United States v. Patel

• Decision Date: 23 December 2020
• Docket Number: CASE NO. 19-CR-80181-RUIZ/REINHART
• Citation: 509 F.Supp.3d 1334
• Parties: UNITED STATES, Plaintiffs, v. Minal PATEL, Defendant.
• Court: U.S. District Court — Southern District of Florida

509 F.Supp.3d 1334

UNITED STATES, Plaintiffs,

v.Minal PATEL, Defendant.

CASE NO. 19-CR-80181-RUIZ/REINHART

United States District Court, S.D. Florida.

Signed December 23, 2020

Timothy P. Loper, US Department of Justice, Miramar, FL, A. Lee Bentley, III, Lauren Goldberg Raines, Bradley Arant Boult Cummings LLP, Tampa, FL, James V. Hayes, John Kosmidis, Kathryn C. Furtado, United States Department of Justice, Washington, DC, Jerrob Duffy, United States Attorney's Office, Peter A. Laserna, Southern District of Florida, Miami, FL, Richard O.I. Brown, United States Attorney's Office, Fort Lauderdale, FL, for Plaintiff.

Robyn Lynn Sztyndor, Robyn Lynn Sztyndor, P.A., Coral Gables, FL, Jared Edward Dwyer, Greenberg Traurig, P.A., Miami, FL, Michael Salnick, West Palm Beach, FL, Steven H. Sadow, Pro Hac Vice, Steven H. Sadow PC, Atlanta, GA, for Defendant.

ORDER ON DEFENDANT'S CLAIM OF ATTORNEY CLIENT AND COMMON INTEREST PRIVILEGE [ECF No. 92]

BRUCE E. REINHART, UNITED STATES MAGISTRATE JUDGE

Before the Court is the Defendant's Claim of Attorney Client and Common Interest Privilege. ECF No. 92. This matter was referred to me by the Honorable Rodolfo A. Ruiz, II. I conducted an evidentiary hearing on November 10 and December 4, 2020. I have considered the evidence introduced at that hearing, the relevant pleadings, and the parties’ arguments. I am fully advised and this matter is ripe for decision. For the reasons stated below, Defendant Minal Patel's request to claw back a June 11, 2019, compliance letter is DENIED.

I. Procedural Background

On or about September 24, 2019, the defendant Minal Patel was indicted in the United States District Court for the Southern District of Florida for healthcare fraud and violations of the Anti-Kickback Statute. ECF No. 1.

On or about June 8, 2020, the Court entered an Order governing the disclosure of discovery material that has been, or is potentially, subject to claims of privilege by Defendant Patel and/or third parties (hereinafter the "Discovery Protocol Order"). ECF No. 53.

On or about September 1, 2020, the United States, through its Filter Team, filed a Motion for Authorization to Disclose Materials, namely calls and text messages involving government witness Chris Miano, and ostensible third-party privilege holders John "Bucky" Houser and Lance Tinsley. ECF No. 73.

On or about September 8, 2020, Mr. Houser and Mr. Tinsley filed a joint Response in Opposition to the United States’ Motion for Authorization to Disclose Materials arguing that the calls and text messages are protected by the attorney-client privilege through a common interest agreement that was formed during a meeting at Greenberg Traurig in Ft. Lauderdale on March 1, 2019. ECF No. 80 at 7.

On or about September 10, 2020, the Government filed a Reply to Privilege Holders Houser and Tinsley's Response in which it disputed Mr. Houser and Mr. Tinsley's claims of privilege. ECF No. 84. On or about September 28, 2020, Mr. Houser and Mr. Tinsley filed a Supplemental Memorandum addressing whether third-party privilege holder can receive the remedy of precluding further disclosure of that material in the case against Mr. Patel. ECF No. 102. On or about October 9, 2020, the Government filed a Response to Houser and Tinsley's Supplemental Memorandum. ECF No. 124.¹

On or about September 25, 2020, Mr. Patel filed a Claim of Attorney Client and Common Interest Privilege regarding a compliance letter written and disseminated by attorney Robyn Sztyndor entitled "Use of Telemedicine with CGX and PGX Testing for Medicare Patients" ("compliance letter") that was turned over to the Prosecution Team. ECF No. 92.² Mr. Patel's written motion argues that he received the compliance letter under a common interest privilege with Sean Quilter, a client of Ms. Sztyndor's. Id. at 2–3. Mr. Patel's motion requests an order to claw back and sequester the compliance letter and a hearing to establish any taint. Id. at 5.

