An Introduction to Qui Tam Litigation in the U.S. District Court for the Eastern District of Virginia–also known as the “Rocket Docket”

The United States District Court for the Eastern District of Virginia is known as the “Rocket Docket,” a title that Court has worn with pride for more than 40 years.  The name originated with Albert V. Bryan, the Judge for whom the Alexandria Courthouse is now named.  Judge Bryan had a tendency–which continues with most Judges some of the time and some Judges most of the time–to make rulings from the bench on complicated motions, including dispositive motions.

Lest any reader think that these are mere lawyer war stories, consider this–of the 94 federal districts in our federal court system, the Eastern District of Virginia processes cases faster than any other.  Much Faster.

I am saving most of the general stuff about practice in the Eastern District of Virginia for a guest blog I have been invited to do for the National Institute for Trial Advocacy blog; this post will focus on the litigation of qui tam claims in such a fast-paced environment.

In general, I think it is fair to say that lawyers who are paid only when they
win cases (i.e., contingency fee arrangements) are in favor of rigorous deadlines and a short discovery periods.

However, some plaintiff-side qui tam lawyers are hesitant to file in the Eastern District of Virginia.  I can understand why in some instances.  It does makes sense, for example, to file in a place that will allow the government to have the maximum amount of time to investigate.  It also makes sense in some cases to file in a place that freely gives continuances.

I also think, however, that some cases would be better filed in the E.D.Va than anywhere else in the country.  This is particularly true where the documentation in the possession of the relator makes the violation clear, and where the theory of liability is not going to change mid-stream.

A lawyer considering whether to file his or her qui tam claim in the Eastern District has a number of things to consider.  First, in many situations, the government will be held to the 60 day limit for filing its answer to the sealed complaint and making its decision whether to intervene or not intervene.  In other cases, the United States will be held to something close to the 60 day time frame.

Qui tam practitioners will recognize that this is unique.  Many courts will allow a case to remain under seal for years while the government’s investigation takes place.  Many times, such lengthy investigations are necessary due to ongoing criminal investigations or complicated factual issues; sometimes, they are the result of an overworked and understaffed DOJ.  Whatever the reason or reasons, while there are cases where lengthy investigative periods needed, there are other cases where such lengthy investigative periods are not necessary.

After the case is unsealed and served on the defendants, the E.D.Va. continues with its brisk pace.  As the attached Scheduling Order from one of my recent non-qui tam cases shows, 12 to 14 week discovery schedules are the norm.  The date for the Final Pretrial Conference is set right at the start, and the trial of the case will be scheduled on a date-certain 4 to 8 weeks after the Final Pretrial Conference.

Lawyers unaccustomed to practice in the E.D.Va. often stumble over certain things.   With regard to interrogatories and document requests, pursuant to Fed. R. Civ. Pro. 33, the E.D.Va. has adopted local rules that require the objecting party to do so within 15 days after the the discovery is served.  Any consultation between counsel regarding the disputed discovery should take place immediately after the objections are served.  While not required, when disputed objections cannot be resolved, the lawyers are encouraged to file motions and obtain rulings on the other party’s disputed objections before the answers and documents are served.

As a result of the above, boiler-plate discovery objections to everything under the sun are rarely seen; lawyers tend to object only to those truly objectionable interrogatories and document requests.  It also helps that lawyers who lose motions to compel routinely get rebuked from the bench at a minimum, and sometimes have attorney’s fees awarded against them if the violations are egregious enough.

An additional stumbling block are the exhibit and witness lists that must be filed before the final pretrial conference.  Some lawyers find it counter-intuitive to start making trial exhibits during the last few weeks of discovery.

I will save the issue of summary judgment in the Eastern District for another post.

Zachary A. Kitts