UNITED STATES OF AMERICA, ex rel. STEVEN SCOTT Plaintiff, v. HUMANA INC., Defendant CIVIL ACTION NO 3:18-CV-61-JRW-CHL United States District Court, W.D. Kentucky Signed December 18, 2019 Filed December 19, 2019 Counsel Jeffrey A. McSorley, U.S. Department of Justice—Commerical Litigaion Branch Fraud Section, Washington, DC, Benjamin Seth Schecter, U.S. Attorney Office, Louisville, KY, for Plaintiff United States of America. Andrew C. Shen, Bethan R. Jones, David C. Frederick, James M. Webster, III, Katherine C. Cooper, Thomas G. Schultz, Kellogg Hansen Todd Figel & Frederick, PLLC, Washington, DC, C. Dean Furman, Jr., Furman & Nilsen, PLLC, Louisville, KY, Claire M. Sylvia, Edward Henry Arens, Phillips & Cohen LLP, San Francisco, CA, for Plaintiff Steven Scott. Amanda M. Santella, K. Lee Blalack, II, Reuben C. Goetzl, William T. Buffaloe, David J. Leviss, Kimya Saied, Sara S. Zdeb, Pro Hac Vice, O'Melveny & Myers LLP, Washington, DC, Casey L. Hinkle, Michael P. Abate, Kaplan Johnson Abate & Bird LLP, Louisville, KY, for Defendant. Lindsay, Colin H., United States Magistrate Judge ORDER *1 Before the Court is a motion to compel a complete response to interrogatory No. 9 filed by Relator Steven Scott (“Relator”). (DN 245.) Defendant Humana Inc. (“Defendant” or “Humana”) filed a response to the motion (DN 253), and Relator filed a reply (DN 256). Therefore, the matter is ripe for review. For the reasons set forth below, Relator's motion to compel (DN 245) is GRANTED IN PART. I. LEGAL STANDARD This Court maintains discretion over the scope of discovery. S.S. v. E. Kentucky Univ., 532 F.3d 445, 451 (6th Cir. 2008) (quoting Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981)). Generally speaking, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case....” Fed. R. Civ. P. 26(b)(1). Discovery responses therefore must be “complete and correct.” Fed. R. Civ. P. 26(g)(1)(A). Discovery must be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b). The Court must curtail discovery requests that exceed this scope. Id. Federal Rule of Civil Procedure 37 allows a party to move for an order compelling disclosure or discovery when “a party fails to answer an interrogatory submitted under Rule 33.” Fed. R. Civ. P. 37(a)(3)(iii), (iv). Under Rule 37, an “evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). Objections to interrogatories “must be stated with specificity.” Fed. R. Civ. P. 33(b)(4). When an objection to relevance is raised, the party seeking discovery must demonstrate that the requests are relevant to the claims or defenses in the action. Anderson v. Dillard's, Inc., 251 F.R.D. 307, 309-10 (W.D. Tenn. 2008). If that party demonstrates relevancy, the burden shifts to the party resisting discovery to demonstrate why the information or documents are not discoverable under the Federal Rules. Id. A contention interrogatory seeks to clarify the basis for or scope of an adversary's legal claims. Myers v. Anthem Life Ins. Co., 316 F.R.D. 186, 198 (W.D. Ky. 2016). The general view is that contention interrogatories are a perfectly permissible form of discovery, to which a response ordinarily would be required. Id. While recognizing the impossibility of fully answering contention interrogatories at the outset of discovery, courts rely on compliance with the 26(e) duty to supplement to inform opposing counsel of the allegations they face. U.S. ex rel. Nat. Res. Def. Council v. Lockheed Martin Corp., No. 5:99-CV-170, 2014 WL 6909652, at *4-5 (W.D. Ky. Dec. 8, 2014). “Given the well-recognized problems parties face giving complete answers to contention interrogatories early in the litigation process, litigants are well-advised to anticipate changes.” Id. Additionally, a court may postpone a response to contention interrogatories until discovery is closer to completion. Fed. R. Civ. P. 33(a)(2). *2 Kentucky's “lawyer-client privilege” is set forth in the Kentucky Rules of Evidence. Haney v. Yates, 40 S.W.3d 352, 354 (Ky. 2000); accord. KRE 503. It protects confidential communications made “for the purpose of facilitating the rendition of professional legal services.” KRE 503(b). The attorney-client privilege provides that (1) where legal advice of any kind is sought (2) from a professional legal adviser in his or her capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived. Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir. 1998) (emphasis added). Even in diversity cases, federal courts apply the federal work product doctrine. In re Powerhouse Licensing, LLC, 441 F.3d 467, 473 (6th Cir. 2006). Fed. R. Civ. P. 26(b)(3) protects: (1) a document or tangible thing; (2) prepared in anticipation of litigation or for trial; (3) by or for a party or its representative. In re Professionals Direct Ins. Co., 578 F.3d 432, 438 (6th Cir. 2009) (emphasis added). “Anticipation of litigation” must both subjectively exist when the document is prepared and be objectively reasonable. Id. at 439. “[T]he burden is on the party claiming protection to show that anticipated litigation was the driving force behind the preparation of each requested