to 31 U.S.C. § 3729(a)(1)(B), and Fla. Stat. § 68.082(2)(b); and Counts III and VI: Relator alleges that (1) Defendants made, used, or caused to be made or used false or fraudulent records or statements, including MDS Assessments and other falsified information, (2) these false records or statements were material to Defendants' obligation to pay or transmit money or property to CMS and its agents, AHCA and its agents, and other government health programs—including Defendants' obligation to repay money or property they had previously improperly received from CMS, AHCA, or other government health programs, (3) Defendants knew, or were deliberately ignorant or reckless in not knowing, that these records or statements were false, (4) Defendants concealed or improperly avoided their obligation to pay or transmit money or property to CMS and AHCA and their agents, and (5) Defendants knew, or were deliberately ignorant or reckless in not knowing, that their conduct concealed or improperly avoided their obligation to pay or transmit money or property to CMS and AHCA and their agents, or other government health programs, pursuant to 31 U.S.C. § 3729(a)(1)(G), and Fla. Stat. § 68.082(2)(g). RSAC (Doc. 75 at 74–77). On January 23, 2014, the Relator served her Third Set of Requests for Production. (Doc. 143–1). Among other documents, Relator sought the documents Defendants produced in response to the subpoenas and civil investigative demands issued by the Department of Justice, the Florida Attorney General, and any government health agency related to the allegations in the RSAC (Request No. 1–2); documents or communications related to upcoding—overstating the medical needs and care provided to their residents to obtain higher rates of Medicare reimbursement—at any La Vie facility[2] (Request No. 5); documents or communications related to Defendants' failure to prepare proper care plans for any resident at any La Vie facility (Request No. 6); documents or communications related to establishment and implementation of Medicare and Medicaid “budgets” or target reimbursement rates at any La Vie facility (Request No. 9); and cost reports each La Vie facility submitted to the government each year during the relevant period (Request No. 10).[3] As urged by Relator, a large number of documents she sought were company emails or communications which would support her allegations that Defendants knew of, or were reckless in not knowing of, the false claims submitted by their skilled nursing facilities. Defendants served their response to the Third Set of Requests for Production on February 21, 2014, lodging numerous and various objections and reservations. (Doc. 143–2). In short, Defendants objected to every Request in some fashion, although they agreed to some limited production. Pertinent to the instant disputes, Defendants maintained that (1) the relevant temporal scope was January through May 2011, the five-month period in which Relator worked at two of their facilities, and (2) discovery was limited to only those two facilities and to the patients listed in the RSAC, and not all of Defendants' Florida facilities or patients. Id. It appears that Defendants subsequently made eleven supplemental productions responsive to Relator's Third Set of Requests for Production between May 27, 2014, and September 25, 2014. (Doc. 145–12). *3 On January 27, 2014, Relator had issued subpoenas duces tecum to four non-parties: Warburg Pincus Equity Partners, LP (Warburg); Formation Capital, LLC and Formation Development Group (Formation); American Health Tech, Inc. (AHT); and MedBest, Inc. (MedBest). See (Doc. 102). Defendants and Warburg moved to quash the non-parties subpoenas, or, in the alternative, requested a protective order. (Docs. 101, 104). In May 2014, the undersigned granted the motions in part but specifically rejected the limitations sought by Defendants, i.e., that production should come from only the two facilities in Florida at which Relator worked and that the temporal scope should be the five-month period in which Relator worked at the facilities. MedBest and AHT were ordered to produce documents from La Vie's operations in Florida for the period from “2010 to the present.” (Doc. 116 at 5, n.4–5). On July 10, 2014, the undersigned held a preliminary pretrial conference to address the parties' scheduling and discovery disputes. At that time, counsel essentially agreed that no emails responsive to Relator's outstanding requests had been produced. Additionally, Defendants advised that one year was a conservative estimate on the amount of time needed to complete ESI production given the enlarged scope of discovery (i.e., not just the two facilities at which Relator worked). See (Doc. 137 at 9–15, 19–24, 32); see also (Doc. 212 at 7). The scope of