UNITED STATES OF AMERICA, ex rel. PATRICK GRIFFIS, and PATRICK GRIFFIS, individually, Plaintiffs, v. EOD TECHNOLOGY, INC. (N/K/A JANUS GLOBAL OPERATIONS LLC), Defendant No. 3:10-CV-204-TRM-DCP United States District Court, E.D. Tennessee, Northern Division Filed April 23, 2024 Poplin, Debra C., United States Magistrate Judge MEMORANDUM AND ORDER *1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02. Now before the Court is Defendant's Motion to Compel the Department of Justice to Provide an Adequate Privilege Log and Comply with Defendant's Subpoena for Documents and Deposition (“Motion to Compel DOJ”) [Doc. 191],[1] Relator's Motion for Protective Order [Doc. 202], and Defendant's Cross Motion to Compel (“Cross Motion”) [Doc. 208]. On March 14, 2024, the parties appeared before the Court for a motion hearing. Attorney Lynzi Archibald appeared on behalf of Relator. Attorneys Jennifer Short, David Eldridge, and Alex Hassid appeared on behalf of Defendant. Assistant United States Attorneys Robert McConkey, III, and Ben Cunningham appeared on behalf of the United States. For the reasons set forth below, the Court GRANTS IN PART AND HOLDS IN ABEYANCE IN PART the Motion to Compel the DOJ [Doc. 191] and GRANTS IN PART AND DENIES IN PART Relator's Motion for Protective Order [Doc. 202] and Defendant's Cross Motion [Doc. 208]. I. BACKGROUND This claim largely arises out of the False Claims Act (“FCA”), 31 U.S.C. §§ 3729 et seq. [Doc. 112 ¶¶ 269–73; 311–38].[2] Plaintiff filed his sealed Complaint on May 4, 2010 [Doc. 1]. As the parties acknowledge, “Relator's original complaint focused on domestic travel and lodging fraud, material handling rate fraud on a contract known as Contract 18, Task Order 21, and discrete claims that [Defendant] violated the FCA via violating the International Trafficking in Arms (“ITAR”) restrictions, and by paying bribes to foreign officials in violation of the Foreign Corrupt Practices Act (“FCPA”)” [Doc. 215 pp. 2–3 (quoting Doc. 156 pp. 5–6)]. On October 25, 2015, the Government declined to intervene [Doc. 31], and on November 4, 2015, the Court lifted the seal on this case [Doc. 32]. Before Relator served Defendant with the Complaint, he moved to file an amended Complaint and to seal the case, which the Court granted on September 29, 2017 [Doc. 71]. On October 4, 2017, Relator filed the sealed First Amended Complaint [Doc. 74]. The First Amended Complaint related to “newly alleged contracts includ[ing] TWISS I, the Rusafa Contract, and Task Orders 5, 6, 18, and 26 under Contract 18” [Doc. 215 p. 3 (citation omitted)]. The Government investigated these new allegations, and on August 9, 2022, Relator filed a Second Amended Complaint [Doc. 112], “drop[ping] the allegations regarding ITAR violations and material-handling fraud but retain[ing], among others, those concerning travel and lodging fraud” [Doc. 215 p. 3 (citation omitted)]. On January 9, 2023, the Government declined to intervene [Doc. 121], and on January 20, 2023, this case was unsealed [Doc. 125]. *2 Pending before the Court is Defendant's Motion to Compel the DOJ to produce the Government's interview summaries of Relator and Relator's written disclosures [Doc. 191], Relator's Motion for Protective Order preventing Defendant from discovering his interviews with the Government and his written disclosure statements [Doc. 202], and Defendant's Cross Motion to compel production of Relator's interviews, written disclosure statements, and his communications with the Government [Doc. 208]. Defendant adds that Relator did not produce an adequate privilege log [Id.]. Following the hearing, the Court entered an Order (“March 14 Order”) directing, in relevant part, that (1) the DOJ provide Defendant with a list of the Relator's interviews that it possesses, and (2) Relator and Defendant meet and discuss the additional items that should be included in Relator's privilege log [Doc. 223 pp. 2–3]. The Court ordered the parties to file a status report on or before March 22, 2024 [Id. at 3]. On March 22, 2024, the parties filed the Joint Status Report Concerning Discovery [Doc. 225]. First, Relator and Defendant agreed to the contents of a privilege log but were still discussing the timeframe for when Relator would produce it [Id. at 1–2]. Second, the DOJ had produced a list of three interviews of Relator that the Government conducted in 2010 [Id. at 2].[3] During a status conference on April 9, 2024, Relator reported that he would provide an updated privilege log on April 15, 2024 [Doc. 230 p. 1]. Considering the above, the Court will not address the arguments raised in the briefs regarding Relator's privilege log.[4] The narrow issues before the Court are whether Defendant is entitled to (1) the summaries of Relator's interviews with the Government, (2) Relator's written disclosures statements, and (3) communications with the Government, in light of the DOJ's and Relator's assertions of the work-product doctrine and the common-interest/joint-prosecutorial privileges. II. STANDARD OF REVIEW As mentioned above, Defendant filed a motion to compel against the DOJ, Relator filed a motion for protective order, and Defendant filed a cross motion. These motions largely relate to the DOJ's and Relator's privilege assertions. A. Motion to Compel Under Rule 37(a) of the Federal Rules of Civil Procedure, a party may move to compel discovery of relevant information. Shelbyville Hosp. Corp. v. Mosley, No. 4:13-CV-88, 2017 WL 1155046, at *2 (E.D. Tenn. Mar. 27, 2017) (citing Fed. R. Civ. P. 37(a)). The party moving to compel “bears the initial burden of proving that the information sought is relevant[.]” Id. (quoting Gruenbaum v. Werner Enters., Inc., 270 F.R.D. 298, 302 (S.D. Ohio 2010)). Once the party shows relevancy, “the burden shifts to the party resisting discovery to demonstrate ‘why the request is unduly burdensome or otherwise not discoverable.’ ” First Horizon Nat'l Corp. v. Houston Cas. Co., No. 2:15-CV-2235-SHL-DKV, 2016 WL 5869580, at *4 (W.D. Tenn. Oct. 5, 2016) (quoting Anderson v. Dillard's, Inc., 251 F.R.D. 307, 310 (W.D. Tenn. 2008)). B. Motion for Protective Order Rule 26(c) governs protective orders, which provides, “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding the disclosure or discovery.” Fed. R. Civ. P. 26(c)(1)(A). “To show good cause, a movant for a protective order must articulate specific facts showing ‘clearly defined and serious injury’ resulting from the discovery sought and cannot rely on mere conclusory statements.” Nix v. Sword, 11 F. App'x 498, 500 (6th Cir. 2001) (quoting Avirgan v. Hull, 118 F.R.D. 252, 254 (D.D.C. 1987)). The party requesting the protective order has the burden of establishing good cause. Id. C. Privileges *3 The work-product doctrine was first adopted by the by the Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1997) that explained: [I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. Id. at 510–11. It is now codified in Rule 26(b)(3)(A), which states that, with certain exceptions, a party may not ordinarily “discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). In order to determine whether documents were prepared in anticipation of litigation, the Court must determine “(1) whether a document was created because of a party's subjective anticipation of litigation, as contrasted with an ordinary business purpose, and (2) whether that subjective anticipation of litigation was objectively reasonable.” United States v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006). “Courts have generally found there are two types of work product: opinion and fact work product.” Schilling Foods, LLC v. First Data Corp., No. 218CV02320MSNATC, 2021 WL 5154242, at *4 (W.D. Tenn. June 24, 2021) (citation omitted). “Fact work product” relates to the “written or oral information transmitted to the attorney and recorded as conveyed by the client.” In re Antitrust Grand Jury, 805 F.2d 155, 163 (6th Cir. 1986) (citation omitted). While privileged, the opposing party may obtain such information “upon a showing of substantial need and inability to otherwise obtain [the information] without hardship.” In re Columbia/HCA Healthcare Corp. Billing Pracs. Litig., 293 F.3d 289, 294 (6th Cir. 2002) (citation omitted). “Opinion work product” refers to “any material reflecting the attorney's mental impressions, opinions, conclusions, judgments, or legal theories.” In re Antitrust Grand Jury, 805 F.2d at 163–64 (citations omitted). An opposing party cannot obtain opinion work product “absent waiver[.]” In re Columbia/HCA Healthcare Corp. Billing Pracs. Litig., 293 F.3d at 294 (citation omitted); see also Fed. R. Civ. P. 26(b)(3)(B) (explaining that if the court orders the production of work product, “it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation”). The common interest privilege is not a standalone privilege, but instead operates to extend the attorney-client or work-product privilege. In re Com. Money Ctr., Inc., Equip. Lease Litig., 248 F.R.D. 532, 536 (N.D. Ohio 2008). “[T]he common interest doctrine provides that ‘attorneys facing a common litigation opponent may exchange privileged communications and attorney work product ... without waiving either privilege.’ ” Id. (quoting Schachar v. Am. Acad. of Ophthalmology, Inc., 106 F.R.D. 187, 191 (N.D. Ill. 1985)). The party asserting the privilege “must prove an agreement among its members to share information arising out of a common legal interest in litigation.” John B. v. Goetz, 879 F. Supp. 2d 787, 898 (M.D. Tenn. 2010) (citation omitted). “[T]he common interest [privilege] does not require or imply that an actual suit is or ever will be pending.” Broessel v. Triad Guar. Ins. Corp., 238 F.R.D. 215, 220 (W.D. Ky. 2006) (quoting Duplan Corp. v. Deering Milliken, 397 F. Supp. 1146 (D.S.C. 1974)). *4 Finally, the joint-prosecutorial privilege or the joint-defense privilege, depending on which party is relying on it,[5] “is an extension of the attorney-client privilege and protects confidential communications among defendants and their counsel, where defendants are ‘part of an on-going and joint effort to set up a common defense strategy.’ ” John B., 879 F. Supp. 2d at 898 (quoting Haines v. Liggett Group, Inc., 975 F.2d 81, 94 (3d Cir. 1992)).[6] III. ANALYSIS First, neither Relator nor the Government has established that the Government interview summaries contain opinion work product. To the extent they contain fact work product, the Court finds that Defendant has established a substantial need for them and that it cannot without undue hardship obtain the substantial equivalent by other means. Second, after conducting an in-camera review, the Court finds portions of Relator's May 5, 2010 written disclosure discoverable but declines to order the production of the remaining written disclosures. Third, considering the Relator's updated privilege log, the Court orders the parties to meet and confer to determine if they are still at an impasse over Relator's communications to/from the Government. A. Government Summaries of Relator's Interviews The DOJ asserts that the summaries of interviews with Relator were prepared with the purpose of “assess[ing] the allegations and inform[ing] the DOJ's analysis of whether the United States should intervene and prosecute the action” [Doc. 200 p. 6 (citation omitted)].