UNITED STATES OF AMERICA ex rel. STEVEN SCOTT, Plaintiff, v. HUMANA, INC., Defendant CIVIL ACTION NO. 3:18-CV-61-GNS-CHL United States District Court, W.D. Kentucky Signed September 25, 2019 Filed September 26, 2019 Counsel Jeffrey A. McSorley, U.S. Department of Justice—Commercial Litigation 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 Relator, Steven Scott (“Relator”) alleges that Defendant, Humana (“Humana” or “Defendant”) made false bids to the Centers for Medicare & Medicaid Services (“CMS”) in order to secure lucrative Medicare Part D contracts. (DN 1, PageID # 6.) Relator, Steven Scott (“Relator”), was a Humana actuary who worked on the Walmart Plan and discovered this alleged fraud in the course of his employment. (DN 184, PageID#10988.) Relator endeavors to show that Humana kept two sets of metrics and assumptions: “one analysis that it used to report the actuarial value of the Walmart Plan to CMS, which would justify the award of a contract, and a second analysis that Humana used to set its own internal operating budget and to report its expected financial performance to its shareholders. The latter, accurate analysis, which was consistent with Humana's actual experience, showed that Humana did not expect its Walmart Plan to be actuarially equivalent, as required to obtain a Part D contract.” (Id.) On September 7, 2018, the Court granted Relator's motion to strike (DN 76) and Humana's fourth, fifth, sixth, seventh and ninth affirmative defenses were stricken from its Answer (DN 57). (DN 112.) Before the Court is Humana's Motion to Compel Relator to Supplement his Response to Humana's First Set of Interrogatories. (DNs 167, DN 186 and DN 192.) Also before the Court is Humana's Motion for Leave to File Under Seal Confidential Information Accompanying Humana's Motion to Compel Relator to Supplement his Response to Humana's First Set of Interrogatories (DNs 165, 188, 191), Relator's Motion for Leave to File Relator's Opposition to Defendant Humana Inc.'s Motion to Compel Relator to Supplement his Response to Humana's First Set of Interrogatories Provisionally Under Seal (DNs 185, 189), and Relator's Motion For Leave to File Relator's Opposition to Humana's Motion to Seal Information Accompanying its Motion to Compel Relator to Supplement his Response to Humana's First Set of Interrogatories Provisionally Under Seal (DNs 187, 190.) For the reasons set forth below, Humana's Motion to Compel Relator to Supplement his Response to Humana's First Set of Interrogatories (DN 167) is GRANTED IN PART AND DENIED IN PART. Humana's Motion for Leave to File Under Seal Confidential Information Accompanying Humana's Motion to Compel Relator to Supplement his Response to Humana's First Set of Interrogatories DNs 165 is DENIED. Relator's Motion for Leave to File Relator's Opposition to Defendant Humana Inc.'s Motion to Compel Relator to Supplement his Response to Humana's First Set of Interrogatories Provisionally Under Seal (DN 185) and Relator's Motion For Leave to File Relator's Opposition to Humana's Motion to Seal Information Accompanying its Motion to Compel Relator to Supplement his Response to Humana's First Set of Interrogatories Provisionally Under Seal (DN 187) are DENIED WITHOUT PREJUDICE. I. MOTION TO COMPEL A. Legal Standard Trial courts have wide discretion in dealing with discovery matters. See S.S. v. E. Ky. Univ., 532 F.3d 445, 451 (6th Cir. 2008) (quoting Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981)). Fed. R. Civ. P. 26(b)(1) provides that “[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). This language is broadly construed by the federal courts to include “any matter that bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). The scope of discovery is not without limits, however. In assessing whether information is within the scope of discovery, the Court is directed to consider “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)(1). *2 Fed. R. Civ. P. 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” or “fails to produce documents ... as requested under Rule 34.” 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). Discovery responses must be “complete and correct.” Fed. R. Civ. P. 26(g)(1)(A). Objections to interrogatories “must be stated with specificity.” Fed. R. Civ. P. 33(b)(4). B. Discussion In April 2018, Humana served Relator with its first set of interrogatories and Humana contends Relator has not responded “separately and fully” to these interrogatories as required by Fed. R. Civ. P 33(b). (DN 167-2 ¶3). Humana concedes Relator has satisfactorily responded to interrogatories No. 5, 10, 11, 13, 20 and 21, and Humana states it is not moving to compel an additional response to interrogatory No. 19. (DN 167, at PageID #2977, fn1.) Humana argues Relator has not provided complete and adequate responses to the remaining interrogatories. (DN 167, at PageID #2977.) Humana contends Relator's most recent supplement to his interrogatory responses suffers two defects: (1) Realtor has improperly used Rule 33(d)'s option to identify business records in lieu of providing narrative responses, pointing Humana to nearly 3,000 documents without specifying where he contends those documents contain responsive information; and (2) Relator's “shifting narrative responses to numerous interrogatories, coupled with his continued refusal to confirm that the responses are complete, has prevented Humana from confirming the specifics of Relator's liability theories”. (DN 167 at PageID #2973-2974.) Specifically, Humana argues it still does not know “what Relator alleges to be the complete record of alleged false claims, statements and records; the value of what specific Medicare Part D benefits Realtor alleges that Humana misrepresented; or what obligation to repay the Centers for Medicare and Medicaid Services (“CMS”) Relator alleges Humana avoided.” (DN 167, at PageID # 2974.) Relator served responses and objections to the interrogatories on May 14, 2018, and supplemented those responses on July 13, 2018. (DN 167-2 ¶6-7) Relator supplemented his response to interrogatory No. 21 