discovery was addressed generally. The undersigned confirmed again his limitation to a geographical scope encompassing was all of Defendants' facilities in Florida. See id. at 10–11, 22. The undersigned issued a Report on the preliminary pretrial conference recommending, among other things, a discovery deadline of May 29, 2015. (Doc. 124). Defendants did not object, and the district judge adopted the deadlines. (Doc. 131). On September 30, 2014, Relator filed a motion to compel responses to her Third Set of Requests for Production. (Doc. 143). Therein, Relator complained that Defendants' view of the temporal and geographical scopes was too limited given the allegations in the RSAC and she took issue with Defendants' responses to Request Nos. 5, 6, and 9, particularly as related to electronic discovery. (Doc. 143 at 14–17). Defendants opposed the motion and moved for protection. (Doc. 145). Relator responded to Defendants' request for protection and again moved to compel. (Doc. 148). A hearing on the motions was held on November 7, 2014. Among other matters, defense counsel conceded that the search for emails had not been undertaken in full and only 97 emails had been produced.[4] (Doc. 202 at 38). While claiming that they were acting in good faith regarding the email production, Defendants continued to object to the scope of discovery and conceded that they had not produced emails even under the scope of relevance they deemed relevant. As then stated by the undersigned, Defendants' explanation for their lack of email production “comes across, frankly, as just stonewalling.” See (Doc. 202 at 33–42). On November 14, 2014, the undersigned granted Relator's motion in part, finding that: On the bases of Relator's allegations that the alleged fraud was driven by regional officers and management level employees at the companies managing the facilities, ... discovery in this action may be directed to the activities at all the LaVie facilities within Florida and to any and all residents at such facilities for whom Defendants were billing for Medicare, TRICARE, and/or Medicaid reimbursement as such discovery relates to the allegedly false statements to state and federal authorities concerning residents' care plans, medical conditions, and their care and treatment at each facility; the establishment of Medicare, TRICARE and Medicaid budgets and the manner and means employed by Defendants to meet or exceed the budgets; the allegations of routine upcoding of resident's MDS assessments and/or RUG levels and any other means employed to fraudulently maximize Medicare, TRICARE and Medicaid reimbursements at these facilities, and all efforts taken to facilitate and conceal the scheme from state and federal authorities.... [T]he appropriate temporal scope of discovery should be January 1, 2008, through January 25, 2012. *4 (Doc. 151 at 5-6). In light of these findings, Relator's motion to compel was granted as to Request Nos. 5, 6, 9, and 10. Defendants were ordered to produce or to otherwise make available, within twenty-eight days, the following: documents and communications, in whatever format, including patient populations for each facility and identification of patients at each facility, including dates of care, treatment records, [and] method of payments for care; care plans and MDS assessments for the same; all manner of billing and coding information for the pertinent residents; budgets, documents reflecting targeted reimbursement rates, and addressing any practice, policy and/or program for enhancing Medicare, Medicaid and/or TRICARE reimbursements, as well as scorecards or audits reflecting on the same; and annual cost reports. (Doc. 151 at 6). Defendants also were ordered to make responsive emails available on a rolling production basis, within forty-five (45) days, in the format requested by Relator unless such could not be accomplished or a different format was otherwise agreed to. Id. On November 28, 2014, after waiting the full fourteen (14) days to object, Defendants lodged objections to the Order issued on November 14, 2014. Defendants argued that the Order was “clearly erroneous and contrary to law in that it permits Relator discovery as to all (fifty-three) 53 of Defendants' skilled nursing facilities.” Thus, “because the entirety of the evidence shows that there is no indication of any fraud whatsoever occurring outside of the [2] specific facilities” at which Relator worked, and “to the extent it permits discovery beyond the [2] facilities ... [the Order] ... is contrary to law because Relator's allegations as to such facilities do not satisfy Rule 9(b).” Defendants argued further that “28 days and 45 days, respectfully, is wholly insufficient time to accomplish the completion of the discovery ordered in the Magistrate's