[7] The DOJ argues that Defendant cannot make a showing that it substantially needs the interview summaries. Relator asserts that that his interviews with the Government are protected by the attorney-work product doctrine and the common-interest doctrine given that the interviews took place after he filed his lawsuit [Doc. 202 p. 16]. He argues that the interview reports were “prepared by the government solely in anticipation of litigation and contains the government's impressions of which facts are relevant and support the claims that [Defendant] violated the FCA” [Id. (citation omitted)]. According to Relator, “[c]ourts considering whether such materials documenting pre-trial communications between government representatives and relators in FCA actions have found that those materials are protected” [Id. (citations omitted)]. Relator claims that Defendant does not have a substantial need for this information. Defendant argues that the DOJ has produced other summaries of witness interviews, and therefore, summaries of Relator's interviews should be no different [Doc. 206 p. 6].[8] Defendant denies the interview summaries are privileged but argues that even if the work-product privilege applies, it has a substantial need for these interviews to determine whether the claims against it are barred by the statute of limitations. In cases where the Government does not intervene, Defendant asserts that there is potential for the Relator's and Government's interests to diverge. *5 As an initial matter, the Court notes that the DOJ is only asserting fact work product [Doc. 200 pp. 6–7]. Relator, however, appears to assert opinion work product [see Doc. 202 p. 16 (stating that the interview summaries “contain[ ] the government's impressions of which facts are relevant and support [the claims] that [Defendant] violated the FCA”)] and fact work product [See id. at 18–19 (arguing that Defendant has not established a substantial need for the interview summaries)]. Since the hearing, the DOJ has produced to the Court and to the parties a list of Relator's interviews that it possesses: (1) a June 11, 2010 interview with the United States Army Criminal Investigation Command (“CID”); (2) a November 15, 2010 interview with the United Staes Department of State, Office of Inspector General, and (3) a December 1, 2010 interview with the CID. With respect to opinion work product, the Court notes that none of the interviews were conducted by an attorney. See In re HealthSouth Corp. Sec. Litig., 250 F.R.D. 8, 12 (D.D.C. 2008) (relying, in part, on the fact that the law firm “neither crafted nor asked the questions” in concluding that the firm's interview summaries were “fact” work product); see also Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 303, 306 (E.D. Mich. 2000) (“It is well settled that the work-product doctrine protects only those materials prepared by or for a party or its representative.”).[9] And while that fact is not dispositive, neither the DOJ nor Relator has provided any evidence that the interview summaries contain the government's impressions. United States v. Clemens, 793 F. Supp. 2d 236, 256 (D.D.C. 2011) (“[B]ecause the law firm is unable to represent with reasonable certainty the extent of the government's involvement in these interviews and which responses it recorded were the product of government questioning, the Court must conclude that the interview memoranda and initial interview notes constitute “fact,” rather than “opinion,” work product.”); In re PEPCO Emp't Lit., Civil Action No. 86–0603, 1992 WL 310781, at *4 (D.D.C. Oct. 2, 1992) (noting that the party seeking work-product protection has the burden of “provid[ing] facts sufficient to support a judicial determination of the ‘fact’ or ‘opinion’ nature of the work product”); see also United States v. Bertie Ambulance Serv., Inc., No. 2:14-CV-53-F, 2015 WL 3932167, at *5 (E.D. N.C. June 25, 2015) (“In regards to witness interview memorandum, courts look at whether the content of the memorandum has been ‘sharply focused or weeded’ by counsel.” (quoting U.S. Ex. Rel. Landis v. Tailwind Sports Corp ., 303 F.R.D. 429, 431 (D.D.C. 2014)); Little Hocking Water Assn., Inc. v. E.I. Du Pont De Nemours & Co., No. 2:09-CV-1081, 2013 WL 607969, at *10 (S.D. Ohio Feb. 19, 2013) (finding that the defendant did not meet its burden to show that the non-attorney's notes contained the mental impression of its counsel), aff'd sub nom. Little Hocking Water Ass'n, Inc. v. E.I. Du Pont de Nemours & Co., No. 2:09-CV-1081, 2014 WL 5857994 (S.D. Ohio Nov. 12, 2014).[10] Given that there are no facts to support any claim that the interview summaries of Relator constitute opinion work product, the Court will now turn to whether the DOJ or Relator have met the burden to show that they constitute fact work product. In order for materials to qualify for the protection of the work-product doctrine, the party asserting the privilege must establish: “(1) documents and tangible things; (2) prepared in anticipation of litigation or for trial; (3) by or for another party or its representatives.” In re Pros. Direct Ins. Co., 578 F.3d 432, 438 (6th Cir. 2009) (cleaned up). “A witness interview memorandum prepared in anticipation of litigation can constitute attorney work product.” United States ex rel. Landis v. Tailwind Sports Corp., 303 F.R.D. 429, 430 (D.D.C. 2014) (citation omitted); United States v. Medica-Rents Co., No. CIV.A. 4:00-CV-483-Y, 2002 WL 1483085, at *2 (N.D. Tex. June 21, 2002) (“[T]he work-product doctrine clearly applies to the disputed documents as they are either memoranda written from one or both of the relators to the United States and its representatives or were summaries or ‘follow-ups’ to meetings between the relators and the United States and its representatives during the time in which the United States was deciding whether to intervene in the case.” (footnote omitted)). *6 There does not appear to be a dispute that the interview summaries constitute documents. The parties also do not appear to dispute that the interview summaries were prepared in anticipation of litigation given that Relator had filed his original Complaint on