document.” Id. (internal quotation marks omitted). An ordinary business purpose does not suffice. Id. II. DISCUSSION In Humana's answer to the complaint Humana asserted that “Relator's claims are barred in whole or in part by the absence of damages.” (DN 57, at Page ID #438.) Relator states that on July 30, 2018, he served his Third Set of Interrogatories, consisting of only interrogatory No. 9. (DN 245, at PageID #18113.) Humana served its initial response on August 29, 2018, and its amended response on August 23, 2019. (DN 245, at PageID #18114.) On September 23, 2019, Relator requested a pre-motion telephonic hearing with the Court to discuss Humana's response to interrogatory No. 9. (DN 245, at PageID #18115.) The Court held the telephonic status conference on October 17, 2019 and issued an order permitting Relator to file the instant motion to compel. (DN 242.) Interrogatory No. 9 states, Identify and describe all facts, Documents, calculations, and authority concerning Your purported affirmative defense that “Relator's claims are barred in whole or in part by the absence of damages,” including all facts, Documents, calculations, and authority concerning the amount of damages You contend the Government suffered as a result of the conduct alleged in the Complaint including, but not limited to, Your contention that the Government suffered no damage. (DN 245-3, at PageID # 18147.) Humana raised various objections to the interrogatory, including the attorney-client privilege, the work product doctrine, the common interest doctrine, “or any other applicable privilege, protection or doctrine.” (DN 245-3, at PageID #18149.) Further, Humana objects to the interrogatory “to the extent it prematurely seeks expert testimony in advance of the period set forth under the applicable scheduling order and the Federal Rules of Civil Procedure.” (DN 245-3, at PageID#18149.) Subject to the foregoing objections, Humana responded as follows: *3 Humana contends that even if Relator's allegations in the Complaint are true, the Centers of Medicare and Medicaid Services (“CMS”) suffered no monetary damages because if CMS had rejected Humana's allegedly non-compliant Bids for the Walmart Basic Plan for contract years 2011 through 2017, the rejection of those Bids would have necessarily resulted in CMS making greater monetary payments to Part D sponsors than it actually did make for contract years 2011 through 2017. In other words, CMS would have paid more money under the Part D program than it actually did if CMS had rejected Humana's Bids for the Walmart Basic Plan for contract years 2011 through 2017 because those Bids were not allegedly “actuarially equivalent” to the defined standard benefit. The result is the same under Relator's alternative theory in which Humana should have submitted different Bids with “improved” or “greater” benefits for the Walmart Basic Plan than the benefits actually included in Humana's Bids. In particular, CMS would have paid more money than it actually did for the Walmart Basic Plan, including but not limited to, increased direct subsidy payments. (DN 245-3, at PageID #18150.) Humana then stated its contentions are supported by the CMS prescription coverage files; CMS Medicare Advantage/Part D contract and enrollment data; CMS low income subsidy enrollment data; CMS plan crosswalks; yearly national average bid values, yearly federal insurance values, and yearly low income benchmark values; Part D plan payment; and payment reconciliation data. (Id.) Humana then referred Relator to over 500 documents. (DN 245-3, at PageID # 18151-18163.) Relator argues that Humana's substantive response consists of a single paragraph containing two ipse dixit assertions, neither of which is supported by explanation, facts, calculations or legal authority followed by a list of hundreds of documents. (DN 245, at PageID #18114.) Relator argues that all of the documents cited by Humana reflect information that Humana provided to CMS concerning its bid or its claims for payment, but none of the documents speak to what CMS would have done if CMS had rejected Humana's bids or if Humana had submitted different bids that were not fraudulent. (DN 245, at PageID #18115.) A defendant must be able to generally explain the factual basis for each affirmative defense pled in its answer and provide any documents that relate to its affirmative defenses in response to a contention interrogatory. Davis v. Hartford Life & Accident Ins. Co., No 3:14-CV-507-TBR, 2015 WL 7571905, at *5 (W.D. Ky. Nov. 24, 2015). Relator argues that if Humana has any facts, calculations or authority for its proposed measure of damages, it must provide an explanation in its response and if Humana does not have any of this information, it must also expressly state that in its response. (DN 245, at PageID #18125.) Relator argues that if Humana asserts that it has nothing further to provide in response to interrogatory no. 9, then pursuant to Rule 37(c)(1) Humana should be precluded from introducing any such facts, calculations or authority at summary judgment or trial. (DN 