Order.” Thus, Defendants requested that the Order “be further modified to provide more time for the Defendants to complete production.” (Doc. 156 at 15). At the same time, Defendants also moved to stay the deadlines in the Order pending the district judge's review of the Order and objections. (Doc. 157 at 13). The district judge granted the motion but only to the extent that the discovery deadline was extended from December 12, 2014, to December 19, 2014. (Doc. 162). On December 19, 2014, Defendants filed a “Notice of Substantial Compliance with Initial Production Deadline of Magistrate's Orders.” (Doc. 165). Defendants estimated “they have produced approximately ninety percent (90%) of the materials that could be deemed responsive for purposes” of the first portion of production required by the Order of November 14, 2014. (Doc. 165 at 8). As for the email production ordered, Defendants advised steps had been taken to comply but no additional emails had been produced. (Doc. 165 at 6–7). Relator disputed that substantial compliance occurred. (Doc. 166). On December 28, 2014, the district judge overruled Defendants' objections to the November 14, 2014, Order and directed the parties to submit an amended case management report. (Doc. 164). On December 29, 2014, the parties filed their second amended case management report (CMR). (Doc. 167). They proposed the following deadlines with regard to fact discovery: *5 (1) By February 6, 2015, Relator will provide to Defendants a list of patients for whom Relator requests the production of the patients' files and medical records. (2) By February 27, 2015, Defendants shall produce the patient files and medical records for those patients identified by Relator in subparagraph (1), provided that the number of patients identified does not exceed 300, and that the sample is taken from a significant number of Defendants' Florida facilities. In the event that either of these conditions is not met, the parties shall confer to reach an agreed-upon deadline in March 2015 for production of the medical records for the patients identified by Relator. In all events, Defendants shall produce the medical records promptly, as they discover them, and on a rolling basis. (3) By March 1, 2015, Defendants shall produce all responsive emails returned by the parties' agreed-upon search protocol (attached as Exhibit A). (4) The parties shall produce all other responsive documents promptly, as they discover it, and on a rolling basis. (5) Fact discovery shall close on July 30, 2015. (Doc. 167 at 2–3). On January 28, 2015, the district judge entered an amended case management and scheduling order, directing the parties to conform to the [discovery] deadlines proposed in their second amended CMR. (Doc. 168). On March 1, 2015, the Defendants did not meet the parties' agreed upon deadline for Defendants to produce all responsive emails on the parties' agreed search protocol. The instant motions followed. II. By their Motion for Limited Protective Order and the Appointment of an E-Discovery Special Master (Doc. 176), Defendants seek an Order directing the parties to craft a targeted keyword search term protocol and related technology assisted review protocol, and appointing an e-discovery special master to oversee the same. Specifically, Defendants propose “that each party retain, at their own expense, an e-discovery expert[5] with technological expertise in developing keyword search terms protocols for large volume discovery, and convening an in-person meeting at the Credence facility in Ft. Lauderdale, Florida, to engage in real time quality-assurance testing of keyword search terms,” with the e-discovery special master present to resolve any disputes. (Doc. 176). In response, Relator urges the Court to deny Defendants' Motion on the following grounds: (1) Defendants did not confer with her regarding the relief sought despite multiple opportunities to do so; (2) the Motion is untimely because Defendants did not seek to modify the scope of their email production until after the March 1, 2015, deadline for complete production, and Defendants have not shown good cause for their late filing; (3) the Motion tacitly and improperly seeks reconsideration of the Court's prior Orders on the scope of discovery; and (4) the Motion fails on the merits. Relator also requests that Defendants be ordered to produce all documents located by applying the agreed-upon search term protocol appended to the parties' second amended CMR. (Doc. 186 at 15–21). *6 By her Motion to Enforce This Court's Discovery Orders and for Sanctions (Doc. 187), Relator seeks an Order sanctioning Defendants for repeatedly failing to produce discovery, most notably emails, relevant to her allegations that Defendants knew or were reckless in not knowing of the false claims