May 4, 2010 [Doc.1], and the interviews were conducted shortly thereafter. The Court notes, however, that special agents drafted the interview summaries of Relator. While material can be protected as work product even if drafted by a non-attorney, see Bard v. Brown Cnty., No. 1:15-CV-00643, 2017 WL 3129802, at *3 (S.D. Ohio July 21, 2017), aff'd, No. 1:15-CV-643, 2017 WL 4533618 (S.D. Ohio Oct. 11, 2017), there is no evidence before the Court that the special agents who prepared these summaries were supervised by or acting at the direction of an attorney or that they were acting as a DOJ's representative. See Fed. R. Civ. P. 26(b)(3)(A) (stating that a party may not discover documents “prepared in anticipation of litigation or trial by or for another party or its representative”). And neither the DOJ nor Relator has explained whether these different agencies actually fall under the umbrella of the DOJ. Cf. SEC v. Strauss, No. 09 CIV. 4150, 2009 WL 3459204, at *6 (S.D.N.Y. Oct. 28, 2009) (“[T]o the extent that [the defendant] is seeking notes and memoranda prepared by staff members of the SEC who are not attorneys, his arguments come closer to hitting the mark, but do not quite succeed. According to the evidence currently before [the court], the non-attorneys who prepared notes of interviews were supervised by and acting at the direction of an attorney.”).[11] But even if the interview summaries constitute fact work product,[12] the Court finds that Defendant has demonstrated a substantial need for the three interview summaries of Relator, which cannot be obtained elsewhere. Defendant argues that it “seeks to discover what facts the government knew and when it knew (or should have known) those facts” [Doc. 191 p. 13]. Citing to a search warrant the Government executed on its offices in December 2010, Defendant states that agents “left behind lists of witnesses, topics, and items that covered much of the same ground now in dispute” [Id. at 14 (citation omitted)]. Defendant adds: The Department of Defense produced documents responsive to an EODT subpoena in this case which similarly suggest that the government's 2010-2015 investigation touched upon, inter alia, “direct and indirect charging,” “vendor invoicing,” and “costs and expenses used to calculate rates,” under Contract 18—the same issues and the same contract that became part of Relator's [Second Amended Complaint]. Among Relator's document productions are Army memoranda showing that the government examined all but one of the contracts identified in the SAC during its initial investigation of this matter and concluded that there was “insufficient evidence” to pursue any claims. [Id. (citation omitted)]. The DOJ argues that Defendant should first depose Relator before seeking its protected material [Doc. 200 p. 7]. Relator states that “[Defendant] has also not shown why the other materials to which it has access—including those to which it cites as purported evidence of its potential timeliness defense—are insufficient” [Doc. 202 p. 18]. Relator adds that Defendant has “cherry-picked search terms supposedly left by the government following its raid on [Defendant's] headquarters and ‘possible’ search-warrant items” [id. at 17 (citation omitted)] in an effort to relate those terms and items to potential evidence of the Government's knowledge about “[Defendant's sophisticated accounting fraud two years before Relator alleged the same in his first amended complaint.” [Id.]. Relator provides the following explanation as to why such terms and items would have been included in the government's original investigation that he contends was “limited in scope to the ITAR and FCPA violations, and the travel, lodging, and material-rate handling fraud” [Id.]. Relator asserts: *7 Within the context of Relator's ITAR, FCPA, and travel and material-rate-handling fraud allegations, it is unsurprising that the government might include terms and items related to the armed security contracts and purported security providers connected to those bribes and arms violations. Similarly, the material-rate handling fraud and travel and lodging fraud allegations would have prompted search items concerning travel and material handling costs. The original complaint references many of these terms and concepts, and the Court has already held that “there was nothing in the original complaint ... that would put the Government on notice that it needed to inquire into the existence of certain subcontractors listed in contract documents or the labor rates charged.” [Id. (citations omitted)]. The Court agrees with Defendant that a deposition of Relator is not a viable option as “using a deposition to assess the basis of ... Relator's knowledge is entirely different from attempting to elicit the precise facts Relator shared with the Government and the specific dates when Relator conveyed such information as needed to develop a statute of limitations defense” [Doc. 208 p. 18]. And given the length of time that this case has been pending (i.e., 14 years), the Court has serious concerns whether Relator “could be expected to recall in sufficient detail what [he] conveyed to DOJ and when about each specific allegation across three separate complaints involving nearly thirty contracts and numerous witnesses and subcontractors ... over a thirteen-year period” [Id.]