U.S. ex rel. Pogue v. Diabetes Treatment

• Decision Date: 11 April 2006
• Docket Number: No. 04-6130.,04-6130.
• Parties: UNITED STATES ex rel. POGUE, Plaintiff-Appellee, v. DIABETES TREATMENT CENTERS OF AMERICA, INC., et al., Defendants, HCA, Inc. and West Paces Medical Center, Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 462

444 F.3d 462

UNITED STATES ex rel. POGUE, Plaintiff-Appellee, v. DIABETES TREATMENT CENTERS OF AMERICA, INC., et al., Defendants, HCA, Inc. and West Paces Medical Center, Appellants.

No. 04-6130.

United States Court of Appeals, Sixth Circuit.

Argued: September 14, 2005.

Decided and Filed: April 11, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED: Richard P. Bress, Latham & Watkins, Washington, D.C., for Appellants. Bruce J. McKee, Hare, Wynn, Newell & Newton, Birmingham, Alabama, for Appellee. ON BRIEF: Richard P. Bress, Latham & Watkins, Washington, D.C., Steven A. Riley, Amy Jo Everhart, Bowen, Riley, Warnock & Jacobson, Nashville, Tennessee, for Appellants. James B. Helmer, Jr., Helmer, Martins, Rice & Popham Co., Cincinnati, Ohio, for Appellee.

Before: CLAY, GIBBONS, and GRIFFIN, Circuit Judges.

GIBBONS, J., delivered the opinion of the court, in which CLAY, J., joined.

GRIFFIN, J. (pp. 474-478), delivered a separate opinion concurring except as to Section II B.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Appellants West Paces Medical Center ("West Paces") and HCA, Inc. ("HCA") appeal a discovery order issued by the United States District Court for the District of Columbia in the case of United States ex rel. Pogue v. Diabetes Treatment Centers of America, Inc. Plaintiff-appellee Scott Pogue brought suit under the False Claims Act, 31 U.S.C. § 3729 et seq., alleging that various financial incentive arrangements between health care providers and referring physicians violate federal law. Pogue's case was filed in the United States District Court for the Middle District of Tennessee (the "Tennessee district court"). On October 26, 2000, the Pogue case was transferred by the Judicial Panel on Multi-District Litigation ("JPMDL"), along with related cases from at least ten other districts, for consolidated pretrial proceedings before Judge Royce C. Lamberth in the United States District Court for the District of Columbia (the "D.C. district court").

West Paces, a hospital, was one of the original defendants in the Pogue case, but had the claims against it dismissed on May 27, 2004, pursuant to a settlement agreement. The Pogue case continues, however, against Diabetes Treatment Centers of America, Inc. ("DTCA"). HCA, a health care provider with approximately 191 affiliated hospitals worldwide, wholly owns West Paces. Pogue maintains that both West Paces and other HCA-owned hospitals maintained illegal relationships with DTCA. In addition to being the corporate parent of West Paces and the corporate parent of other hospitals allegedly connected to DTCA, HCA is itself a party defendant in many of the other multi-district litigation ("MDL") cases that have been consolidated before Judge Lamberth along with the Pogue case. The consolidated litigation is collectively captioned In re Columbia/HCA Healthcare Corp. Qui Tam Litigation, No. 10-MS-50 (JPMDL No. 1307). Despite these connections, HCA has never technically been a party to the Pogue case.

During discovery, HCA inadvertently disclosed certain documents to Pogue. Before Pogue could copy the documents, however, HCA recovered them and asserted that it would not reproduce them because they were privileged attorney-client communications. The district court's order, which forms the basis of this appeal, compels HCA to turn over to Pogue the previously disclosed documents and further orders that any privilege over the subject matter of the disclosed documents has been waived.

For the following reasons, we dismiss the appeal for lack of jurisdiction.

I.

On February 20, 2002, Pogue served a subpoena duces tecum on HCA, which is headquartered in Nashville, Tennessee. Because Pogue sought to inspect HCA documents in Brentwood, Tennessee, the documents-only subpoena issued from the Tennessee district court.¹ After the parties failed to agree on the scope of the production that would occur pursuant to the subpoena, Pogue moved to enforce the subpoena in the D.C. district court. HCA filed a short response to Pogue's motion, asserting that the D.C. district court lacked jurisdiction to enforce the subpoena duces tecum because only the issuing court may enforce a subpoena. HCA informed Judge Lamberth that it would move the Tennessee district court to quash the subpoena.