on August 3, 2018, and provided additional supplemental responses to Humana's interrogatories on August 10 and November 9, 2018. (DN 167-7; DN 186, at PageID # 11249.) Humana argues Relator supplemented his most recent responses with information that did not depend on any discovery from Humana or other parties and was therefore available to him at the time of his initial response. (DN 167, at PageID # 2976.) In opposition, Relator argues each response contained a detailed narrative in addition to identifying specific responsive documents from Humana's own document production. (DN 186, at PageID #11246.) Relator states that 15 of Humana's 21 interrogatories did not request Relator identify responsive documents in the record, however Relator voluntarily did so and is not under any further obligation to identify which portions of the documents contain responsive information to each interrogatory. (DN 186, at PageID # 11247.) Relator argues his responses satisfy the Fed. R. Civ. P 33(d) standard by specifically identifying the Bates numbers of documents responsive to each of Humana's interrogatories. Id. Further, Relator argues nearly all of the cited documents were created and produced by Humana, many of them being emails. (DN 186, at PageID # 11252.) Relator contends that fact discovery has been ongoing, and Relator has supplemented his responses consistent with his obligation under Fed. R. Civ. P 26(e). Id. *3 In reply, Humana argues despite Relator's narrative responses his interrogatory responses still do not commit to specific factual bases for Relator's liability theories and his indiscriminate document citations do not identify those bases either. (DN 192, at 11375.) Further, Humana argues that the bases for Relator's contentions are not self evident simply because the documents cited to were produced by Humana. (DN 192, at PageID # 11376.) 1. Rule 33(d) Rule 33(d) provides as follows: 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. 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)). Humana argues the primary deficiency in Relator's supplemental responses is his reliance on broad citations to voluminous document collections with no specific details as to which documents within a family, or which portions of a document, are responsive. (DN 167, at PageID # 2984.) Humana argues many of the supplemental responses cite the deposition testimony of a Humana witnesses without identifying any of the excerpts or portions of the testimony that Relator contends are responsive. (e.g. DN 167-7, at PageID # 3108.) As such, Humana contends the burden for it to discern Relator's basis for his allegations among thousands of documents is disproportionately greater than the burden on Relator to provide a more specific answer to the interrogatories at issue. (DN 167, at PageID # 2985.) In opposition, Relator argues that virtually all of the documents cited by Relator are Humana's own documents, 63% are Humana's own emails, and the relevance of these documents to the specific contentions at issue in the interrogatories is self-evident. (DN 186, at PageID # 11254.) Relator argues the interrogatory responses specifically identify the Bates numbers of responsive documents on an interrogatory-by-interrogatory basis, which Relator has culled from the hundreds of thousands of documents produced by Humana. (DN 186, at PageID # 11253.) Relator argues that the broadly worded interrogatories invited expansive responses since Humana asked Relator to provide “in detail every fact” supporting each response. (DN 186, at PageID # 11255.) *4 In reply, Humana specifically argues that Relator alone knows what facts form the basis for his FCA allegations and Humana cannot divine his factual contentions from its own voluminous business records. (DN 192, at PageID #11380). See Cleveland Constr., 2006 WL 2167238, at *6 (“[E]ven if Gilbane could read CCI's mind, that alone is no guarantee that it could discern the answers to its Interrogatories since it is highly unlikely that Gilbane would view certain facts and occurrences the same way that CCI does, as evidenced by the present discovery dispute.”) The Court addresses each interrogatory in turn below: A. Interrogatory No. 1: Identify all ‘false or fraudulent claims for payment to the United States’ that You allege Humana ‘knowingly presented’ or ‘caused to be presented’ to the Government as stated in Paragraph 200 of the Complaint, including the Bates number(s) of all Documents that include ‘false or fraudulent claims for payment to the United States.’ (DN 167-3, at PageID #3003.) Humana argues that Relator's first supplemental responses from July 13, 2018 identify “each and every Medicare Part D Prescription Drug Event (“PDE”) record relating to the Walmart Plan” as a false claim. (DN 167-4, at PageID # 3018.) Humana argues Relator's November 9, 2018 supplemental responses cite to nine data files containing PDE data, but do not identify the alleged false claim within those files. (DN 167-7, at PageID # 3101.) Humana states Relator has refused to amend his response to identify the specific false claims he is alleging. (DN 167, at Page ID # 2977.) In opposition, Relator clarifies his response states that “each and every Medicare Part D PDE record relating to the Walmart Plan submitted to CMS for reimbursement for those contract years and those regions” is a false claim. (DN 167-4, at PageID # 3018-3019.) Relator argues he need not identify for Humana each separate PDE record within Humana's own production of PDE data files. (DN 186, at PageID #11258.) Relator further argues Humana's belief that Relator is preserving his ability to allege unspecified false claims is unsubstantiated since Relator describes with specificity the other false claims that Humana submitted for payment including “specified enrollment information, claims data, bid submission data, and other data that CMS specifies.” (DN 167-4, at PageID # 3019; DN 186, at PageID # 11258.) Based on the foregoing, the Court finds that Relator has sufficiently answered the interrogatory by stating each and every Medicare Part D