submitted by their skilled nursing facilities across Florida and comply fully with prior Orders directing the same. Relator urges that throughout the litigation, Defendants have obstructed her efforts to discover evidence central to her claims, in particular email communications, and she has been trying to obtain the same for over a year. To date, Defendants have produced only a small fraction of the emails identified by the parties' agreed-to search terms. Even after the Court permitted and adopted a new schedule for completion of discovery, wherein Defendants agreed to produce all emails by March 1, 2015, no emails were produced until February 27, 2015, when about 3700 documents of email data (about 1000 emails) were produced. Relator requests that the Court sanction Defendants by ruling that the knowledge element of her claims will be taken as established for purposes of this case and awarding her costs and attorney's fees. Relator also requests that the Court order Defendants to produce all documents located by applying the agreed-upon search term protocol appended to the parties' second amended CMR within 10 days of the Court's Order. (Doc. 187). Defendants counter that the relief sought, which is tantamount to a default judgment against Defendants on the element of knowledge, is unwarranted and unsupported by evidence of willful or bad faith conduct on Defendants' part or resulting prejudice to Relator. Defendants note that the November 14, 2014, Order expressly directed that counsel were to cooperate and agree on a word search or other protocol to review the emails in a timely manner and cautioned that if Defendants failed to meet the email deadline, the Court would consider Relator's proposal that she receive the entirety of the emails for her review subject to a confidentiality agreement and clawback provision. Defendants note that when its vendor undertook the word searches proposed by Relator, they received more than 4.8 million hits for email and attachment documents. Despite Defendants' efforts to further address this, Relator has failed to meaningfully meet and confer on a methodology to further reduce the “massive number of false-positive hits” resulting from an overly broad key word search. In short, Defendants urge that despite their good faith efforts,[6]compliance under the current schedule is impossible. They urge that the blame for the production delays rests equally upon Relator's counsel who have refused to engage in additional meaningful discussions. As a matter of law, they urge that Relator cannot establish the necessary willful or bad faith failure to comply with the Court's November Order to justify the extreme sanction here sought. Moreover, apart from the email production, Defendants urge they have substantially complied with that Order. They urge that no sanctions are in order, but if they are, lessor sanctions are required. That said, Defendants suggest that the proposed production of all the emails subject to an involuntary clawback is unfair to Defendants because such production would include vast production of unreviewed emails that are wholly irrelevant to any matter at issue and thousands of privileged or personal documents with no way to police the ultimate recovery or protection of the same. As a lessor sanction, Defendants suggest that the parties be ordered to participate in a “quick look” or “quick view” sessions as contemplated by the federal rules. Such a process is more practical and would better serve the Court and the parties. (Doc. 198). A hearing on these matters was conducted on April 21, 2015. According to Relator's counsel, the email production to date was approximately 5,000 emails plus attachments—approximately 104 emails plus attachments were produced in August 2014; just under 1,000 emails plus attachments were produced on February 27, 2015; 765 emails plus attachments were produced on April 13, 2015; and 3,100 emails plus attachments were produced on April 20, 2015, the day before the hearing. (Doc. 212 at 6–7). Counsel for Defendants indicated that the searches on the seven terabytes of data, within which the email search would be conducted, began the first week of January 2015. (Doc. 212 at 22). While outlining the efforts being made to produce emails, defense counsel urges that Relator's counsel has been less than cooperative in furthering the process. In short, Defendants contend they have acted in good-faith but nonetheless missed the March 1, 2015, deadline for email production. They urge that production by that date, or anytime in the near future, was and is impossible. III. A. *7 Federal Rule of Civil Procedure 37 authorizes a district court to impose “just” sanctions against a party that violates an order to provide or permit discovery, including an order compelling discovery and an order under Rule 26(f). Fed. R. Civ. P. 37(b)(2)(A). Included in the list of possible sanctions is an order “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims.” Fed. R. Civ. P. 37(b)(2)(A)(I). Additionally, “[i]nstead of or in addition to [such a sanction], the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(c). “Rule 37 sanctions are imposed not only to prevent unfair prejudice to the litigants but also to insure the integrity of the discovery process.” Aztec Steel Co. v. Fla. Steel Corp., 691 F.2d 480, 482 (11th Cir. 1982). A district court has substantial discretion in deciding whether and how to impose sanctions under Rule 37. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997). B. The Federal FCA, among other things, applies to the submission of claims by healthcare providers for payment by Medicare, Medicaid and other federal and state healthcare programs.[7] To establish a cause of action under 31 U.S.C. § 3729(a)(1)(A) of the FCA, a relator must prove: (1) a false or fraudulent claim; (2) which was presented, or caused to be presented, by the defendant to the United States for payment or approval; (3) with the knowledge that the claim was false. United States ex rel. Walker v. R & F Props. of Lake Cnty., Inc., 433 F.3d 1349, 1355 (11th Cir. 2005) (citation omitted). To establish a cause of action under 31 U.S.C. § 3729(a)(1)(B), a relator must prove that: (1) a defendant made a false record or statement for the purpose of getting a false claim paid or approved by the government, and (2) its false record or statement caused the government to actually pay a false claim, either to the defendant or to a third party. Hopper v. Solvay Pharms., Inc., 588 F.3d 1318, 1327 (11th Cir. 2009). To establish a cause of action under 31 U.S.C. § 3129(a)(1)(G), a relator must prove: (1) a false record or statement; (2) defendant's knowledge of the falsity; (3) that defendant made, used, or causes to be made or used a false statement or record; (4) for the purpose to conceal, avoid, or decrease an obligation to pay money to the government; and (5) the materiality of the misrepresentation.[8] United States ex rel. Matheny v. Medco Health Solutions, Inc., 671 F.3d 1217, 1222 (11th Cir. 2012) (citations omitted). This requires the relator to prove that defendants owed a definite and clear “obligation to pay money to the United States at the time of the allegedly false statements.”[9] Id. at 1223; United States v. Aggarwal, No. 6:03–cv–117–Orl–31KRS, 2005 WL 6011259, at *7 (M.D. Fla. Feb. 10, 2005). IV. Upon thorough review of the course of proceedings and consideration of the pleadings and governing authority, I conclude that Relator's Motion should be granted in part and that Defendants' Motion should be denied. On Relator's Motion, I conclude that sanctions are appropriate and necessary in these circumstances. Defendants' pleadings focus almost entirely on their purported good faith efforts to comply with their discovery obligations since the Court's Order of November 14, 2014. However, Defendants' willful non-compliance with their discovery obligations began at least as early as January 2014 upon the lifting of the discovery stay. As revealed by the course of proceedings, Defendants have ignored and avoided Relator's relevant inquiry into their knowledge of the false claim allegations related to upcoding, Care Plans, budgets and other methods allegedly used by Defendants for increasing reimbursement rates at their Florida facilities since at least Relator's Third Request for Production was propounded in January 2014. As noted above, every single Request was met with an objection and/or reservation. As of the hearing on July 10, 2014, not a single email or communication sought under those requests had been produced, not even emails Defendants indicated were not objectionable. Although Defendants contend otherwise, Defendants were on notice as of May 6, 2014, that the scope of discovery was beyond that which they urged, i.e., beyond the two facilities in which Relator worked and for the five-month period in which she worked at the facilities. Defense counsel's later argument that the geographical scope pertained only to the third parties and not to the parties is fatuous. In the May 2014 Order, the undersigned rejected the temporal and geographical scope urged by Defendants and directed production from La Vie's operations in Florida for the period from 2010 to the present. (Doc. 116 at 5, n.4–5). While Defendants are correct that this Order addressed third-party discovery, Defendants could not reasonably surmise that the geographical and temporal scope as related to them would be any less than that to third parties. Defendants' continued argument that they needed only to produce discovery from two facilities