                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                     No. 09-1129
                                    _____________

                     UNITED STATES OF AMERICA, ex rel.
                              YOASH GOHIL

                                            v.

      AVENTIS PHARMACEUTICALS, INC.; SANOFI-AVENTIS U.S. INC.;
            AVENTIS, INC., JOHN DOES # 1-50, Fictitious Names


                                      Yoash Gohil,

                                           Appellant


                    Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                                  No. 02-cv-02964
                      District Judge: Hon. Petrese B. Tucker

                  Submitted pursuant to Third Circuit LAR 34.1(a)
                                 October 1, 2009

         Before: McKEE, Chief Circuit Judge, CHAGARES and NYGAARD,
                                  Circuit Judges

                              (Opinion filed: July 23, 2010)

                                       OPINION

McKEE, Chief Circuit Judge.



                                            1
       In this action under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-33, relator

Yoash Gohil appeals the district court’s December 22, 2008 order granting defendants’

motion to compel responses to discovery requests. Gohil originally appealed the district

court’s order under the collateral order doctrine, pursuant to which we have allowed

interlocutory appeals of discovery orders that require disclosure of privileged or

confidential information. See In re Ford Motor Co., 110 F.3d 954, 964 (3d Cir. 1997);

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). However, while that appeal

was pending, the Supreme Court held that we do not have jurisdiction to review such

orders under the collateral order doctrine. See Mohawk Indus., Inc. v. Carpenter, 130 S.

Ct. 599, 609 (2009).1 Gohil now asks us to exercise our mandamus jurisdiction and

vacate the district court’s order. For the reasons that follow, we decline Gohil’s request

to exercise mandamus jurisdiction.

                                               I.

       Because we write primarily for the parties, we will recite only as much of the facts

and history of this case as is helpful to our brief decision.

       Soon after filing his amended qui tam complaint in federal court,2 Gohil filed an


       1
        The Supreme Court’s decision in Mohawk addressed orders compelling disclosure of
information that was allegedly protected by the attorney-client privilege. Mohawk, 130 S.Ct. at
609. Gohil acknowledges the Court’s holding also applies to interlocutory appeals of
orders requiring production of material alleged to be attorney work product. See
Appellant Suppl. Br. at 2.
       2
        Gohil filed the original action under seal on May 17, 2002 and filed a second amended
complaint in February of 2007.

                                                2
action in state court against Aventis seeking recovery under New Jersey law for

constructive termination and retaliation. That case was settled in October of 2005 after

three years of litigation, including discovery.

       While that case was pending, Gohil continued to communicate with government

attorneys in an effort to have the federal government intervene under 31 U.S.C. § 3730.

On February 9, 2007, after the government refused to intervene, Gohil filed a second

amended qui tam complaint in federal court.3

       Since the federal court would not have had jurisdiction over Gohil’s qui tam suit

under the FCA if the underlying allegations in that suit were based on information that

had been publicly disclosed, Aventis moved for discovery on the issue of the court’s

subject matter jurisdiction under 31 U.S.C. § 3730(e)(4)(A) (2009).4 That jurisdictional


       3
         “On March 23, 2010, the President signed into law the Patient Protection and
Affordable Care Act, Pub. L. 111-148, 124 Stat. 119. Section 10104(j)(2) of this legislation
replaces the prior version of 31 U.S.C. § 3730(e)(4) with new language. The legislation makes
no mention of retroactivity, which would be necessary for its application to pending cases.”
Graham County Soil and Water Conservation Dist. v. United States ex rel Wilson, 130 S. Ct.
1396, 1400 n.1 (2010). Because the amendment does not apply to the case at hand, when we
discuss 31 U.S.C. § 3730(e)(4), we will use the present tense of the statute as it existed at the
time this case was submitted. See id. (“Throughout this opinion, we use the present tense in
discussing [31 U.S.C. § 3730(e)(4) (2009)] as it existed at the time this case was argued.”).


       4
           31 U.S.C. § 3730(e)(4)(A) (2009) states:

       No court shall have jurisdiction over an action under this section based upon
       the public disclosure of allegations or transactions in a criminal, civil, or
       administrative hearing, in a congressional, administrative, or Government [sic]
       Accounting Office report, hearing, audit, or investigation, or from the news
       media, unless the action is brought by the Attorney General or the person

                                                 3
bar is only lifted if the plaintiff can show that, even if the information had been disclosed

publicly, the plaintiff is an “original source of the information.” 31 U.S.C. §

3730(e)(4)(B) (2009).5 Aventis sought discovery because it claimed that it would

establish that the information Gohil’s suit was based upon had been publicly disclosed in

the course of the employment suit he had brought in state court in New Jersey and that the

suit under the FCA was therefore barred under 31 U.S.C. § 3730(e)(4) (2009). The

district court granted Aventis’s motion and allowed Aventis to “take discovery relevant to

subject matter jurisdiction of the Court over Plaintiff/Relator’s Second Amended

Complaint.” J.A. 16.