HCA then filed a motion to quash in the Tennessee district court. In its supporting memorandum, HCA argued that the Tennessee district court was the most appropriate forum to rule upon its motion to quash. Pogue filed a response, opposing the motion, in part, on the grounds the MDL court was the most appropriate forum to enforce, modify, or quash the subpoena. On November 21, 2002, the Tennessee district court issued an order finding that it lacked jurisdiction to consider HCA's motion to quash. The Tennessee district court held that a motion to quash a subpoena issued in a case that has been transferred for MDL proceedings must be decided by the MDL court, because the motion to quash is part of the consolidated pretrial proceedings. HCA did not appeal the Tennessee district court's order.

After the Tennessee district court denied HCA's motion to quash, HCA refiled the motion in the D.C. district court. Pogue then refiled his response to HCA's motion to quash, as well as the Tennessee district court's order. Thus, the D.C. district court effectively had before it all of the documents filed with or issued by the Tennessee district court.

In a memorandum opinion and order issued on December 18, 2002, Judge Lamberth found that he had jurisdiction to rule on Pogue's motion to compel compliance with the subpoena. United States ex rel. Pogue v. Diabetes Treatment Ctrs. of America, Inc., 238 F.Supp.2d 270, 273 (D.D.C.2002). Finding that HCA's motion to quash the subpoena was untimely, failed to comply with the local rules of the district in which it was filed, and failed to satisfy the signature requirement of Fed. R.Civ.P. 7(b)(3), Judge Lamberth held that HCA had failed to challenge the merits of Pogue's motion to compel. Judge Lamberth issued an order enforcing the subpoena duces tecum as written. Id. at 278-79. In another memorandum opinion also issued on December 18, which concerned the progress of discovery, Judge Lamberth stated that he trusted that HCA's response to the discovery orders would take place within the month.

HCA began producing boxes of documents pursuant to the subpoena duces tecum and the D.C. district court's order enforcing the subpoena on January 6, 2003. Pursuant to prior protective orders issued by the D.C. district court, Pogue's counsel would review and mark for copying documents of interest, at which point counsel for HCA would screen the marked documents for confidentiality and patient confidentiality. On February 11, 2003, HCA produced 399 additional boxes of documents. During its review of these boxes, Pogue's counsel identified and marked for copying various documents. Pogue's counsel also took notes memorializing one such document—a letter from HCA attorney Richard Knight to Joe Calcutt, the Chief Financial Officer of West Paces. The Knight letter discussed a loan from West Paces to a physician. Later that day, during the protective-order review of the documents marked for copying, HCA contract attorneys discovered both the Knight letter, on which Pogue's counsel had taken notes, as well as one other similar letter. The HCA attorneys removed these documents from the boxes to be copied. The next day, HCA's counsel sent an email to Pogue's counsel, indicating that the documents marked for copying had been reviewed "for confidentiality and patient confidentiality" and were ready to be picked up for copying. HCA did not inform Pogue that it had removed any documents from the boxes.

Upon additional review of the boxes that were ready for copying, Pogue's counsel discovered that the Knight letter had been removed. Pogue's counsel immediately faxed a letter questioning HCA's counsel about the removal. HCA's counsel then confirmed that the Knight letter, as well as one other letter that had been marked for copying, had been removed subsequent to Pogue's review of the documents. HCA's counsel asserted that the two letters, which HCA claimed were produced inadvertently, had been removed from the copying boxes because they were protected by the attorney-client privilege. Counsel for Pogue and HCA exchanged letters. Generally, Pogue's counsel argued that any privilege had been waived and the documents must be returned to the boxes. HCA's counsel argued that the privilege had not been waived by the inadvertent disclosure and that the documents would not be returned.

Pogue moved the D.C. district court to compel production of the documents removed from the copying boxes and for sanctions. On May 18, 2004, Judge Lamberth found that the inadvertent disclosure of the documents effected a waiver of any attorney-client privilege that might have protected their disclosure. Judge Lamberth also held, under the precedent of the D.C. Circuit, that the scope of the waiver included all communications relating to the same subject matter. Accordingly, Judge Lamberth entered an order compelling HCA to produce the removed letters and any other communications relating to the same subject matter. Defendant HCA filed a motion to alter or amend the order, which the district court denied. HCA filed a timely notice of appeal.

II.

The substantive questions underlying this appeal are whether the inadvertent disclosure of the allegedly protected documents constitutes a waiver of the attorney-client privilege and, if it does, what is the scope of such a waiver. The parties also dispute whether Judge Lamberth should have applied D.C. Circuit or Sixth Circuit precedent on inadvertent disclosures in deciding these issues. Before we might address these questions, however, we must determine whether we are the correct court to review this order and, if so, whether we may review it at this time. Althou...