and only for the period when Relator worked is now appropriately seen as a cover for no discovery of this sort at all. Thus, not only did Defendants continue to resist their discovery obligations regarding email communications, it is now apparent that they made no real effort whatsoever prior to the November Order to begin to search for responsive communications and emails Even with regard to those emails and documents for which Defendants purportedly had no objection, no good faith effort to search for and reveal the same was timely made. *8 Moreover, after the matter was formally brought to the Court's attention and ruled upon, Defendants continued to stonewall the discovery process. By the November 14, 2014, Order, Defendants were directed to produce documents responsive to certain of Relator's requests as to Defendants' fifty-three facilities in the State of Florida for the period January 1, 2008, through January 25, 2012. More specifically, Defendants were ordered to make available on a rolling production all emails within the scope of the Order, with production to be completed within forty-five days.[10] As set forth above, Defendants wholly failed to comply with that Order, as no additional email production, rolling or otherwise, was made as of the discovery deadline of December 19, 2014, or within forty-five days. Indeed, at the latest hearing, defense counsel conceded that the search process did not begin in earnest until January 2015. Even after the district judge afforded the parties the opportunity to reconfigure the Court's Scheduling Order and even after Defendants agreed to produce by March 1, 2015, “all responsive emails returned by the parties' agreed-upon search protocol,” the Defendants failed to abide by the district judge's Order directing compliance with the parties' agreed upon deadlines (Doc. 167). Indeed, only minimal additional production was (and has been) made. Further, while it is evident that Defendants undoubtedly were well aware of the fact that they could not comply with their agreed upon email production deadline, they waited until after that deadline to seek protection and request the appointment of a special master. Defendants' instant Motion (Doc. 176) can only be viewed as an untimely request to excuse prior willful dilatory conduct and to seek further delay. The Court should not and cannot countenance such litigation conduct. Accordingly, Relator's Motion to Enforce This Court's Discovery Orders and for Sanctions (Doc. 187) is GRANTED in part. The only appropriate inference to draw from Defendants' conduct in this regard is that such matters have been withheld to avoid the disclosure of fraudulent conduct and knowledge of the same by Defendants. Any sanction imposed must address those particular discovery violations—the withholding of email evidence which would reveal Defendants' corporate knowledge and fraudulent intentions under government health programs. Monetary sanctions, previously employed in this action, have done nothing to cure the problem. Defendants continue to object to providing Relator with all the emails received as a result of the agreed word search subject to a claw-back agreement. While I conclude that such an Order is now required given the impending close of discovery, it does nothing to address the dilatory conduct of Defendants or their refusal to comply with their Rule 26 discovery requirements and the Orders of this Court. Thus, I find it necessary and appropriate to sanction Defendants' discovery conduct by imposing a rebuttable presumption of established fact with respect to the knowledge element of each of Relator's claims. That sanction is consistent with and addresses the pertinent discovery information withheld—the requested email production—which could and likely would reveal matters related to Defendants' practices for enhancing Medicare, Medicaid and/or TRICARE reimbursements and also their corporate knowledge and intentions in submitting claims they knew or should have known were false. See English v. 21st Phoenix Corp., 590 F.2d 723, 728 (8th Cir. 1979) (upholding Rule 37 sanctions because the presumption of certain facts did not offend right to due process and could be narrowly tailored to provide information not produced in discovery); see also Card Tech. Corp. v. DataCard Inc., 249 F.R.D. 567, 571–72 (D. Minn. 2008) (concluding that “the judicial admission of certain facts as established in response to a Rule 37(b)(2) motion is not necessarily a severe sanction” ... and recognizing that the willfulness or good faith of a party does not affect the fact that the party failed to comply with a court order). “Knowledge,” for purposes of the FCA, means that a person, with respect to information: “(I) has actual knowledge of the information; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the information.” 