       Thereafter, Aventis requested production of Gohil’s communications with the

government. However, Gohil resisted, asserting that those communications were

privileged. Aventis insisted that it needed those communications to determine whether

Gohil had first-hand knowledge of the facts alleged in his second FCA complaint and

moved to compel.6

       By order dated July 2, 2008, the district court denied Aventis’s motion to compel.




       bringing the action is an original source of the information.
       5
        The statute defines “original source” to mean “an individual who has direct and
independent knowledge of the information on which the allegations are based and has voluntarily
provided the information to the Government before filing an action under this section which is
based on the information.” 31 U.S.C. § 3730(e)(4)(B) (2009).
       6
          We note that the government filed a statement of interest supporting Gohil’s position
that the information Aventis sought was privileged.

                                                4
However, the court allowed Aventis to proceed with deposing Gohil. It appears that that

deposition was particularly contentious. After deposing Gohil, Aventis renewed its

motion. The court responded by reviewing the Disclosure Statements “to determine if

Defendants should be permitted to re-depose Plaintiff/Relator, and/or if Defendants

should be provided with a redacted version of the Disclosure Statements.” J.A. 22

       After reviewing those documents, the district court concluded that the requested

information was not protected by any privilege and granted Aventis’s motion to compel

and ordered Gohil to respond to Aventis’s discovery requests on December 22, 2008.

This appeal followed.

                                             II.

       In Mohawk, the Supreme Court held that “the collateral order doctrine does not

extend to disclosure orders adverse to the attorney-client privilege.” 130 S. Ct. at 609.

However, the Court in Mohawk also made clear that “in extraordinary circumstances-i.e.,

when a disclosure order ‘amount[s] to a judicial usurpation of power or a clear abuse of

discretion,’ or otherwise works a manifest injustice-a party may petition the court of

appeals for a writ of mandamus.” Id. at 607 (quoting Cheney v. U.S. Dist. Ct. for D.C.,

542 U.S. 367, 390 (2004)). Accordingly, Gohil asks that we now exercise mandamus

jurisdiction and issue a writ under the All Writs Act, 28 U.S.C. § 1651, reversing the

district court’s order compelling him to respond to Aventis’s discovery requests.

       As the Supreme Court reiterated: “Mandamus is a ‘drastic and extraordinary’



                                             5
remedy ‘reserved for really extraordinary causes.’” Cheney, 542 U.S. at 369 (quoting Ex

parte Fahey, 332 U.S. 258, 259-60 (1947)). We have held that:

       Three conditions must be satisfied for the issuance of a writ of mandamus: (1)
       there must be no other adequate means to attain the relief sought; (2) the right
       to issuance of the writ must be clear and indisputable; and (3) the issuing
       court, in the exercise of its discretion, must be satisfied that the writ is
       appropriate under the circumstances.

In re Pressman-Gutman Co., Inc., 459 F.3d 383, 399 (3d Cir. 2006) (internal quotation

marks omitted); see also Cheney, 542 U.S. at 380-81. In weighing the interests of

litigants, the Court in Mohawk explained that “postjudgment appeals generally suffice to

protect the rights of litigants and assure the vitality of the attorney-client privilege.” 130

S. Ct. at 606. Moreover, the Court concluded that “deferring review until final judgment

does not meaningfully reduce the ex ante incentives for full and frank consultations

between clients and counsel.” Id. at 607. The Court also noted that “[w]e routinely

require litigants to wait until after final judgment to vindicate valuable rights, including

rights central to our adversarial system.” Id. at 606.

       Even if we assume arguendo that it is “clear and indisputable” that parts of the

Disclosure Statements are protected, as Gohil claims, we nevertheless remain far from

convinced that there is no other adequate means for him to obtain relief, or that the writ is

an appropriate remedy in this case. See In re Pressman-Gutman, 459 F.3d at 399.

Gohil’s only argument to the contrary is that Aventis will gain insight into his litigation

strategy from the documents he would be forced to produce. Appellant’s Suppl. Br. at 5.



                                               6
We are not convinced. The documents or statements that Gohil argues require redaction

as “core work-product” in the sealed appendices by no means reveal a complete litigation

strategy. For example, while words like “key” or “very important” are used to describe

potential witnesses, the labels are not explained in detail. That this “order adverse to . . .

privilege may . . . harm [Gohil] in ways that are only imperfectly reparable” is neither a

basis for collateral appeal of this order nor the issuance of a writ. Mohawk, 130 S. Ct. at

608 (internal quotation marks omitted).

       Moreover, the “district judge can better exercise [his or her] responsibility [to

police the prejudgment tactics of litigants] if the appellate courts do not repeatedly

intervene to second-guess prejudgment rulings.” Id., 130 S. Ct. at 605 (internal quotation

marks omitted) (quoting Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 436 (1985)).

       Accordingly, we are not convinced that the extraordinary relief afforded by

mandamus is appropriate and we will therefore refuse to exercise mandamus jurisdiction.




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