Prescription Drug Event record relating to the Walmart Plan was false and specifying the nine PDE records by Bates number on DN 167-7 Page ID # 3123, in sufficient detail to enable Humana to locate and identify them as readily as Relator could. Accordingly, the motion is denied as to interrogatory No. 1. B. Interrogatory No. 2: Identify all ‘false records or statements material to false or fraudulent claims’ to the Government that You allege Humana ‘knowingly made or used, or caused to be made or used’ as stated in Paragraph 201 of the Complaint, including the Bates number(s) of all Documents that include “false records or statements material to false or fraudulent claims. (DN 167-3, at Page ID #3003.) Humana argues that Relator has yet to specify what records or statements within Humana's voluminous bid documentation he alleges to be false. (DN 167, at Page ID # 2978.) Humana argues Relator's November 9, 2018 supplemental responses cite to 650 documents, including bid pricing tool spreadsheets, copies of bid attestations, and supporting documentation files, but Relator did identify specific false statements in these documents. (DN 167-7, at PageID # 3124-3140.) Humana argues Relator has not provided any records or a specific response detailing what certifications Humana was required to submit to CMS that he contends were false other than the bid attestations. (DN 167, at PageID # 2978.) *5 In opposition, Relator contends his narrative responses explain that the false records or statements material to Humana's false or fraudulent claims include, “each and every Bid relating to the Walmart Plan Humana submitted to CMS for the 2011-2017 contract years across all CMS-defined regions” and the “certifications that Humana was required to submit to CMS for the 2011-2017 contract years relating to the Walmart Plan.” (DN 167-4, at PageID # 3021-3022.) Relator argues his response explains the bids and other data were not accurate “because Humana intentionally overstated the value of the Walmart Plan in its bids. Relator argues he provided more than sufficient detail to permit Humana to locate and identify the records from which the answer may be ascertained. (DN 186, at PageID # 11260.) Further, Relator argues that Humana has not provided its certifications to CMS such that Relator cannot provide exact Bates numbers for these documents. (DN 186, at PageID # 11260.) In reply, Humana argues that Relator does not specify what aspects of Humana's voluminous bid pricing tool spreadsheets he contends are false. (DN 192, at PageID #11376.) Humana argues that it submits 35 bid pricing tools to CMS each year and these workbooks contain hundreds of data fields. (DN 192, at PageID #11377.) Further, Humana says Relator does not specify which aspect of the annual Part D bid is false. Id. The Court finds Relator's supplementary responses to interrogatory No. 2 include both a narrative and an attachment providing exact Bates numbers Humana can use to find the documents Relator relies upon. Compare with Perez v. KDE Equine, LLC, 2017 WL 56616, at *5 (W.D. Ky. Jan. 4, 2017) (Perez' responses stated “those records have already been provided to the Department of Labor during its investigations”); Mullins v. Prudential Ins. Co. of Am., 267 F.R.D. 504, 514 (W.D. Ky. 2010) (Prudential stated that its defenses were “governed by ERISA law and/or the terms of the plan documents/LTD policy at issue, which are readily identifiable by reviewing the plan documents produced under seal by Prudential in this matter”); Myers v. Anthem Life Ins. Co., 316 F.R.D. 186, 198 (W.D. Ky. 2016) (the responding party stated “the factual bases for its defenses can be found in the administrative record.”). Humana has not stated that the information is unobtainable from the documents, only that the burden on Humana to ascertain the information is disproportionately greater. However, the Court observes that Relator has provided Humana with exact Bates numbers of allegedly responsive documents. Relator's responses also identify the year and which categories of documents he contends are false. This is a clear answer to the call of the question. Humana has not persuaded the Court that the burden of deriving the information from the identified documents is more for them than it would be for Relator or that the response lacks sufficient detail to permit Humana to find the documents as readily as Relator. Accordingly, the motion is denied as to interrogatory No. 2. C. Interrogatories No. 7 & 8: No. 7: State in detail every fact Concerning Your contention in Paragraph 194 of the Complaint that “CMS would not have approved payments to Humana had it known that the enrollment and PDE records claimed payment for benefits that were worth less than the defined standard and/or claimed payment for excessive LICS costs.” No. 8: State in detail every fact Concerning your contention in Paragraph 196 of the Complaint that, “Humana's misrepresentations were material to CMS's decision to award part D contracts to Humana and to make direct subsidy and LICS payments to Humana pursuant to those contracts.” (DN 167-3, at PageID #3005.) Humana argues Relator responded in identical fashion to both interrogatories; citing 95 documents and the deposition testimony of Lazar Ivetic. (DN 167, at PageID # 2981.) Humana argues Relator does not specify what portions of those documents or deposition testimony are responsive. (DN 167, at PageID # 2981.) Humana argues Relator does not cite to documents concerning Humana's enrollment records. Id. *6 In opposition Relator argues he does not need to list specific enrollment records to answer the interrogatory and Relator has explained in his narrative responses why the enrollment records are false. (DN 186, at PageID #11263.) Relator argues he has no obligation to specify the portions of documents or deposition testimony he believes are responsive. (DN 186, at PageID #11264.) The Court finds upon review of Relator's responses that the narrative included in supplemental responses 7 and 8 do not contain information directly addressing why the enrollment records