245, at PageID #18125.) See Precision Seed Co. v. Consol. Grain & Barge Co., No. 3:03-CV-079, 2006 WL 1281689, at *7 (S.D. Ohio May 8, 2006). In response, Humana argues that it already provided a complete response to the interrogatory with all discoverable facts that it currently possesses. (DN 253, at PageID # 18849.) Humana argues it provided Relator a three-page narrative response, nine public sources of facts and authorities, and 530 responsive documents from Humana's production. (DN 253, at PageID # 18853.) Humana states that the only other responsive information that Humana has implicates the work product of non-testifying litigation consultants retained by the undersigned defense counsel and the work product of potential experts whom Humana may later call as trial witnesses in support of its defense. (DN 253, at PageID #18849.) Humana uses the terminology “privileged litigation consultants”, however no such blanket privilege exists for all litigation consultants as explained further below and the protections afforded to facts and opinions of non-testifying experts are distinct from the attorney-client privilege and work product doctrine. *4 In reply, Relator argues that Humana “oversells its interrogatory response” as the narrative response consists of four sentences stating that absent Humana's conduct, CMS would have paid more than it actually did if it had not contracted with Humana at all, or if Humana had submitted different bids. (DN 256, at PageID # 19214.) Relator takes issue with the response because Humana does not explain its position, does not cite to any authority in support of its assertions and does not reference any supporting facts. (DN 256, at PageID #19214.) Humana's Prior Interrogatory Relator relies on language from a previous order of the Court that provided, “a party has an obligation to answer an interrogatory requesting an explanation of claimed damages even if it cannot provide an exact computation of the damages.” (DN 106.) Relator also states that Humana previously served him with a virtually identical interrogatory asking Relator to state in detail all actual damages Relator contends the Government suffered. (DN 245-7, ROG 21.) The prior interrogatory at issue was No. 21 which provided, “State in detail all Actual Damages that You contend the Government suffered that were proximately caused by Humana's violations of the False Claims Act, as alleged in the Complaint, including all facts and/or calculations Concerning or supporting those Actual Damages.” (DN 245-8.) Relator contends that after guidance from the Court in DN 107, Relator provided a lengthy narrative explanation of his theory of damages and a damages calculation. (DN 245-8; DN 107 at 50-55.) Relator argues that he provided calculations pertaining to damages in response to a contention interrogatory from Humana and Humana should be required to reciprocate. (DN 245, at PageID #18125.) In meet and confer efforts Counsel for the Defendant explicitly stated, “If Relator will agree to supplement his response to Interrogatory No. 21 by describing exactly how the documents he cites are related to his theory of damages, then Humana will consider providing a similar explanation for the documents cited in its response to Relator's Interrogatory No. 9.” (DN 245-4, at PageID #18173.) Now, in response to the motion to compel, Humana argues that this interrogatory is unlike Humana's interrogatory No. 21. (DN 253, at PageID #18854.) Humana states that unlike the affirmative defense at issue here, Relator's Complaint contained specific dollar figures of alleged damages for which Relator had drafted his own discoverable documents, Relator's damages did not depend on work by experts retained for this litigation, and Relator refused to provide any response at all to Humana's interrogatory No. 21. (DN 253, at PageID #18854.) The Court is unpersuaded by this argument as Humana's prior interrogatory is substantively the same as Relator's interrogatory No. 9. Humana contends that it has provided a narrative response with discoverable supporting documentation, which is all that is required by Rule 33. (DN 253, at PageID #18855.) The Court finds Humana's response is deficient as explained further below. Rule 33(d) Rule 33(d) provides, “If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.” *5 Rule 33(d) is not intended to be used as a “procedural device for avoiding the duty to give information.” Mullins v. Prudential Ins. Co. of Am., 267 F.R.D. 504, 514 (W.D. Ky. Apr. 30, 2010.) A party attempting to rely on Rule 33(d) must not only certify that the answer may be found in the records reference by it, but also “must specify where in the records the answer [can] be found.” Id. (quoting Cambridge Elecs. Corp v. MGA Elecs. Inc., 227 F.R.D 313, 322-323 (C.D. Cal. 2004) (additional citation omitted.)) A party's general reference to a mass of documents or records is not an adequate response under Rule 33(d). Id. “The responding party may not avoid answers by imposing on the interrogating party a mass of business records from which answers cannot be ascertained