. See United States v. Life Care Centers of Am., Inc., No. 1:08-CV-251, 2015 WL 10987030, at *5 (E.D. Tenn. Apr. 29, 2015) (noting that a “significant time period−of five to six years−has passed since [the witnesses] were interviewed, which will likely prevent [the] [d]efendant from obtaining equivalent information from the interviewees themselves”); United States ex rel. Branch Consultants, LLC v. Allstate Ins. Co., No. 06-4091, 2010 WL 11627441, at *4 (E.D. La. May 12, 2010) (depositions “more than three years after suit” are “not a reliable means of providing the [defendants] with what [relator] knew when it filed suit”). Relator claims that Defendant has “cherry picked” search terms. But Defendant has explained how difficult discovery has been considering the age of this case [See, e.g., Doc. 191-8 p. 15 (noting that files have been destroyed)]. At the hearing, Defendant explained how deponents could not recollect information given the passage of time and that agencies had a difficult time finding people with relevant knowledge about the case. The DOJ acknowledged at the hearing some of these discovery issues considering the case's age. In addition, according to Defendant, “the [G]overnment had notice of key players underlying Relator's operative claims, including Al Hurea and Emad Raheem” [Doc. 217 p. 9 (citing Doc. 191-12)], and one deponent testified that when the Government interviewed him in 2012 or 2013, they discussed Defendant's subcontractors like IST, although the witness could not recall specifically what the Government had asked [Id. at 9–10 (citing Doc. 217-1 p. 2)]. The Court therefore finds that Defendant has established that it substantially needs Relator's interviews with the Government and that it cannot obtain discovery by other means without undue hardship. See Fed. R. Civ. P. 26(b)(3)(A)(ii). Based on the above, the Court GRANTS Defendant's request to compel the DOJ to produce the interview summaries of Relator that it possesses. The Court therefore declines to enter Relator's protective order prohibiting Defendant from obtaining this discovery. The DOJ SHALL produce the summaries of Relator's interviews within five (5) days of this Order. B. Written Disclosures *8 Defendant claims that Relator's written disclosure statements are not confidential but simply a requirement to bring a FCA case pursuant to 31 U.S.C. § 3730(b)(2) [Doc. 191 p. 17]. According to Defendant, written disclosures should only contain facts and not counsel's opinions [Id. (citation omitted)]. Other courts, Defendant states, have held that a relator's disclosure statements are discoverable [Id. (citations omitted)]. Defendant argues, “Relator's disclosure statements are the most probative evidence as to what information Relator made known to the [G]overnment in 2010 and hereafter” [Id. at 18 (emphasis omitted)]. DOJ asserts that Relator's disclosure statements are protected by the work-product doctrine and that some courts have applied the attorney-client privilege as well [Doc. 200 p. 8].[13] The DOJ argues that the common interest or joint-prosecutorial privileges protects written disclosure statements, even when the Government declines to intervene [Id. at 8–9 (citations omitted)]. It further asserts that “there are compelling public policy and enforcement reasons not to disclose DOJ's communications with these individuals insofar as it would discourage some relators from serving as whistleblowers or chill their willingness to reveal certain sensitive information, which would undermine [c]ongressional intent in exposing and successfully prosecuting public fraud” [Id. at 9]. Ultimately, however, the DOJ states that any privilege arguments are between Relator and Defendant and that to the extent the Court orders production, it should order Relator to produce them [Id. at 8, n.5]. Relator claims his written disclosures to the Government are protected under the work-product doctrine, the common interest doctrine, and the joint-prosecutorial privilege [See Doc. 202 pp. 6–15]. Relator argues that Defendant “cannot discover [his] written disclosures because they are protected attorney work prepared solely in anticipation of or in the course of litigation and reflect the opinions and legal theories of Relator's counsel” [Id. at 6–7]. Relator submits there are “[p]olicy considerations” that “support protecting [his] written disclosures from discovery by [Defendant]” and that Defendant has not shown a substantial need for them [Id. at 8–11]. Defendant notes that courts have permitted defendants access to the factual material within a disclosure statement [Doc. 208 p. 14]. Further, Defendant contends that its substantial need for this material outweighs any work-product claim [Id. at 16–19]. Pursuant to 31 U.S.C. § 3730(b), “A person may bring a civil action for violation of section 3729 for the person and for the United States Government.” In addition, “[a] copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the Government pursuant to Rule 4(d)(4)[.]” Id. The purpose of this statute is “to provide the Government with enough information on the alleged fraud so as to enable it to make an informed decision about whether to participate in the action or allow the relator to proceed on his own.” United States ex rel. Heesch v. Diagnostic Physicians Grp., P.C., No. CV 11-00364, 2014 WL 12603138, at *2 (S.D. Ala. June 4, 2014) (citation omitted). “The FCA does not address whether the disclosure statement provided to the government is discoverable.” U.S. ex rel. Yannacopoulos v. Gen. Dynamics, 231 F.R.D. 378, 381 (N.D. Ill. 2005) (citation omitted). The Court therefore applies the Federal Rules of Civil Procedure to determine if it is discoverable. Id.; see also Diagnostic Physicians Grp., P.C., 2014 WL 12603138, at *2 (“Because the statute is silent with respect to whether the disclosure statement is to be protected from disclosure, courts typically utilize the federal rules relating to discovery and make the disclosure determination on a case[-]by[-]case basis.”). *9 “[T]he majority of courts have found that the written disclosure statement provided in compliance with the FCA falls under the work-product doctrine as a document prepared in anticipation of litigation, or have applied the principles of ordinary work product when analyzing whether the