are false; however the Court agrees that whether the enrollment records are false is not pertinent to answering interrogatories No. 7 and 8 since they ask Relator to substantiate the materiality of the allegedly false information to CMS. However, Relator cannot cite to a deposition as a whole. See United States v. Sturdevant, 2009 WL 5217359 at *2 (D. Kan. Dec. 30, 2009) (explaining that parties may “respond to an interrogatory with deposition testimony, where that testimony is responsive and where the specific pages or portions of the transcript are provided,” but concluding that the “broad reference to entire deposition transcripts was insufficient.”). Accordingly, the motion is granted as to interrogatories No. 7 and 8 in part. Relator is ordered to supplement his responses to identify the responsive portions of the deposition testimony. D. Interrogatory No. 9: State in detail every fact Concerning how “Humana decreased its costs under the contract relative to the payments it received from the government and beneficiaries,” “[b]y misrepresenting the value of its benefits,” as You contend in Paragraph 6 of the Complaint, including a description of the specific benefits for which Humana allegedly misrepresented the value of those benefits. (DN 167-3, at PageID #3005.) Humana argues that in response to this interrogatory, Relator's supplemental responses cite to 1,140 documents, including their “family members” without identifying which information Relator is relying on to support his allegations. (DN 167, at PageID # 2981.) Humana further argues Relator did not identify the specific Part D benefits whose value he alleges Humana misrepresented, even though Relator previously responded that these benefits are “described in the Plan Benefits Packages that Humana submitted to CMS”. (DN 167-4, at PageID #3044.) In opposition, Relator argues Humana has produced hundreds of thousands of documents, and Humana's interrogatory calls for “every fact” supporting the contention in interrogatory No. 9, so it is not surprising that over 1,000 documents concern Humana's alleged misrepresentation of the value of its benefits. (DN 186, at PageID # 11264.) Further, Relator contends the relevancy of these documents is explained in the narrative response. Id. Realtor states his response to the interrogatory explains Humana misrepresented the value of the benefits in the Walmart Plan as a whole. (DN 186, at PageID # 11264.) As stated before, Relator cannot cite to an entire deposition. Further, the Court finds that the burden on Humana is disproportionately greater than Relator to derive the information from the identified documents as Relator has listed over 1,000 documents. Humana has persuaded the Court that the burden of deriving the information from the over 1,000 documents cited is more for Humana than it would be for Relator. Accordingly, the motion is granted as to interrogatory No. 9. E. Interrogatory No. 12: *7 State in detail every fact Concerning how Humana has “provid[ed] beneficiaries with fewer benefits than required,” as You contend in Paragraph 111 of the Complaint, including a description of the specific benefits that Humana was required to provide each beneficiary and a description of exactly which specific benefits Humana allegedly failed to provide to each beneficiary. (DN 167-3, at PageID #3006.) Humana argues that Relator's supplemental response to interrogatory No. 12 cites 209 documents and the deposition testimony of Lazar Ivetic, but does not specify which parts of the deposition testimony or documents are responsive. (DN 167, at PageID # 2982.) In opposition, Relator argues he has no obligation to identify the relevant portions of the documents he has already provided Bates numbers for. (DN 186, at PageID # 11264.) As stated before, Relator cannot cite to a deposition as a whole. Further, even though Relator has provided Humana with exact Bates numbers of documents, the Relator's narrative does not address which benefits Humana allegedly failed to provide to each beneficiary or a description of the specific benefits. The Court finds Relator failed to address a portion of the interrogatory and as such, the motion is granted as to interrogatory No. 12. F. Interrogatories No. 14 & 15: No. 14: State in detail every fact Concerning Your contention in Paragraph 116 of the Complaint that “the actuarial assumptions in the Regular Model (from which Humana sets its budget projections) ... must reflect Humana's best estimate of the actuarial value of its Part D Plans,” including the Identification of any statute, regulation, directive, guidance, actuarial standards of practice, or any other instruction Concerning the alleged requirement that “the Regular Model (from which Humana sets its budget projections) ... must reflect Humana's best estimate of the actuarial value of its Part D Plans. No. 15: State in detail every fact Concerning Your contention in Paragraph 125 of the Complaint that “[a]s a matter of actuarial practice,” “consistently large differences” between member utilization estimates in bid submissions to CMS and member utilization estimates prepared for internal use require a Part D Plan Sponsor “to reevaluate the actuarial soundness of its bids,” including the Identification of any statute, regulation, directive, guidance, actuarial standards of practice, or any other instruction Concerning the alleged requirement that a Part D Plan Sponsor reevaluate the actuarial soundness of its bids. (DN 167-3, at PageID #3006-7.) Humana argues Relator has offered nearly identical responses to these interrogatories and supplemented his response by citing to 74 documents; the entirety of the testimony of Lazar Ivetic; and Actuarial Standards of Practice Nos. 8, 23, and 41. (DN 167, PageID # 2982.) In opposition, Relator contends he has no obligation to identify portions of responsive documents for Humana. Further, Relator argues that just because he supplemented his initial responses to Humana's contention interrogatories with Actuarial Standards of Practice does not mean that his prior responses were deficient. (DN 