by a person unfamiliar with them.” Id. (quoting In re G-I Holdings Inc., 218 F.R.D 428, 438 (D.N.J. 2003)). Relator argues that Humana's citation to multiple sources of public data on the Part D program does not explain Humana's contentions about what CMS would have done. (DN 245, at PageID #18115.) Relator argues Humana failed to explain how any of the documents listed in the response were relevant or responsive to the interrogatory and did not give Relator any insight into the basis for Humana's affirmative defense. (DN 245, at Page ID # 18115.) Relator argues that this response falls short of Humana's obligation to provide a full answer since none of the documents provide an explanation of how damages should be calculated in the present action or provide any information as to why Humana believes CMS would have paid more if Humana's bids had been rejected. (DN 245, at PageID # 18118.) Relator states that during the meet and confer process, counsel for Humana claimed that the Medicare Advantage rate books and Bid Pricing Tools that Humana's counsel claims “are obviously used to calculate the value of the benefits that Humana actually included in its bids for purposes of comparison with the value of the ‘improved’ or ‘greater’ benefits that Relator alleges Humana should have included in its bids.” (DN 245-4 at PageID #18170.) However, Relator argues that Humana fails to explain how rate books related to a different Medicare program than the one at issue could possibly be relevant to its theory of damages. (DN 256, at PageID #19215.) Relator's arguments are well taken and Humana does not address Relator's arguments regarding the substance of the documents listed in response to Interrogatory No. 9. Accordingly, the Court finds that Humana must supplement its response to specify and further explain where in the records the answer to interrogatory No. 9 can be found. Mullins at 514. Request for Legal Authority Relator argues Humana's theory set forth in its response is contrary to well established law since there is no basis for asserting that hypothetical behavior is relevant to the calculation of damages in an FCA case. (DN 245, at PageID #18121.) Relator argues that interrogatory no. 9 requests Humana's authority for its claimed affirmative defense similar to EC Source Services v. Burndy LLC, No. 2:16-CV-122-JNP, 2018 WL 3625330, at *2-3 (D. Utah July 30, 2018)(finding a contention interrogatory asking for Defendant to “describe in detail all facts and legal authority you intend to use at trial that support your thirteenth affirmative defense” did not violate the work-product protection). Relator argues that Humana's response completely disregards the governing law that states the general measure of damages under the FCA is “the difference in value between what the government bargained for and what the government received.” United States ex rel. Wall v. Circle C Constr., LLC, 813 F.3d 616, 617 (6th Cir. 2016) citing United States ex rel. Roby v. Boeing Co., 302 F.3d 637, 646 (6th Cir. 2002). “The government is entitled to full damages where it proves it received no value at all.” Roby, 302 F.3d at 646. (DN 245, at PageID #18123.) Relator argues that the complete disconnect between Humana's assertions in its interrogatory response and the governing law on damages in the Sixth Circuit leaves Relator with no insight as to what basis Humana has for its contention and what further discovery Relator may need to seek to assess this defense. (DN 245, at PageID #18124.) *6 In response, Humana argues that Relator's demand for legal authority is nothing more than a request for legal opinions regarding damages theories in False Claims Act cases and falls beyond the scope of what Rule 33 permits. (DN 253, at PageID #18857.) Humana argues that Courts routinely hold that pure requests for legal authority supporting a party's position are not proper subjects for interrogatories. Humana relies on The Way Int'l v. Exec. Risk Indem., Inc., 2009 WL 3157402, at *7-8 (S.D. Ohio Jan. 27, 2009) wherein the interrogatories at issue sought “copies of any American court decisions, together with copies of briefs filed in such cases, that have construed any of the provisions” contained in the Plaintiff's insurance policy with Defendant. Id. at *2. The Court in The Way Int'l stated that the interrogatories would implicate the work product doctrine and that the request for Defendant's legal authority resembles the attempt “without purported necessity or justification, to secure the mental impressions formed by an adverse party's counsel in the course of his legal duties.” Id. at *8 citing Hickman v. Taylor, 329 U.S. 495, 510 (1947). Humana argues that similarly interrogatory No. 9 seeks a pure legal conclusion, and so it does not warrant a response. (DN 253, at PageID #18858.) In reply, Plaintiff relies on Danley v. Encore Capital Grp., Inc., 2016 WL 8115421, at *1 (E.D. Mich. 2016). (DN 256, at PageID #19217.) In Danley, the Court stated that an interrogatory asking, “For each debtor, by individual account number, the base debt that defendants purchased