Jean-Claude Franchitti, a former Cognizant employee, filed a qui tam action on behalf of the United States under the False Claims Act (FCA), alleging that Cognizant misused B-1 and L-1 work visas to avoid higher costs associated with H-1B visas and failed to pay wages required under H-1B regulations. The government declined to intervene, and Cognizant’s attempts to dismiss the case partially failed. The case progressed to discovery, during which Cognizant sought documents from the Department of Homeland Security’s Office of Inspector General (DHS-OIG) related to visa policy enforcement.
Cognizant issued a subpoena to DHS-OIG, seeking documents and communications related to four government reports on visa programs. After initial negotiations, DHS-OIG agreed to limited searches but refused to conduct broader email searches for contributors to two of the reports, citing the burden and arguing those reports were not relevant to the original subpoena. Cognizant filed a motion to compel broader discovery, asserting that DHS-OIG had a vested interest in the case outcome and had not demonstrated sufficient justification for its refusal.
The Court evaluated whether DHS-OIG’s response should be reviewed under Rule 45 of the Federal Rules of Civil Procedure or the Administrative Procedure Act (APA). Although there is no binding precedent on which standard applies, the court considered both. Rule 45 provides more direct standards for compelling discovery from non-parties, while the APA requires that agency actions not be arbitrary or capricious. The court highlighted that although DHS-OIG is a non-party, the agency’s involvement in visa enforcement ties it to the core issues in the lawsuit.
The Court denied Cognizant’s motion to compel DHS-OIG to search custodians associated with two of the reports because the subpoena and related requests did not mention them. However, the Court found that DHS-OIG’s limitation on the time range for document searches lacked sufficient explanation and rationale. DHS-OIG failed to justify the specific start and end dates chosen for its searches or the claim that broader searches would be overly burdensome.
The Court partially granted Cognizant’s motion, ordering DHS-OIG to broaden its search timeframe beginning January 1, 2011, but not for the full 10 years Cognizant requested. DHS-OIG and Cognizant were directed to meet and confer to agree on a reasonable end date for the search period. The motion was thus denied in part and granted in part, and the Court emphasized the need for proportionality and cooperation in discovery, especially when government interests are involved in qui tam actions.
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