disclosure statement is discoverable.” Bingham v. Baycare Health Sys., No. 8:14-CV-73, 2016 WL 1546504, at *4 (M.D. Fla. Apr. 15, 2016) (collecting cases). But there is some disagreement concerning “whether disclosure statements are entirely fact work product, entirely opinion work product, or a combination of the two.” United States ex rel. Calilung v. Ormat Indus., Ltd., No. 314CV00325, 2015 WL 13709969, at *2 (D. Nev. Dec. 23, 2015); cf. United States ex rel. Bagley v. TRW Inc., 212 F.R.D. 554, 564–65 (C.D. Cal. 2003) (holding disclosure statements are always opinion work product); U.S. ex rel. McArtor v. Rolls-Royce Corp., No. 1:08-CV-0133, 2011 WL 5178361, at *6 (S.D. Ind. Oct. 31, 2011) (“Given the statutory purpose of disclosure statements and the fact in this case that they were written by the relators’ counsel, those statements ... are likely work product within the meaning of Fed. R. Civ. P. 26(b)(3)[.]”) with United States ex rel. Burns v. A.D. Roe Co., Inc., 904 F. Supp. 592 (W.D. Ky. 1995) (holding that where the disclosure statement consisted of factual information, and the defendant demonstrated a substantial need for the information and could not without undue hardship obtain the substantial equivalent by other means, disclosure statement must be produced). Recently, courts have taken two approaches: “(1) following an in camera review, order that the disclosure statement be produced with the opinion work product redacted, or (2) assume the disclosure statement contains at least fact work product, and deny discovery if the defendant fails to show a substantial need or undue hardship[.]” Ormat Indus., Ltd., 2015 WL 13709969, at *3 (citations omitted). In this case, the Court has elected to conduct an in-camera review of Relator's written disclosure statements.[14] Relator produced eight separate files for the Court's in-camera review.[15] Relator included several cover letters that are not relevant to the issues in this case, and therefore, the Court will not order him to produce those. See Fed. R. Civ. P. 26(b)(3) (stating that work product may be produced if it is discoverable under Rule 26(b)(1)). Relator also included several draft complaints, and the Court finds such drafts constitute opinion work product, and therefore, it will not order the production of those. Jud. Watch, Inc. v. U.S. Dep't of Just., 800 F. Supp. 2d 202, 212 (D.D.C. 2011) (finding draft pleadings were attorney work product); Gucci Am., Inc. v. Guess?, Inc., 271 F.R.D. 58, 78 (S.D. N.Y. 2010) (“The draft complaints, presumably drafted by [the plaintiffs'] outside attorneys, are privileged from disclosure.”); United States ex rel. Samandi v. Materials & Electrochemical Rsch. Corp., No. CV 05-124 TUC DCB, 2009 WL 10690273, at *7 (D. Ariz. July 14, 2009) (finding that a draft complaint constituted opinion work product).[16] The remaining documents are as follows: *10 February 17, 2017 Disclosure. This disclosure was written by Relator's former counsel on behalf of Relator. It largely contains counsel's analysis and theories of the case, and therefore, is not discoverable. United States ex rel. Samandi v. Materials & Electrochemical Rsch. Corp., No. CV 05-124, 2009 WL 10690273, at *7 (D. Ariz. July 14, 2009) (“While some factual narrative exists, which might be isolated for disclosure, for the most part, the factual recitations are intermixed with or reflect mental impressions, conclusions, opinions, or legal theories of the relator or his attorney.”). The Court further does not find that this privilege has been waived by sharing it with the DOJ. United States v. Homeward Residential, Inc., No. 4:12-CV-461, 2015 WL 4610284, at *3 (E.D. Tex. July 31, 2015) (“A number of courts have held that relators’ disclosure statements are protected by the “common interest” or “joint prosecution” privilege.” (citation omitted)); U.S. ex rel. Burroughs v. DeNardi Corp., 167 F.R.D. 680, 686 (S.D. Cal. 1996) (“[I]f the government can enjoy the protection of the work product doctrine in a case where it did intervene, there does not appear to be any appropriate rationale for denying the same protection to a plaintiff where the government does not intervene.”); United States v. Austin Radiological Ass'n, No. A-10-CV-914, 2013 WL 1136668, at *13 (W.D. Tex. Mar. 18, 2013) (finding communications between relator and the government entity protected under the joint prosecutorial privilege even though the government declined to interview), order clarified sub nom. U.S. ex rel. Simms v. Austin Radiological Ass'n, 292 F.R.D. 378 (W.D. Tex. 2013). With respect to the factual work product contained therein, the Court does not find Defendant has met its burden in showing a substantial need for this information. Defendant states that it needs to discover facts about its statute of limitations defense, but this document was created in February 2017—well after the statute of limitations of October 4, 2014. And because the Court has ordered that the DOJ produce its interviews with Relator that were conducted in 2010 and portions of his May 5, 2010 disclosure, see infra pp. 20–23, the undersigned finds there is no substantial need for this document. See Fed. R. Civ. P. 26(b)(3). In addition, Defendant states that “[t]o defend itself against Relator's substantive claims, [it] is entitled discover what Relator conveyed to the Government per his statutory obligations” [Doc. 208 p. 17]. But this statement falls short of showing that Defendant substantially needs this document. The Court therefore enters a protective order prohibiting Defendant from discovering the February 17, 2017 written disclosure statement. August 14, 2017 Disclosures. There are two disclosures dated August 17, 2017, both of which appear to be written by Relator.