31 U.S.C. § 3729(b)(1). A specific intent to defraud is not required. See Urquilla–Diaz v. Kaplan Univ., 780 F.3d 1039, 1058 (11th Cir. 2015). Absent other Order of the Court, Defendants remain free to introduce evidence to rebut the presumption of knowledge. To the extent Defendants contend the presumption is warranted only where evidence of willfulness or bad faith is demonstrated, they are incorrect. In any event, the course of conduct evidenced here is nothing if not willful and in bad faith. *9 Defendants remain fully obligated to produce all relevant emails and related documents under the Court's Orders and Rule 26. Nonetheless, given the approaching discovery deadline of July 30, 2015, Defendants also shall produce to Relator the remainder of the approximate 4.8 million emails not yet reviewed, subject to the right to “clawback” and retrieve documents which are privileged and/or not otherwise appropriate for disclosure in this case. Relator shall use these documents consistent with the Health Insurance Portability and Accountability Act and only in connection with this litigation. The parties shall agree on the appropriate disposition of all such matters produced once this litigation is concluded. This production shall be made within ten (10) days from the date of this Order. Defendants shall continue to produce pertinent email evidence following their own review of the same. Finally, I find it appropriate to further sanction Defendants' failure to timely comply with their discovery obligations and the Orders of this Court by awarding Relator the fees and costs in connection with the prosecution of her Motion. Counsel shall submit an affidavit outlining such within fourteen (14) days from the date of this Order. To the extent not granted, Relator's Motion (Doc. 187) is denied. As for Defendants' Motion for Protection and Appointment of E–Discovery Special Master (Doc. 176), it is the proverbial “day late and a dollar short.” Such proposal may well have been a useful idea twelve months ago, but it portends nothing but delay and additional expense at this late stage of the proceedings. Therefore, the Motion is DENIED. Done and Ordered in Tampa, Florida, this 19th day of May 2015. Footnotes [1] Defendants Genoa Healthcare Consulting, LLC, d/b/a LaVie Care Centers, and Consulate Management Company, LLC, were not named as defendants in the RSAC and were terminated on June 3, 2013. [2] “La Vie” is used broadly and generally by Relator to identify some 53 facilities in Florida over which La Vie Management Services had exercised supervision and control. [3] Except where otherwise indicated in the requests, the Relator sought documents from June 1, 2005 to the present. [4] It appears this is the same batch of emails that Relator's counsel reported receiving in August 2014. See (Doc. 212 at 7). [5] Defendants note they have recently engaged an e-discovery vendor, Credence, Corp. According to an affidavit of its representative, since December 1, 2014, Credence has been reviewing 5.7 terabytes of content received from Defendants. (Doc. 165–6). Defendants urge Relator should be required to obtain a similar expert. [6] Defendants urge again that they have largely complied with the other aspects of the November Order. At the most recent hearing, Relator did not dispute this. Thus, a large amount of patient and other related information has been made available to Relator's counsel. At the hearing on these motions, Relator's counsel indicated that progress had been made on production of patient records and that production was not a part of Relator's sanctions motion. [7] “[T]he Florida False Claims Act mirrors the federal False Claims Act and is subject to the same pleading standard ....” United States v. Space Coast Med. Assocs., L.L.P., ––– F. Supp. 3d ––––, 2015 WL 1456122, at *10, n.4 (M.D. Fla. Feb. 6, 2015) (quotation and citation omitted). [8] This subsection of the FCA “is known as the ‘reverse false claim’ provision of the FCA because liability results from avoiding the payment of money due to the government, as opposed to submitting to the government a false claim.” United States ex rel. Matheny, 671 F.3d at 1222. [9] The FCA defines an “obligation” as “an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based or similar relationship, from statute or regulation, or from the retention of any overpayment.” 31 U.S.C. § 3729(b)(3). [10] While Defendants sought to stay or modify this production deadline pending the district judge's ruling on their objections, the only aspect of the motion that was granted was to extend the discovery deadline from December 12, 2014, to December 19, 2014. (Doc. 162). Notably, the production deadline for the emails was not stayed or modified.