Free Affidavit - District Court of Connecticut - Connecticut

Case 3:02-cv-01573—IV|RK Document 236-5 Filed 04/20/2007 Page10f3
EXHIBIT 4

Case 3:02-cv-01573-IVIRK Document 236-5 Filed 04/20/2007 Page 2 of 3
U.S. Department of Justice
V civii Division ,
MFH:IRB:PDavis 1; 3;]g‘g‘;iS02 3 8
DJ No. 46-14-751 ` '
Washington, D. C. 20530
November 8, 2006
Mr. Robert Salcido
Akin, Gump, Strauss, Hauer
& Feld LLP . ‘
1333 New Hampshire Ave. N.W. A
Washington, DC 20036-1564 ·
rsalcido@al Dear Robert:
I am in response to your letter of October 11, 2006. .
Without getting into a point-by-point response to your letter, which I realize from
previous interactions would be a waste of time, there are a few issues that I do think we need to
raise. You state at the close of your letter that "Dianon has made full production of all
responsive documents." However, this is clearly not the case, for the following reasons:
1. Request # 4 from our May 15, 2006 second request for documents, calls for
_documents concerning any communications, meetings, etc. between Dr. Braylan
and Dianon or LabCorp relating to Dr. Bray1an’s potential employment with those
companies. In your August 15, 2006 response, you state "Documents responsive
to this request will be made available at a mutually convenient time." However,
we have never received those docrnnents. Are you now refusing to produce
documents which you represented that you would produce in your August 15
response? If not, when can we expect to receive these documents?
2. Request #5 from our May 15 second request for documents, calls for
production of claims and "electronic c1aims" submitted by Dianon to Medicare
and Tricare for CPT Code 88180 services from Jan. 1, 1996 to Dec. 31, 2003.
The documents you made available for inspection at Dianon’s warehouse in
Stratford were records of payment (which was our request #6), not claims.
Dianon employees informed Ryan Fayhee that the claims were kept in electronic
format, but those have not been produced. Further, as I mentioned in my prior
letter, we have produced Dianon claims data in electronic format (OIG 00004, i
00005, 00006) and would like to discuss entering into a stipulation regarding that

Case 3:02-cv-01573-IVIRK Document 236-5 Filed 04/20/2007 Page 3 of 3
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data. Your October 11, 2006 letter is silent on the issue of producing the
electronic claims and on entering into a potential stipulation. Please advise.
3. Request # 3 from our May 15 second request for documents, calls for
production of documents concerning the Hemepath Consensus Conference. Some
responsive documents were produced by Sarah Ford on August 25, 2006. The
request specifically calls for the production of notes and "presentation materials."
However, there is only one page of notes (it’s actually only about 2 sentences).
As important, however, is the fact that the documents do not contain any
presentation materials. See 10/27/2005 email (PP22641) ("The meeting will start
with a brief presentation by each laboratory group. . . Ifyou will not have a laptop
q for making yom presentation, please make sure to email it to me tomorrow or
bring it on a CD."). Also, our request calls for documents relating to any
payments made to Dr. Braylan for his services at the conference, but nothing has
been produced. Moreover, there are several emails that reference attachments,
which were not produced (eg. PP22643 & PP22644). It is improper to produce
only some documents from the conference, but not to produce other documents
that clearly exist. When can we expect a complete production in response to this
request?
4. Finally, Requests #4*/ 10 and 13 of our May 15 second request for production,
call for documents related to the cost of antibodies. You obj ect to these requests
on the grounds of burden and relevance. Please explain the burdensomeness of
the request. As for relevance, you have raised the issue of the cost of antibodies
in you summary judgment papers. See Dianon’s Rule 56(a)(l) statement, at 18 fn.
_ 16. How can you raise the cost of antibodies as a defense, and then deny the
government documents that pertain to this very issue?
I look forward to receiving your complete response to our document production requests.
i Those responses are now quite overdue. If we do not receive complete responses soon, we will
be forced to ask the Judge to intervene.
· q _ Sincerely,
70.//ZZ-‘ A
· Patricia Davis
Assistant Director
Commercial Litigation Branch
Civil Division
cc: AUSA Rick Molot
Bruce R. Parker q