with respect to that account; the amount of interest that defendants added to the base debt for that account; whether defendants (a) sent a collections letter and/or (b) filed suit against that debtor; and the amount, if any, that defendants collected after (a) sending the letter or (b) securing a judgment against that debtor, and the definitions for the abbreviations and codes used in the debtors files” was relevant to plaintiff's intended motion for class certification. Id. Claiming work-product privilege, the defendants objected to providing plaintiffs with information regarding the legal authority for defendants' determination of the interest they add to “as is” debts after they have been charged off by the banks. Id. The Court held that the defendants' objection to plaintiffs' request for the legal authority that supports the determination of interest to the charged-off accounts is without merit. Id. However, the Court did not provide an explanation for its reasoning. Whether Humana's damages calculation is accurate based on prevailing caselaw is not before the Court at this time. This Court further finds Humana's objection to providing authority in response to the request concerning Humana's affirmative defense is meritorious as the request encompasses opposing counsel's legal research and is analogous to The Way Int'l v. Exec. Risk Indem., Inc., 2009 WL 3157402, at *7-8 (S.D. Ohio Jan. 27, 2009) citing Hickman v. Taylor, 329 U.S. 495, 510 (1947). Pursuant to Fed. R. Civ. P. 33(2), “An interrogatory may relate to any matter that may be inquired into under Rule 26(b) ...” Fed. R. Civ. P. 26(b)(3)(A) states, “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative ... But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(1) provides that a party “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense....” The Court finds that opposing counsel's legal research implicates the mental impressions of an attorney thus it may not be inquired into under Rule 26(b)(1) and further, Plaintiff has not satisfactorily shown a substantial need for the materials to prepare its case and that the materials cannot be obtained without undue hardship. Accordingly, Humana does not have to provide “authority” as requested in interrogatory No. 9. Expert Disclosure *7 Relator argues that Humana's assertion that the method of calculating damages is privileged is baseless. (DN 245, at PageID 18126.) Relator argues that the Court in Davis squarely addressed this issue when the defendant objected to Davis's interrogatory “seek[ing] the factual basis for each of [its] affirmative defenses” on the grounds that “the factual basis of its affirmative defenses ... concerns the merits of Davis's claim and legal theories are privileged and therefore not discoverable.” Davis at *5. The Court in Davis ordered the defendant to provide the plaintiff with an explanation of the factual basis for each affirmative defense and to provide any documents that relate to its affirmative defenses. Relator also argues that Rule 33(a)(2) expressly states that an interrogatory “is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact.” (DN 245, at PageID #18127.) Humana argues it has limited its objections to (1) the work product of privileged consultants retained by counsel to defend this litigation governed by Fed. R. Civ. P. 26(b)(4)(D), and (2) the work product of potential testifying experts whom Humana may call as witnesses at trial in support of its defense governed by Fed. R. Civ. P. 26(a)(2)(D). (DN 253, at PageID #18857.) Humana does not address or substantiate in DN 253 any other objections asserted in its amended response. (DN 245-3, at PageID # 18149.) Humana argues that Relator failed to specify the privileges that are inapplicable to Humana's response. (DN 253, at PageID #18852.) In reply, Relator argues that Humana does not cite to any case law that allows a responding party to claim that responsive information is the product of consulting or testifying exerts. (DN 256, at PageID # 19208). a. Non-Testifying Experts As an initial matter, it is the burden of the party asserting the privilege to show that the material is privileged. Genesco, Inc. v. Visa U.S.A., Inc., 302 F.R.D. 168, 192-193 (M.D. Tenn. March 10, 2014). Second, “[t]he ‘non-testifying expert’ privilege is distinct from the work-product doctrine and the attorney-client privilege. Absent a showing of extraordinary circumstances, this rule restricts discovery of facts known and opinions held by non-testifying experts and is designed to prevent the unfairness of counsel benefiting from an adversary's retention and financing of an expert.” Id. at 189. A party seeking discovery of facts or opinions held by a non-testifying consulting expert bears the burden of showing exceptional circumstances. Id. Courts have interpreted exceptional circumstances to mean that the party cannot obtain equivalent information from another source. Id. Courts have not found exceptional circumstances where a party could obtain the same information by using their own experts but have found exceptional circumstances