Free Affidavit - District Court of Connecticut - Connecticut

Case 3:02-cv-01573—IV|RK Document 236-3 Filed 04/20/2007 Page10f4
EXHIBIT 2

Case 3:02-cv-01573-IVIRK Document 236-3 Filed 04/20/2007 Page 2 of 4
U U.S. Department of Justice ‘
¤z if
. Civil Division
MFH:JRB:PDavis W §3;2%;iS0238 ‘
DJ No. 46-l4»75l ` ` _ `
_ Washington, D. C. 20530
· September l2, 2006
Mr. Robert Salcido ` _
_ Akin, Gump, Strauss, Hauer
_ & Feld LLP
1333 New Hampshire Ave. N.W. , ' ·
Washington, DC 20036—l564 _
[email protected] _ ‘
Dear Robert: - - l
You state in your September S"' email to me that the bulk of the documents you recently
produced are responsive to the govemment’s second request for production and relate to the
formation of Dianon’s compliance program. The compliance program was formed in 1997, yet
many of the documents you recently produced are hom 2001 and 2002. They clearly are
responsive to our July 2005 request number 6, which called for production of "[a]ll documents
concerning Dianon’s billing compliance plan." It is unclear why these documents were produced
alter the close of discovery other than to prejudice the Govemment’s ability to take discovery in
this case.
P As to your request that I respond to your letter of July 25th, I responded to a part of that
· letter - the issue of whether we would oppose a motion to unseal. As to the other issues, I will
respond now. First, on the issue of alleged "spo1iation," you did not indicate what relevant
doctunents you claim are missing. As you know, the govemment relies, in part, on the document
retention policies of the various agencies. For example, as you know, the document custodian
hom the Connecticut Carrier testified at her deposition (p. 14), as follows:
Q: And is there any kind of CMS memo or directive about retaining documents for the L
carriers?
A: Yes. We are — all carriers and intermediaries are under a do not destroy. It’s hom a
J SM, a joint signature memorandum. `
Q: What does that mean?
A: That means you can’t destroy any documents for any reason.

Case 3:02-cv-01573-IVIRK Document 236-3 Filed 04/20/2007 Page 3 of 4
.. 2 ..
It appears hom the exhibits to your July 25th letter that Dianon waited until it received a
. request for documents hom the govemment before it sent out a memo asking employees to retain
documents and to search their files, despite learning about the pendency of the case before then.
Thom Kossl’s memo of May 12, 2003 states that: "Dia.non Systems has received a records .
request from the Department of Justice in connection with an investigation of
immunophenotyping flow cytometry studies .... " However, the govemment moved to have this
case partially unsealed in September 2002 and provided Dianon with a copy of the complaint in
Oct./Nov. 2002, in connection with settlement discussions regarding the prior qui tam. Dianon
appears to have waited 6-7 months until it received a document request before alerting its
employees to retain/retrieve documents. Further, it does not appear that you asked Dianon to
search all emails as you keep insisting that the United States should do for federal offices all over
the country and for agencies not a party to this lawsuit.
As you know, the federal government is quite large. It would be logistically difficult to l
send out memos to retain documents to every federal agency for each of the numerous qui tam `
cases we investigate. Considering that your document requests involved collecting documents
nom Medicare carriers and VA facilities throughout the country, and required communications
with hundreds of people, lbelieve the govemment’s document production in this matter was
quite thorough. 4
Next, you falsely accused the government of "alte1ing" an Impath ALJ decision
document. In a March 2004 settlement meeting (before you were retained on this case) Thom l
Kossl indicated that he had a decision from an ALJ in the Impath matter and that the decision
was favorable to Dianon’s position. After learning of this decision hom Thom, we retrieved a ,
copy of the decision from HHS in Apiil of 2004. We did not produce a copy of the decision at .
the time of our original production, because we understood that Thom already had the decision
and your document request appeared to be seeking the underlying documents related to the l
decision, such as correspondence and exhibits. Although the relevant Medicare carrier in .
California, NHJC, initially had trouble locating responsive documents, it eventually did produce
approximately 3,500 pages related to the Impath appeal. As part of that production, NI·HC
produced a copy of the ALJ decision. Thus, the two ALJ decision documents attached to your
letter came from two different sources and, of course, were not "altered" in any way. Even a
cursory review of the two documents would have told you that, as one is stamped "COPY" and
the other is not. Furthermore, since you had the 3,500 page NHIC production well before the ’
close of discovery, it is difficult to understand how Dianon was "hampered" in its ability to
conduct discovery.
In addition, you claim that our production fails to conform to Rule 34. Rule 34 states that Y
the party producing documents shall produce them "as they are kept in the usual course of
business g shall organize and label them to correspond with the categories in the request."
(emphasis added). First, we have bates-stamped our production to correspond to the documents
received from each agency. For example, the-documents from the VA were stamped with a VA
prefix, NIH an NIH prefix, etc. This is more than Dianon has done, as all Dianon’s documents
_ were labeled with a PP prefix, which does not indicate which documents came hom Dianon and
which came nom LabCorp. We have asked you to indicate the source of your documents, but
you have not done so. Second, we produced the documents as they were kept in the normal . ` _

Case 3:02-cv-01573-IVIRK Document 236-3 Filed 04/20/2007 Page 4 of 4
.. 3 .. .
course of business. For example, when a carrier sent us its production, we grouped the
production together, just as the documents were provided to us. When the NIH sent us its panels,
_ we grouped them together} etc. Thus, we have clearly complied with Rule 34.
On another matter, the documents Dianon produced in Stratford last week were not what A
we expected. We understood that Dianon was producing both the claims submitted to CMS for
CPT code 88180 and the records of payment. Alter reviewing several of the boxes, Ryan
realized that the claims for payment were not included. Rather, the docrunents produced were
records of payment and no claims data was produced. Dianon employees informed Ryan that
Dianon only kept the claims in an electronic format. Further, the records of payment to CMS for
88180 were interspersed with records of payment with all records of payment for all CPT codes.
Obviously, sorting through hundreds of boxes of documents to cull out records of payment from
CMS for one CPT code would be prohibitively time-consuming and costly. Then trying to marry
those records of payment to claims for payment kept in electronic form would be nearly
~ impossible. We would like to suggest that the pa.rties stipulate to using the electronic records of
payment obtained from HHS/CMS for purposes of proof at trial. We produced this data on three
disks at the time of our original production in 2005 (Bates # OIG 00004, 00005, 00006). Please
{ let me know whether this will be acceptable.
Finally, l look forward to receiving your response to my September 5, 2006 letter
regarding the deficiencies in your privilege log and your recent document production.
U Sincerely,
p Patricia Davis
Assistant Director .
Commercial Litigation Branch
Civil Division
cc: AUSA Rick Molot ' ` t
Bruce R. Parker