186, at PageID # 11265.) *8 Humana has not stated the information is unobtainable from the documents, only that the burden on Humana to ascertain the information is disproportionately greater. However, the Court observes that Relator has provided Humana with exact Bates numbers of documents and Relator also provides the Actuarial Standards of Practice to support his contentions regarding what is a matter of actuarial practice. This is a clear answer to the call of the question. Humana has not persuaded the Court that the burden of deriving the information from the identified documents is more for them than it would be for Relator or that the response lacks sufficient detail to permit Humana to find the document as readily as Relator. However, Relator cannot cite to a deposition as a whole. Accordingly, the motion is granted as to interrogatories nos. 14 and 15 in part. Relator is ordered to supplement his response to identify the relevant portions of the deposition testimony. G. Interrogatory No. 16: State in detail every fact Concerning Your contention in Paragraph 132 of the Complaint that “Humana has known that the [business] initiatives [designed to increase usage at RightSource and Walmart] would not actually increase utilization,” including when Humana acquired this alleged Knowledge, how such alleged Knowledge was acquired, and the Identity of all Persons who acquired such Knowledge. (DN 167-3, at PageID #3007.) Humana argues Relator's third supplemental responses cite to 597 documents without specifying what is responsive within those documents, and the documents do not fully address, “when Humana acquired this alleged Knowledge, how such alleged Knowledge was acquired and the Identity of all Persons who acquired such Knowledge” as the interrogatory requires. (DN 167, at Page ID # 2982.) Relator argues the majority of the 597 documents Relator has specifically identified are emails. These emails would contain address fields and dates showing the identities and dates of who acquired knowledge that Humana's utilization initiatives would not work and when. (DN 186, at PageID # 11265.) The Court finds that Relator has provided Humana with exact Bates numbers of emails Relator alleges are responsive to the interrogatory. The Court finds the burden of deriving the information from the identified documents is not more for Humana than it would be for Relator as many of them are emails with a subject and date provided. The Court finds the response contains sufficient detail to permit Humana to find the document as readily as Relator. Accordingly, the motion is denied as to interrogatory No. 16. H. Interrogatory No. 17: State in detail every fact Concerning Your contention in Paragraph 184 of the Complaint that “[t]he worksheets supporting the utilization initiatives ... are hastily compiled window dressing, lacking detail and containing errors that do not occur elsewhere in Humana's actuarial work.” (DN 167-3, at PageID #3007.) Humana argues Relator's Supplemental Responses cite to 34 documents without specifying which portions of these documents are responsive to this Interrogatory. (DN 167-7, at PageID # 3238.) In opposition, Relator contends he does not have an obligation to identify the relevant portions of the documents for Humana. (DN 186, at PageID # 11266.) Relator provided Humana with exact Bates numbers of documents and Relator's narrative responses also state that it was “highly uncommon for worksheets supporting the actuarial assumptions used in Humana's Bids to contain gross mathematical errors. In addition to errors, the initiative worksheets generally contained less supporting data than the worksheets supporting other actuarial assumptions used in the Bids.” (DN 167-4, at Page ID #3070.) This is a clear answer to the call of the question. Humana has not persuaded the Court that the burden of deriving the information from the identified documents is more for them than it would be for Relator or that the response lacks sufficient detail to permit Humana to find the document as readily as Relator. Accordingly, the motion is denied as to interrogatory No. 17. I. Interrogatory No. 18: *9 State in detail every fact Concerning Your contention in Paragraph 96 of the Complaint that “Milliman often incorporates Humana's assumptions into the bids, even though it may lack the information needed to determine whether assumptions are reasonable.” (DN 167-3, at PageID #3007.) Humana argues Relator's Supplemental Responses to this interrogatory cite to 111 documents and “the deposition testimony of Lazar Ivetic,” without any indication of which portions of the deposition testimony or cited documents are responsive. (DN 167-7, at PageID # 3239.) In opposition, Relator contends he does not have an obligation to identify the relevant portions of the documents for Humana in addition to the narrative provided. (DN 186, at PageID # 11266.) Relator has provided Humana with exact Bates numbers of documents and Relator's narrative response provides a clear answer to the call of the question. (DN166, at PageID # 2961.) Humana has not persuaded the Court that the burden of deriving the information from the identified documents is more for them than it would be for Relator or that the response lacks sufficient detail to permit Humana to find the document as readily as Relator. However, Relator cannot cite to the entire deposition transcript. Accordingly, the motion is granted as to interrogatory No. 18 in part. Relator is ordered to supplement his response identifying the pertinent portions of the deposition transcript. 