United States District Court

For the Northern District of California

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NOT FOR CITATION

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

UNITED STATES ex rel. DONNA M.

McLEAN and THE STATE OF CALIFORNIA

ex rel DONNA M. McLEAN,

Plaintiffs,

 v.

THE COUNTY OF SANTA CLARA, THE

DEPARTMENT OF CHILDREN AND

FAMILY SERVICES OF SANTA CLARA

COUNTY, KENNETH BORELLI,

LAWRENCE GALLEGOS, EPIFANIO (“J.R.”)

REYNA, TANYA BEYERS, DR. DEE

SCHAFFER, DR. TOMMIJEAN THOMAS,

DR. RICHARD PERILLO and DOES 1-100,

Defendants. /

No. C05-01962 HRL

ORDER RE RELATOR’S MOTION FOR

CLARIFICATION

[Re: Docket No. 292]

Relator requests clarification of the court’s September 8, 2009 order (Docket No. 271)

with respect to the production of information pertaining to a certain form, i.e., CA800A FC

(NONFEDERAL). Specifically, McLean expresses concern that this form may have been

carved out from the required production of documents because the September 8, 2009 order said

that information pertaining to that form need not be produced “to the extent” the form did not

pertain to funds requested of the United States. Relator now requests that the court “clarify”

that the September 8, 2009 order actually meant that the form is relevant and should be

produced.

*E-FILED 04-02-2010*

Case 5:05-cv-01962-HRL Document 307 Filed 04/02/10 Page 1 of 5
United States District Court

For the Northern District of California

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Preliminarily, the court does not view the instant motion as one for “clarification.” 

Instead, the instant motion appears to be an attempt by relator to salvage a mistake by her prior

counsel in failing to explain what information was being sought or why. As noted in this

court’s prior orders, relator’s original request for this information was vague, ambiguous and

overbroad. McLean failed to identify what form(s) she sought until after the County had

produced its documents on the court-ordered deadline. Even then, she did not explain to the

court what these forms are or why they are important. (See Docket Nos. 261, 271). The court

did the best it could with the information it had to give relator the information it believed she

legitimately was entitled to have. Thus, the sentence of the September 8, 2009 order that relator

now quibbles about was not the source of any confusion by the court, but rather, a failure of

relator to fully explain what she needed and why.

Acknowledging that she should have explained much sooner, McLean now claims that

the nonfederal form in question is necessary for the calculation of a certain federal/nonfederal

ratio that she contends is relevant to her claims. Defendants oppose the motion, arguing that

this is an eleventh hour attempt to re-open discovery to obtain information in support of

McLean’s unidentified and ever-shifting theories of liability. Defendants also say that they

already have produced information pertaining to a nonfederal form — i.e., CA800A

(NONFEDERAL) — because that is what the September 8, 2009 order said. The order did say

that initially; and, to the extent the court initially referred to “CA800A (NONFEDERAL)”

instead of “CA800A FC (NONFEDERAL),” it was a typographical error. Nevertheless, that

typo should not have misled defendants as to what was being ordered produced. It should have

been apparent from the context of the discussion that “CA800A FC (NONFEDERAL)” is the

form that was meant. Among other things, the order specifically referred to exhibits of County

counsel’s own declaration, which identified the form as “CA800A FC (NONFEDERAL).” It

therefore appears that defendants chose to comply with the literal language of the order, rather

than with what defendants knew or should have known was being called for.

Accordingly, to the extent they have not already done so, defendants shall produce

information pertaining to form “CA800A FC (NONFEDERAL).” All of the terms and

Case 5:05-cv-01962-HRL Document 307 Filed 04/02/10 Page 2 of 5
United States District Court

For the Northern District of California

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limitations set forth in the January 22, 2009 order (Docket No. 261) still apply. The court

therefore assumes that production should not impose a significant burden on defendants. The

production shall be made no later than April 12, 2010.

Under the current scheduling order, relator’s anticipated summary judgment motion is

due on April 6, 2010. In view of the production being ordered here, the court finds that a

continuance is appropriate — but a very brief one only. The instant motion was filed six

months after the September 8, 2009 order issued and well after the close of discovery. This

court has already bent over backwards with respect to relator’s many prior requests for

continuances and extensions of time in this proceeding. Accordingly, McLean’s anticipated

summary judgment motion shall be filed no later than April 19, 2010.

The May 11, 2010 dispositive motion hearing is continued to June 8, 2010, 10:00 a.m.

Opposition and reply briefs on defendants’ pending summary judgment motion and relator’s

anticipated summary judgment motion shall be filed in accordance with a normal 35-day

calendar under Civil Local Rule 7.

Finally, the court notes that it is frankly concerned about where this is all going. This

case originally was premised on the theory that defendants allegedly fraudulently overbilled the

government by creating fictional children and entering into extended, pre-paid contracts with

local doctors, who reportedly performed less work than was called for by the contract. 

Relator’s theories of liability do seem to have shifted significantly since then (or, at the very

least, it is unclear how the discovery in question pertains to her original theories). It is difficult

to appreciate what relator will do with the federal and nonfederal forms now in question. Her

papers suggest that the information might only be helpful to her as the subject of expert

testimony. However, the time for discovery and expert disclosures has long since passed, and

the court takes a dim view of any attempt by relator to now recast or reinvent this case as

something different than what it has been. To the extent relator suggests that she may seek to

introduce new or different expert testimony as to her claims, she has not established good cause

to do so. And, this court is not inclined to re-open expert discovery at this stage of

Case 5:05-cv-01962-HRL Document 307 Filed 04/02/10 Page 3 of 5
United States District Court

For the Northern District of California

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the litigation.

SO ORDERED.

Dated:

 

HOWARD R. LLOYD

UNITED STATES MAGISTRATE JUDGE

April 2, 2010

Case 5:05-cv-01962-HRL Document 307 Filed 04/02/10 Page 4 of 5
United States District Court

For the Northern District of California

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5:05-cv-01962-HRL Notice has been electronically mailed to: 

Gordon Wayne Renneisen grenneisen@cornerlaw.com, pprill@cornerlaw.com

Jeremy L. Friedman jlfried@comcast.net

Joan Eve Trimble joan_trimble@cmwlaw.net, patricia_inabnet@cmwlaw.net

Melissa R. Kiniyalocts melissa.kiniyalocts@cco.co.scl.ca.us,

marylou.gonzales@cco.sccgov.org

Orley Brandt Caudill , Jr brandt_caudill@cmwlaw.net, christopher_zopatti@cmwlaw.net

Sara McLean sara.mclean@usdoj.gov

Sara Winslow sara.winslow@usdoj.gov, kathy.terry@usdoj.gov

Stephen H. Schmid stephen.schmid@cco.co.santa-clara.ca.us,

marylou.gonzales@cco.sccgov.org

Virginia Stewart Alspaugh Virginia_Alspaugh@cmwlaw.net, Linda_Knobbe@cmwlaw.net,

TheAlspaughs@cox.net

William C Dresser loofwcd@aol.com

Counsel are responsible for distributing copies of this document to co-counsel who have not

registered for e-filing under the court’s CM/ECF program.

Copy of order mailed to:

Julia Ann Clayton 

California Attorney General’s Office 

455 Golden Gate Avenue # 11000 

San Francisco, CA 94102-7004

Case 5:05-cv-01962-HRL Document 307 Filed 04/02/10 Page 5 of 5