where circumstances precluded all but one of the party's experts from gaining a firsthand observation of the object of condition. Id. at 190. The Court finds that Relator has not identified exceptional circumstances sufficient to meet his burden to allow discovery from non-testifying consulting experts. The Court finds that in its response to interrogatory No. 9 Humana failed to explicitly state the two objections it now claims were evoked, and instead Humana asserted many “privileges” in response to interrogatory No. 9 and relied on the catch-all phrase “or any other applicable privilege.” (DN 245-3, at PageID #18148.) Accordingly, Humana shall supplement its response. b. Testifying Experts Relator argues that there is not any merit to Humana's argument that the interrogatory seeks “expert testimony” in asking Humana to explain its affirmative defense. Relator argues that simply because a topic may be addressed by an expert in the future doesn't relieve a party of its obligation to provide the information it has now. (DN 245, at PageID #18131.) Relator relies on United States v. Blue Cross Blue Shield of Mich., No. 10-14155, 2012 WL 12930840, at *5-6 (E.D. Mich. May 30, 2012) wherein the Court found that the defendant did not meet its burden to persuade the Court that the information the interrogatory seeks is solely in the hands of experts, retained for this litigation, or that the information cannot be obtained without the experts' aid. However, the interrogatory in that case sought details of facts known to individuals interviewed in a DOJ investigation or other investigations of the defendant. The Court finds this case to be factually distinguishable as the interrogatory before this Court involves the calculation of damages which may necessitate expert testimony due to the complex nature of the bids at issue. *8 Humana argues Relator is not presently entitled to discovery of Humana's potential testifying experts, but that Humana will provide any relevant expert disclosures and reports by the expert discovery deadline specified in the Court's scheduling order. (DN 253, at PageID #18849.) Humana states that the work product of potential testifying expert witnesses is not discoverable at this time because expert discovery has not yet begun. (DN 253, at PageID # 18852.) A party must disclose to the other parties the identity of any witness it may use at trial to present evidence and this disclosure must be accompanied by a written report if the witness is one retained or specially employed to provide expert testimony in the case. Fed. R. Civ. P. 26(a)(2)(A)-(B). “A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made: (i) at least 90 days before the date set for trial or for the case to be ready for trial; or (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure.” Fed. R. Civ. P 26(D). The parties must supplement these disclosures when required under Rule 26(a)(2)(E). Humana explicitly stated in response to the interrogatory that it “objects to this Interrogatory to the extent it prematurely seeks expert testimony in advance of the period set forth under the applicable scheduling order and the Federal Rules of Civil Procedure.” (DN 245-3, at PageID # 18149.) Initially, affirmative expert reports were due on or before March 22, 2019, rebuttal expert reports were due on or before April 26, 2019, and expert discovery was due on or before 5/17/2019. (DN 177.) All post-fact discovery deadlines were stayed pursuant to DN 202 more than nine months ago. (DN 212, at PageID #12822.) Given that fact discovery has been closed since that time as well and Humana now asserts that the interrogatory request is premature under the scheduling order, the Court finds that expert discovery shall commence pursuant to the applicable deadlines set forth below. III. ORDER Accordingly, IT IS HEREBY ORDERED as follows: (1) Relator's motion to compel a complete response to Interrogatory No. 9 is GRANTED IN PART. (DN 245). a. Humana shall serve its supplemental response on or before January 31, 2020. b. Humana shall supplement its response to identify and describe any facts, documents, and calculations that are not opinions held by non-testifying experts concerning the amount of damages it contends the Government suffered as a result of the conduct alleged in the Complaint, including but not limited to Humana's affirmative defense that “Relator's claims are barred in whole or in part by the absence of damages.” c. Humana shall supplement its response to specify and further explain where in the documents the answer to interrogatory No. 9 can be found pursuant to Fed. R. Civ. P. 33(d). d. Humana shall supplement its response to explicitly identify which privileges it is asserting. e. Humana does not have to provide legal authority to support its response to interrogatory No. 9. (2) Expert reports are due on or before January 31, 2020. (3) Rebuttal expert reports are due on or before February 28, 2020. (4) All expert discovery shall conclude on or before March 31, 2020. *9 (5) Dispositive and Daubert motions are due on or before May 28, 2020.