[17] Even so, the Court finds that these disclosures are protected by the work product doctrine, and for the same reasons explained above, that Relator did not waive the protection by providing it to the DOJ, and that Defendant has not established a substantial need for this material. The Court therefore enters a protective order prohibiting Defendant from discovering the August 14, 2017 written disclosure statements. May 5, 2010 Written Disclosure. This disclosure was written by Relator's former counsel on behalf of Relator. It contains both fact and opinion work product. This distinction is important because, as mentioned above, fact work product can be discoverable, while opinion work product generally cannot. Fed. R. Civ. P. 26(b)(3)(B) (“If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.”); FTC. v. Boehringer Ingelheim Pharms., Inc., 778 F.3d 142, 153 (D.C. Cir. 2015) (“A] party's ability to discover work product often turns on whether the withheld materials are fact work product or opinion work product.”); see also Gen. Dynamics, 231 F.R.D. at 384 (“[T]his Court finds that the ordinary work product is discoverable and the opinion work product is not discoverable.”). “[W]here a document contains both opinion and fact work product, the court must examine whether the factual matter may be disclosed without revealing the attorney's opinions.” Boehringer Ingelheim Pharms., Inc., 778 F.3d at 152 (citation omitted). Moreover, “the mere fact that an attorney had chosen to write a fact down [is] not sufficient to convert that fact into opinion work product.” Id. at 152 (citation omitted). As some courts have noted, “there must be some indication that the lawyer ‘sharply focused or weeded the materials.’ ” Id. (quoting In re Sealed Case, 124 F.3d 230, 236 (D.C. Cir. 1997), rev'd sub nom. by Swidler & Berlin v. United States, 524 U.S. 399 (1998)). After reviewing the May 5 disclosure, the Court does not find it would be an exercise in futility to separate the opinion work product from the fact product work product. Notably, there is a fair amount of opinion work product in the May 5 disclosure. For example, approximately six pages summarize the allegations in this case. See Gen. Dynamics, 231 F.R.D. at 384 (finding that the summary in the disclosure was opinion work product because “[i]n a summary, an attorney is setting forth his conclusions about the alleged claims of the case and the evidence that he believes buttresses those claims”). In addition, there is a fair amount of mental impressions, conclusions, opinions, or legal theories throughout the disclosure. See id. (finding that redactions to mental impressions, conclusions, opinion, or legal opinions contained in the narrative of the disclosure appropriate). On the other hand, Relator provides a lengthy narrative that is not opinion work product. The question now before the Court is whether Defendant has established its burden in showing that it is entitled to this fact work product. *11 For similar reasons as above, see supra pp. 12–15, the Court concludes that Defendant has met its burden. In making this finding, the Court highlights the unique circumstances of this case. Relator filed his Complaint on May 4, 2010 [Doc. 1], and the Government investigated for over five years. It eventually declined to intervene [Doc. 31], and the Court lifted the seal on November 4, 2015 [Doc. 32]. The case sat idle for almost two years. On September 27, 2017, Relator requested leave to file an amended Complaint [Doc. 67], which the Court granted and the case was sealed again [Doc. 71]. This time, the Government investigated for approximately five years [Doc. 121]. This length of time certainly places hurdles for Defendant to obtain relevant discovery. As, as explained above, Defendant has already encountered several of these hurdles (e.g., files being destroyed and deponents having difficulty recollecting facts). While Relator asserts Defendant has yet to depose him, the Court highlights its serious concerns that he cannot recall, similar to other witnesses, the detail that he provided the Government fourteen years ago. And Defendant has cited to some incomplete evidence that may support its statute of limitations defense [See Doc. 191 p. 14]. Based on the above, the Court finds Defendant has met its burden in establishing that it has a substantial need for Plaintiff's May 5 disclosure and that it cannot obtain this evidence elsewhere absent undue hardship. See Fed. R. Civ. P. 26(b)(3). Relator may redact opinion work product as necessary but shall also provide Defendant with a privilege log sufficient for it to test the assertion of the privilege over any of the redacted portions. United States ex rel. Brown v. Celgene Corp., No. CV 10-3165, 2015 WL 12731923, at *8 (C.D. Cal. July 24, 2015) (directing relator to provide his disclosure statement along with a privilege log detailing the redactions). Relator shall produce the May 5 disclosure along with his privilege log within seven days. C. Relator's Communications with the Government Defendant also seeks Relator's communications with the Government [Doc. 208 pp. 21– 25]. Defendant's arguments with respect to this issue largely relate to its claim that Relator has waived any privileges by producing an insufficient, untimely privilege log [See id.]. The Court has addressed this issue, see supra pp. 3–4 n.4, and as noted above, on April 15, 2024, Relator provided Defendant an updated privilege log. In light of Relator's updated privilege log, the Court finds any waiver issue moot. In addition, given Relator's updated privilege log, it is not clear if the parties are at an impasse regarding communications. The Court therefore ORDERS the parties to meet and confer regarding any communication in Relator's updated privilege log that Defendant believes is discoverable. To the extent they reach an impasse, they shall contact Chambers. IV. CONCLUSION For the reasons set forth above, Court GRANTS IN PART AND HOLDS IN ABEYANCE IN PART the Motion to Compel the DOJ [Doc. 191], GRANTS IN PART AND DENIES IN PART Relator's Motion for Protective Order [Doc. 202] and Defendant's Cross Motion [Doc. 208]. IT IS SO ORDERED. Footnotes [1] Defendant's Motion to Compel DOJ [Doc. 191] overlaps somewhat with the other two motions. In that motion, however, Defendant also argues that the DOJ's privilege log is insufficient, and it also seeks a deposition of the DOJ [See id.]