2. Incomplete Answers 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. Humana argues that Relator's “shifting responses and continued reliance on vague descriptions leave Humana guessing about the factual basis for his core allegations.” (DN 167, at PageID # 2987.) Humana further argues that the supplemental responses provide incomplete answers to interrogatories seeking basic information essential to Humana's defenses and that Relator is attempting to preserve his ability to allege different and unspecified false claims in the future. (DN167, at Page ID # 2977.) Relator argues that his supplemental interrogatory responses from July 13, 2018 were made when Humana had not substantially completed its document production. (DN 186 at PageID# 11249.) Further, Relator states that no depositions had been scheduled or taken at that time. Id. Relator argues he answered each interrogatory based on a reasonable investigation and review of the discovery record as it existed as of the date of the response. (DN 186 at PageID # 11256.) See United States v. Quebe, 2013 WL 279539, at *15-16 (S.D. Ohio Jan. 23, 2017) (stating it “is the normal course of discovery” for courts to defer answers to contention interrogatories until the end of discovery.) Relator argues the duty to supplement does not equate to a refusal to confirm that the responses are complete. (DN 186 PageID # 11257.) A. Interrogatory No. 3: *10 Identify each ‘false record or statement material to an obligation to pay or transmit money or property to the United States’ that You allege Humana ‘knowingly made, used, or caused to be made or used’ as stated in Paragraph 202 of the Complaint, including the Bates number(s) of all Documents that include a ‘false record or statement material to an obligation to pay or transmit money or property to the United States.’ (DN 167-3, at PageID # 3004.) Humana argues that Relator's supplemental responses add a new narrative theory suggesting that PDEs are also false records that are material to an obligation to repay CMS, but Relator knew at the time he provided his first supplemental responses that Humana submitted PDEs to CMS. (DN 167, at PageID # 2978.) Humana also states Relator has not confirmed whether he continues to allege that the certifications he originally identified constitute false records or statements. (DN 167, at PageID # 2979.) In opposition, Relator argues that since this is a contention interrogatory, Humana should expect changes in responses over time. (DN 186, at PageID # 11260.) Relator clarifies that his responses unambiguously state the certifications are false statements. (DN 167-4, PageID #3026.) Given that these are supplemental responses to contention interrogatories, the Court does not find that the assertion of additional evidence to support Plaintiff's complaint in a supplementary response is improper. Accordingly, the motion is denied as to interrogatory No. 3. B. Interrogatory No. 4: Identify each ‘obligation to pay or transmit money or property to the United States’ or ‘to the Government’ for which Humana allegedly violated 31 U.S.C. § 3729(a)(1)(G) as stated in Paragraph 202 of the Complaint, including when, how, and on what basis each obligation arose and when Humana Knew about the obligation. (DN 167-3, at PageID # 3004.) Humana argues Relator's Supplemental Responses include a new theory that “each time Humana received a monthly or final payment from CMS for the Walmart Plan, Humana knew it had received an overpayment that is required to report and return to the Government.” (DN 167, at PageID # 2979.) Humana argues this new theory was based on information that was available to Relator at the time of his original response. In opposition, Relator once against argues that responses to contention interrogatories change over the course of discovery. (DN 186, at PageID # 11260.) As stated above, given that these are supplemental responses to contention interrogatories, the Court does not find that the assertion of additional evidence to support Plaintiff's complaint in a supplementary response is improper. Accordingly, the motion is denied as to interrogatory No. 4. C. Interrogatory No. 6: State in detail every fact Concerning your contention in Paragraph 194 of the Complaint that Humana ‘presented false claims, and made or used false records or statements material to false claims by submitting enrollment and PDE records to CMS for beneficiaries enrolled in the Walmart Plan,’ including what statements in each enrollment and/or PDE record are False. *11 (DN 167-3, at PageID # 3004). Humana argues Relator “has provided shifting responses to this Interrogatory over time”. (DN 167, at PageID # 2979.) Humana argues that Relator's first supplemental responses state that all of Humana's bids and claims for payment are false or fraudulent. (DN 167-4, at PageID #3034.) Humana argues that the current supplemental responses cite to a “PDE Stager File”. (DN 167-7, PageID #3107.) Further Humana argues none of Relator's responses address the allegedly false enrollment records in Complaint ¶194 and the responses do not identify what about the enrollment records are false. (DN 167, at PageID # 2979.) In opposition Relator argues that his answer has remained the same throughout the litigation, that each and every claim for payment that Humana submitted under its contracts was false because Humana obtained the contracts through fraud, and Relator's supplemental responses are no different. Relator claims he addressed the enrollment records as those records are encompassed in “all requests for payment” within the meaning of 42 C.F.R § 423.505(k)(1). (DN 186, at PageID # 11262.) The Court finds that Relator identified PDE records in Relator's first supplemental response at DN 167-4, at Page ID #3034. Humana fails to explain how a PDE Stager File differs from a PDE record. Relator lists enrollment information as part of the false information Humana supplied and upon which payments to a Part D sponsor are conditioned. (DN 167-4, at PageID #3034-3035.) Accordingly, the motion is denied as to interrogatory No. 6. II. MOTIONS TO SEAL A. Legal Standard Although the Sixth Circuit has long recognized a “strong presumption in favor of openness” regarding court records, there are certain interests that overcome this “strong presumption.” Rudd Equipment Co., Inc. v. John Deere Construction & Forestry Co., 834 F.3d 589, 593 (6th Cir. 2016) (citing Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir. 1983)). These interests include “certain privacy rights of participants or third parties, trade secrets, and national security.” Brown & Williamson Tobacco Corp., 710 F.2d at 1179. The party seeking to seal the records bears a “heavy” burden; simply showing that public disclosure of the information would, for instance, harm a company's reputation is insufficient. Id.; Shane Grp. Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016). Instead, the moving party must show that it will suffer a “clearly defined and serious injury” if the judicial records are not sealed. Shane Grp. Inc., 825 F.3d at 307. Examples of injuries sufficient to justify a sealing of judicial records include those that could be used as “sources of business information that might harm a litigant's competitive standing.” Nixon v. Warner Comm'ns, Inc., 435 U.S. 589, 598 (1978). In rendering a decision, the Court must articulate why the interests supporting nondisclosure are compelling, why the interests supporting public access are not as compelling, and why the scope of the seal is no broader than necessary. Shane Grp. Inc., 825 F.3d at 306. Importantly, the presumption that the public has the right to access judicial records does not vanish simply because all parties in the case agree that certain records should be sealed. Rudd Equipment Co., Inc., 834 F.3d at 595 (noting that although the defendant did not object to the plaintiff's motion to seal, his lack of objection did not waive the public's First Amendment and common law right of access to court filings); Shane Grp. Inc., 825 F.3d at 305 (“A court's obligation to keep its records open for public inspection is not conditioned on an objection from anybody.”) B. Discussion 1. Humana's Motion for Leave to File Under Seal Confidential Information Accompanying Humana's Motion to Compel Relator to Supplement his Response to Humana's First Set of Interrogatories (DN 165 re DN 166) *12 Humana moves for leave to file under seal excerpts of Relator's first supplemental responses to Humana's first set of interrogatories to Relator Steven Scott. (DN 166.) The first supplemental responses are attached as an exhibit to the concurrently filed motion to compel Relator to supplement his responses to Humana's first set of interrogatories. (DN 167.) Humana contends the excerpts it seeks to seal contain non-public proprietary information, business information and trade secrets that would cause substantive commercial harm to Humana if made public. (DN 165, at Page ID # 2889.) Humana claims that the information it seeks to seal falls into three categories: internal budgetary practices, internal bid practices, and initiatives to increase preferred use. Humana argues the excerpts provide insight into factors Humana may consider when formulating its budgetary projections, which competitors and business partners could use to gain an advantage over Humana in commercial negotiations. (DN 165-1 ¶6; DN 165 at Page ID # 2890.) Humana also argues the excerpts describe bid development, pricing practices, and the work of its actuarial consultant Milliman. (DN 165, at PageID # 2890.) Humana contends this information could be used by competitors to tailor their own Part D pricing strategy and put Humana at a disadvantage in the Medicare Part D market. (DN 165-1 ¶7; DN 165 at PageID # 2890.) Lastly, Humana argues Relator's responses include information concerning business initiatives Humana designed to increase its beneficiaries' utilization of pharmacies in the Walmart Plan's preferred network. (DN 165, at PageID # 2891.) Humana contends this information could give Humana's competitors an unfair commercial advantage by allowing competitors to derive insights into Humana's unique processes for increasing preferred pharmacy utilization without incurring Humana's substantial development expenses. (DN 165-1 ¶8.) Humana argues the request is narrowly tailored since it is moving to seal the responses in part and not in the entirety. In opposition, Relator contends that Humana has no basis to redact any portion of his first supplemental responses to Humana's first set of interrogatories as they have not asserted a compelling reason. (DN 188 at PageID # 11343.) Relator argues the information Humana seeks to seal is not proprietary information pertaining to bid or budget practices, but it is “outdated and generalized information, predominantly relating to failed preferred utilization initiatives that were abandoned several years ago, which could be harmful to its reputation.” (DN 188, at PageID # 11344.) Relator contends the Complaint describes these initiatives and the initiatives were not trade secrets as they were directed at consumers. (DN 188, at Page ID # 11348.) Relator argues that the disclosure of Humana's initiatives which had no effect and were abandoned several years ago would not harm its competitive standing. (DN188, at PageID # 11348.) Relator argues the excerpts do not relate to the development or operation of any particular initiative but instead comprise only generalized statements about the aggregate failure of Humana's initiatives. (DN188, at PageID # 11348.) Relator also argues the excerpts which Humana seeks to seal relate to the core allegations of the case and the public has a significant interest in this information. (DN 188, at PageID # 11345.) In reply, Humana argues they seek to redact fewer than three total pages of text from a 72 page exhibit. (DN 191 at PageID #11365.) Humana argues the excerpts include its proprietary pharmacy utilization data, a description of the internal process it uses to develop the Medicare Part D bids, and confidential contact with its actuarial consultant. (DN 191, at PageID # 11367.) *13 The Court recognizes that the public interest in these responses is high. The responses Humana seeks to seal go to the merits of the case as they are Relator's responses to contention interrogatories substantiating the allegations in the Complaint. Humana argues it would be harmed if the responses are not sealed since competitors could use the information to undercut Humana's competitive standing in generating Medicare Part D bids. However, upon the Court's review of responses in DN 166 at 54-55, 55-56, 58, 59 and 61, the Court finds the information Humana seeks to seal does not contain information that would harm Humana's competitive standing in the marketplace, only information that might be harmful to its reputation. See Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir. 1983) (“simply showing that the information would harm the company's reputation is not sufficient to overcome the strong common law presumption in favor of public access to court proceedings and records.”) The Court is not persuaded that there is a compelling reason to seal the documents, regardless of how narrowly tailored the request is. Accordingly, Humana's motion for leave to file under seal confidential information accompanying Humana's motion to compel Relator to supplement his response to Humana's first set of interrogatories is DENIED. (DN 165.) 