The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA CIVIL ACTION
ex rel. Robert Romero
VERSUS NO. 16-15092
AECOM, ET AL. SECTION “L” (4)
ORDER AND REASONS
The Court has before it Defendant AECOM’s Motion to Review, R. Doc. 16, the ruling
of the Magistrate Judge, R. Doc 212, granting in part and denying in part Xavier University Of
Louisiana’s (“Xavier”) Motion to Quash, R. Doc. 202. Xavier has filed an opposition. R. Doc.
224. Having reviewed the briefing and the applicable law, the Court rules as follows.
I. BACKGROUND
On September 30, 2016, qui tam Plaintiff-Relator Robert Romero filed the instant case
against AECOM Corporation (“AECOM”), Xavier University, and the Archdiocese of New
Orleans (“Archdiocese”) under the False Claims Act (the “FCA”), 31 U.S.C. § 3729-33. R. Doc.
1. AECOM is a multinational engineering firm and a Federal Emergency Management Agency
(“FEMA”) contractor, and Plaintiff was an AECOM employee at all material times. Id. Plaintiff
alleges that AECOM misused the FEMA Public Assistance Program funds it received after
Hurricane Katrina. Id. at 2-3. Plaintiff alleges that “Defendants knowingly, recklessly or with
willful blindness submitted false information to FEMA, to qualify ineligible buildings for post-
Katrina replacement Funding.” Id. Plaintiff’s claims center around the FEMA assistance received
for the Xavier University gymnasium and electrical distribution system, as well as the
Archdiocese-owned St. Raphael School cafeteria building and Villa St. Maurice complex. Id. at
10-21.
Additionally, Plaintiff alleges that Defendants violated the FCA in connection with at
least seven other AECOM projects throughout New Orleans. Id. at 23. Plaintiff claims that
Randall Krause was employed by AECOM to work on Katrina recovery efforts from 2006 to
2010 and worked on each of the projects at issue (the “Subject Projects”). Plaintiff alleges that
Mr. Krause engaged in fraudulent practices associated with the Subject Projects and that
AECOM became aware of this by 2010 but did not address Mr. Krause’s fraudulent practices. Id.
at 23. Plaintiff claims that he was assigned to AECOM’s New Orleans response unit after Mr.
Krause’s termination, which allowed him to discover inflated repair costs and deflated
replacement costs for the Subject Projects. Id. at 23. Plaintiff claims that after he relayed these
concerns to AECOM, the company failed to inform the Government of these fraudulent practices
or mitigate the overpayments and damages. Id. at 24.
On May 29, 2020, the Government notified the Court of its decision to intervene and
proceed in this case pursuant to Sections 3730(b)(2) and (4) of the False Claims Act. R. Doc. 41.
The Government filed an Intervenor Complaint shortly thereafter, in which it added more
detailed allegations, Subject Projects, and additional defendants, including the Louisiana
Department of Education (“LDE”) and AECOM’s subsidiaries AECOM Technical Services,
Inc., Emergency Response Program Management Consultants, and AECOM Recovery
(collectively part of “AECOM”). R. Doc. 59. The Government alleges that the LDE is liable for
payment by mistake, negligent misrepresentation, and unjust enrichment in connection with the
FEMA funding it managed for the Lawrence D. Crocker Elementary School, the Florence J.
Chester Elementary School Classroom Building, the Florence J. Chester Elementary School
Cafeteria, the Edward Livingston Middle School Main Building, and Fannie C. Williams Middle
School, collectively referred to as the “Recovery School District.” Id. at 66. Specifically, the
Government argues that the Recovery School District received a substantial amount of funding it
was not entitled to receive due to its false descriptions of the pre-disaster design of the schools
and the damage they suffered. R. Doc. 99.
Xavier University was terminated from this lawsuit on June 5, 2020, following a Joint
Stipulation of Dismissal pursuant to a settlement reached between itself and the United States. R.
Doc. 44.
II. PRESENT MOTION
On August 22, 2022, AECOM served a subpoena duces tecum on Xavier, seeking, inter
alia, information concerning Xavier’s settlement with the United States and settlement
negotiations between Xavier and the United States. R. Doc. 202-1 at 10. In response, Xavier filed
a Motion to Quash with this Court, arguing (1) that the subpoena was duplicative of a prior
subpoena served on it by AECOM in 2021; (2) that the information concerning Xavier’s
settlement with the United States was privileged and/or irrelevant and so should be excluded
from any discovery the Court might order Xavier to make, and (3) the subpoena unduly burdened
Xavier. R. Doc. 202-1.
This motion was orally argued before the Magistrate Judge on October 12, 2022.
Thereafter, the Magistrate Judge issued an order granting in part and denying in part Xavier’s
Motion to Quash. R. Doc. 212. The Magistrate Judge ruled that AECOM’s subpoena was not
duplicative, and that the subpoena did not unduly burden Xavier, but also ruled that the
information AECOM seeks concerning Xavier’s settlement with the United States was irrelevant,
and thus granted Xavier’s Motion to Quash as to that material. Id.
