Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Whistleblowers seek discovery sanctions against BAE Systems in bid rigging suit, (Apr 29, 2015)

By Linda O’Brien, J.D., LL.M.

In an action by two whistleblower employees against defense contractor BAE Systems Technology Solutions & Services, the defendant wrongfully rejected the plaintiffs’ requests for documents relating to their whistleblowing and qui tam claims and should be sanctioned for not complying with discovery requests, according to a motion to compel discovery and for discovery sanctions filed by the employees (Paige v. BAE Systems Technology Solutions & Services, Inc., April 27, 2015).

Former employees Matthew Paige and James Gammon filed suit against BAE, alleging that the defense contractor used inside information to rig bids and overbilled the U.S. Army for a weapons study, then fired them in retaliation for whistleblowing. The plaintiffs’ qui tam claims under the False Claims Act were dismissed and only the retaliation claim remains.

In December 2014, the plaintiffs served discovery requests. The defendant initially responded in January 2015; however, BAE objected to certain discovery requests on the basis that the evidence regarding the underlying false claims was irrelevant to the remaining retaliation claim, since the plaintiffs’ qui tam claims had been dismissed.

The plaintiffs contend that BAE must provide all information and documents in response to their discovery requests regardless of whether the information relates to the underlying false claims. Evidence regarding the underlying false claims could be used to establish retaliatory motivation for both the plaintiffs’ prima facie case and to rebut the defendant’s non-discriminatory reason. The plaintiffs’ requests are also relevant, since they must show that they objectively and subjectively believed in good faith that the defendant was committing fraud against the government.

The defendants should be compelled to provide information regarding other civil lawsuits relating to whistleblower and qui tam claims as the defendant’s refusal to respond is without justification, according to the motion. The plaintiffs’ request for other information on other lawsuits may lead to the discovery of admissible evidence, such as evidence that other employees had a reasonable belief that BAE was possibly committing fraud.

Based on the frivolousness of the defendant’s objections and its refusal to reasonably cooperate with discovery, the plaintiffs asked the court to award them costs and expenses. Discovery has been hindered and delayed in an effort to meet the discovery deadline due to the defendant’s unfair tactics, the motion contended.

Attorneys: Robert D. Fetter and Keith D. Flynn (Miller Cohen, P.L.C.) for Matt Paige and James Gammon. Scott T. Seabolt and Irina N. Kashcheyeva (Foley & Lardner LLP) for BAE Systems Technology Solutions & Services, Inc.

Companies: BAE Systems Technology Solutions & Services, Inc.

News: Antitrust MichiganNews