2. Relator's Motion for Leave to File Under Seal Relator's Opposition to Defendant Humana Inc.'s Motion to Compel Relator to Supplement his Response to Humana's First Set of Interrogatories Provisionally (DN 185 re DN 186) Relator moves for leave to file under seal his opposition to Humana's motion to compel Relator to supplement his responses to Humana's first set of interrogatories. (DN 186.) Relator states that pursuant to a confidentiality stipulation, “Relator is filing his Motion provisionally under seal and Humana is then required to ‘submit a brief to the Court as to why sealing is required and whether redaction could eliminate or reduce the need for sealing.” (DN 185, at PageID # 11243.) Relator makes no other arguments in support of his motion. In response, Humana simply states that it does not oppose the instant motion since DN 186 “include[s] discovery responses and correspondence between the parties that may divulge proprietary trade secrets, business information, or otherwise commercially sensitive data that if made public would cause Humana substantive commercial harm.” (DN 189 at Page ID # 11359.) Humana contends that it will file a motion seeking leave to permanently seal narrowly tailored portions of Relator's Opposition, and exhibits attached thereto, and Humana will elaborate in its forthcoming motion the basis for the seal. (DN 189, at Page ID #11360.) Accordingly, the Court finds that neither party has persuaded the Court that a compelling interest exists to seal DN 186 at this time. Accordingly, Relator's motion for leave to file Relator's opposition to Defendant Humana Inc.'s motion to compel Relator to supplement his response to Humana's first set of interrogatories provisionally under seal (DN 185) is DENIED WITHOUT PREJUDICE. DN 186 shall remain PROVISIONALLY SEALED pending further notice from the Court in light of pending motion DN 218. 3. Relator's Motion For Leave to File Under Seal Relator's Opposition to Humana's Motion to Seal Information Accompanying its Motion to Compel Relator to Supplement his Response to Humana's First Set of Interrogatories Provisionally (DN 187 re DN 188) Relator moves for leave to file under seal his opposition to Humana's motion to seal information accompanying its motion to compel Relator to supplement his response to Humana's first set of interrogatories (DN 188). Relator states that pursuant to a confidentiality stipulation he is filing the motion under seal and “Humana is then required to submit a brief to the Court as to why sealing is required and whether redaction could eliminate or reduce the need for sealing.” (DN 187 at PageID # 11339.) Relator explicitly states he does not believe that any portion of the Opposition should be filed permanently under seal. (DN 187 at Page ID #11340.) *14 In response, Humana states that it does not oppose Relator's motion to seal (DN 187), since DN 188 may “divulge proprietary trade secrets, business information, or otherwise commercially sensitive data that if made public would cause Humana substantive commercial harm.” (DN 190 at Page ID # 11363.) Humana contends it will file a motion seeking leave to permanently seal portions of DN 188 and will elaborate in its forthcoming motion on the basis for the redactions. Id. Accordingly, the Court finds that neither party has persuaded the Court that a compelling interest exists to seal DN 188 at this time. Accordingly, Relator's motion for leave to file under seal Relator's opposition to Humana's motion to seal information accompanying its motion to compel Relator to supplement his response to Humana's first set of interrogatories (DN 187) is DENIED WITHOUT PREJUDICE. DN 188 shall remain PROVISIONALLY SEALED pending further notice from the Court in light of pending motion DN 218. III. ORDER For the reasons set forth above, IT IS HEREBY ORDERED as follows: (1) Humana's Motion to Compel Relator to Supplement his Response to Humana's First Set of Interrogatories. (DN 167) is GRANTED IN PART and DENIED IN PART. a. The motion to compel is GRANTED as to interrogatories No. 9 and 12. b. The motion to compel is GRANTED IN PART as to interrogatories No. 7, 8, 14, 15 and 18. Relator is ordered to supplement his responses to interrogatories No. 7, 8, 14, 15 and 18 to identify the responsive portions of the deposition testimony. c. The motion to compel is DENIED as to interrogatories No. 1, 2, 3, 4, 6, 16, and 17. (2) Humana's Motion for Leave to File Under Seal Confidential Information Accompanying Humana's Motion to Compel Relator to Supplement his Response to Humana's First Set of Interrogatories (DN 165) is DENIED. DN 166 shall be unsealed by the Clerk. (3) Relator's Motion for Leave to File Relator's Opposition to Defendant Humana Inc.'s Motion to Compel Relator to Supplement his Response to Humana's First Set of Interrogatories Provisionally Under Seal (DN 185) is DENIED WITHOUT PREJUDICE. (4) Relator's Motion For Leave to File Relator's Opposition to Humana's Motion to Seal Information Accompanying its Motion to Compel Relator to Supplement his Response to Humana's First Set of Interrogatories Provisionally Under Seal (DN 187) is DENIED WITHOUT PREJUDICE. (5) DN 186 and DN 188 shall remain PROVISIONALLY SEALED pending further notice from the Court.