AECOM now moves this Court to review that ruling of the Magistrate Judge, seeking
reversal of the partial grant of Xavier’s Motion to Quash. R. Doc. 216. AECOM argues that the
Magistrate Judge’s ruling was clearly erroneous and contrary to law, R. Doc. 216-1 at 1, arguing
that (1) Xavier’s Motion to Quash was untimely; and (2) that the information regarding Xavier’s
settlement with the United States is indeed relevant.
III. LEGAL STANDARD
A magistrate judge’s order on a non-dispositive issue may be set aside if it “is clearly
erroneous or is contrary to law.” Moore v. Ford Motor Co., 755 F.3d 802, 806 (5th Cir. 2014)
(quoting Alldread v. City of Grenada, 988 F.2d 1425, 1434 (5th Cir. 1993)). The party seeking
reversal of the magistrate judge’s order, “carries the burden of establishing that the standard to
set the order aside is met.” Redmond v. Poseidon Personnel Serv., S.A., No. 09-2671, 2009 WL
3486385, at *2 (E.D. La. Oct. 23, 2009).
IV. DISCUSSION
With the above legal standard in mind, the Court will discuss each argument in turn.
A. Timeliness
AECOM first argues that Xavier’s Motion to Quash was untimely as in violation of Federal
Civil Procedure Rule 45(d)(2)(B), which requires that a party provide written objections to a
subpoena within 14 days of service. The Magistrate Judge denied this argument, stating that
“distinct from serving Rule 45(d)(2)(b) written objections, a motion to quash is not subject to the
14-day requirement.” R. Doc. 212 at 9. While AECOM points to some precedent to suggest that
this ruling was incorrect, see, e.g., Duplantier v. Bisso Marine Co., Inc., No. 09- CV-8066, 2011
WL 2600995 (E.D. La. June 30, 2011), there is also undeniably precedent which supports it. See,
e.g., Sines v. Kessler, 325 F.R.D. 563, 566-68 (E.D. La. 2018) (holding fourteen-day time
limitation did not apply to motion to quash non-party subpoena). Accordingly, the Magistrate
Judge’s holding that Xavier’s Motion to Quash was not untimely was not clearly erroneous or
contrary to law.
B. Relevancy
AECOM next argues that the Magistrate Judge’s ruling that the information regarding
Xavier’s settlement with the United States is not relevant, and therefore her partial grant of
Xavier’s motion on that issue, was clearly erroneous. While the Court agrees with every other
aspect of the Magistrate Judge's well-reasoned opinion, on this issue it holds that AECOM is
correct: the information AECOM seeks regarding Xavier’s settlement with the United States is
relevant, potentially admissible, and therefore discoverable.
Relevant evidence is generally admissible. Fed. R. Evid. 402. Federal Rule of Evidence 408
states that “conduct or a statement made during compromise negotiations” is inadmissible.
However, there are exceptions to Rule 408, one of them being that a court may admit this
evidence to prove a witness’s bias or prejudice. Id. Here, AECOM argues, inter alia, that the
settlement information it seeks is relevant because Xavier and its representatives are expected to
testify at trial, and that this information may tend to reveal bias in those witnesses. R. Doc. 216-1
at 15.
As AECOM explains, while Xavier settled with the United States, it continues to expressly
deny liability for the same projects that the government claims constitute FCA violations. Id. at
13–19. Settlement information between Xavier and the United States may reveal Xavier’s factual
position with regard to the projects on which the Government alleges AECOM falsely reported.
For example, the Government alleges that AECOM falsely represented that Xavier’s
underground electrical grid was substantially damaged in Hurricane Katrina. The information
AECOM seeks could reveal communications between the government and Xavier that reflect
Xavier’s continued assertion that the damage AECOM reported did in fact occur, in line with its
continued refusal to admit liability. This information could be used to impeach or diminish the
apparent credibility of testimony for the Government by Xavier or its representatives.
Additionally, as AECOM points out, information concerning the conditions of Xavier’s
settlement with the United States is relevant, and may indeed be admissible under Rule 408, if it
tends to show potential bias or prejudice on the part of the Xavier witnesses: for example, if
Xavier received a discount on the settlement for providing testimony against AECOM in this
matter, AECOM is entitled to discover those facts and thereby test the bias of Xavier and its
representatives.
Accordingly, it was error to hold that the information sought was not relevant, and thus to
grant Xavier’s Motion to Quash in part with regard to that information.
V. CONCLUSION
AECOM’s Motion to Review the ruling of the Magistrate Judge is GRANTED. For the
foregoing reasons, that ruling is hereby REVERSED with regard to the partial grant of Xavier’s
Motion to Quash. Xavier’s Motion to Quash is DENIED in its entirety.
New Orleans, Louisiana, this 22nd day of November, 2022.
by Clon
United States District Judge