. The parties have filed a status report about these two issues [see Doc. 225], and the Court will address them in a separate order. Therefore, the Court holds a portion of this motion in abeyance. [2] Relator includes violations of the Tennessee Public Protection Act, Tenn. Code Ann. § 50-1-304 [Doc. 112 ¶¶ 349–55], and he alleges his discharge was wrongful under Tennessee common law [Id. ¶¶ 356–62]. [3] The parties emailed the list of interviews to Chambers. [4] Defendant argues that Relator has waived any claims of privilege over his written disclosure statements, the Government's interview summaries of Relator, and his communications with the DOJ by not providing a timely, adequate privilege log [Doc. 208 p. 10]. But as explained in Relator's brief [see Doc. 215 pp. 5–9], this is not a situation where he ignored his obligations to produce a privilege log. Instead, the parties reached a genuine dispute regarding the detail that should have been provided in the privilege log. Based on the parties' arguments, a finding of waiver is not appropriate. Hobart Corp. v. Dayton Power & Light Co., No. 3:13-CV-115, 2017 WL 3668848, at *2 (S.D. Ohio Aug. 24, 2017) (“Waiver is an ‘extreme sanction’ typically ‘reserved for cases of unjustifiable delay, inexcusable conduct, and bad faith in responding to discovery requests.’ ” (quoting 6 James Wm. Moore, Moore's Federal Practice § 26.902 (3d ed.)). [5] The joint-prosecutorial privilege is the “parallel privilege” to the joint-defense privilege. U.S. ex rel. Purcell v. MWI Corp., 209 F.R.D. 21, 25 (D.D.C. 2002) (citation omitted). [6] Some courts do not distinguish between the common interest privilege or the joint-prosecutorial privilege but instead refer to the latter as a concept of the common interest privilege. Broessel, 238 F.R.D. at 219. [7] The DOJ has produced other interview summaries to Defendant but not the interview summaries of Relator. [8] Defendant asserts that the DOJ waived the attorney-client privilege and the joint prosecutorial privilege by not addressing them in its brief [Doc. 206 p. 6]. Relator, however, has asserted the common interest privilege. In a footnote, Relator also states that “[t]o the extent the communications memorialize confidential communications between Realtor and counsel, they are protected by the attorney-client privilege” [Doc. 215 p. 27 n.38 (citing Doc. 214 pp. 4–5, n.8)]. The Court has no evidence, however, that this is the case. [9] Several Assistant United States Attorneys and a DOJ trial attorney were noted as being present at the June 11, 2010 interview, and a DOJ trial attorney was noted as being present at the November 15, 2010 interview. [10] Notably, Relator's telephonic interview taken on December 1, 2010, was not attended by an attorney. [11] Relator faced a similar issue when he claimed an interview summary by the Department of Army (“Army”) was protected under the work-product privilege and the common interest privilege, but the Army had produced it via a Freedom of Information Act (“FOIA”) request [See Doc. 216]. [12] To the extent the interview summaries are fact work product, any disclosure to Relator would not constitute a waiver. U.S. ex rel. Burroughs v. DeNardi Corp., 167 F.R.D. 680, 686 (S.D. Cal. 1996) (“[T]he court concludes that plaintiff and the government have sufficient commonality of interests such that they can successfully assert the joint prosecution privilege.”); Medica-Rents Co., 2002 WL 1483085, at *2 (finding that memoranda from the relators disclosed to the government did not constitute a waiver of the work product doctrine because of the joint-prosecution privilege). [13] No party has sufficiently addressed whether such documents are protected by the attorney-client privilege, and therefore, the Court declines to address it. [14] The Court further finds Relator has not waived any the work-product privilege by sharing the disclosure statement with the Government. United States ex rel. Brown v. Celgene Corp., No. CV 10-3165, 2015 WL 12731923, at *7 (C.D. Cal. July 24, 2015)(“[C]ourts appear virtually unanimous in rejecting the contention that the submission of a disclosure statement to the government constitutes a waiver.”); U.S. ex rel. Minge v. TECT Aerospace, Inc., No. 07-1212, 2011 WL 1885934, at *5 (D. Kan. May 18, 2011) (explaining that under the FCA, “the parties have a clear common interest, and if the documents were created in anticipation of the qui tam litigation and provided to the Government in furtherance of the litigation, the disclosures do not constitute a waiver of either the attorney-client privilege or of any work product protections under Fed. R. Civ. P. 26”). [15] Relator's original in-camera production included all the exhibits attached to his written disclosure statements. At the April 11 joint status conference, however, the parties confirmed that Defendant had a copy of all the exhibits Relator attached to the written disclosure statements. Therefore, the Court does not need to review these exhibits in camera. [16] The Court has not conducted a side-by-side comparison of the draft complaints with any of the complaints Relator filed. But to the extent he has filed these without changes, Defendant already has a copy. [17] The privilege log states that they are from Relator's former counsel, Nicola Tancredi.