On or about October 9, 2020, the Government filed a Response to the Defendant's Claim of Attorney Client and Common Interest Privilege. ECF No. 122. In its Response, the Government argues that no common interest privilege involving Mr. Patel exists that would protect the compliance letter, and even if there was a valid common interest agreement in place, the Defendant cannot establish that the protections afforded by a common interest agreement extend to the compliance letter. Id. at 3–7.

On or about November 4, 2020, the Government filed an Ex Parte Motion for In Camera Inspection of Material to Determine the Applicability of the Attorney Client Privilege and the Crime-Fraud Exception as to Minal Patel. ECF No. 138. Because I conclude that the compliance letter was not privileged when the Government obtained it, I need not address whether the crime-fraud exception applies.

On November 10 and December 4, 2020, I held an evidentiary hearing on Mr. Patel's Privilege Claims, as well as the Third-Party Privilege Claims. ECF Nos. 147, 166.

II. Burden Of Proof

It is well established that "the party invoking the attorney-client privilege has the burden of proving that an attorney-client relationship existed and that the particular communications were confidential."

United States v. Schaltenbrand , 930 F.2d 1554, 1562 (11th Cir. 1991) ; MapleWood Partners, L.P. v. Indian Harbor Ins. Co. , 295 F.R.D. 550, 583 (S.D. Fla. 2013) (J. Hoeveler); Ralls v. United States , 52 F.3d 223, 225 (9th Cir. 1995) ("A party asserting the attorney-client privilege has the burden of establishing the relationship and the privileged nature of the communication.") (emphasis added). The same burden applies to a party asserting a common interest privilege. Del Monte Int'l GMBH v. Ticofrut, S.A., No. 16-CV-23894, 2017 WL 1709784, at *1 (S.D. Fla. May 2, 2017) (J. Goodman) ("The burden of establishing the common interest privilege is on the party asserting it."). The party asserting the privilege also has the duty to prove that once the privilege was established, it was never subsequently waived. United States v. Noriega , 917 F.2d 1543, 1550 (11th Cir. 1990) (citing United States v. Kelly , 569 F.2d 928, 938 (5th Cir. 1978) ); see also United States v. Bay State Ambulance & Hospital , 874 F.2d 20, 28 (1st Cir. 1989). Determining whether the purported privilege exists is a fact-specific inquiry. Firefighters’ Ret. Sys. v. Citco Grp. Ltd. , Case No. CIV-13-373-SDD-EWD, 2018 WL 305604, at *5 (M.D. La. Jan. 5, 2018) (citing United States v. Robinson , 121 F.3d 971, 974 (5th Cir. 1997) ).

Here, Mr. Patel has asserted the privilege under the theory that various joint defense agreements or common interest privileges existed that protect the communications at issue from government disclosure.³ Thus, Mr. Patel carries the burden of establishing not only the existence of the privilege, but that the communications fall within the scope of the privilege, and that the privilege was not subsequently waived.⁴

III. Attorney-Client Privilege And Its Application To Common Interest Agreements

a. The Attorney-Client Privilege in General

The attorney-client privilege is the oldest of the common-law privileges. See Upjohn Co. v. United States , 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The purpose of the attorney-client privilege "is to encourage full and frank communication between attorneys and their clients...." In re Teleglobe Commc'ns Corp. , 493 F.3d 345, 360 (3d Cir. 2007) (citing Upjohn Co. , 449 U.S. at 389, 101 S.Ct. 677 ). "The attorney-client privilege exists to protect confidential communications between client and lawyer made for the purpose of securing legal advice." In re Grand Jury Matter No. 91-01386, 969 F.2d 995, 997 (11th Cir. 1992), quoting In re Slaughter 694 F.2d 1258, 1260 (11th Cir. 1982).

In order to claim privilege over a particular communication, the proponent of the privilege must prove that the communication meets the following criteria: it must be (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client." Restatement (Third) of the Law Governing Lawyers § 68 (2000). See also MapleWood Partners , 295 F.R.D. at 582–583. " ‘Privileged persons’ include the client, the attorney(s), and any of their agents that help facilitate attorney-client communications or the legal representation." In re Teleglobe , 493 F.3d at 359 (quoting Restatement (Third) of the Law Governing Lawyers § 70 (2000) ).

In other words, in order for the attorney-client privilege to protect the communication from disclosure, "it must have been made in confidence and for the purpose of securing or conveying legal advice." See In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.) , 348 F.3d 16, 23 (1st Cir. 2003) ; see also In re Grand Jury Matter No. 91-01386 , 969 F.2d at 997 ("[T]he argument that any communication between an attorney and client is protected by the privilege is overbroad.") (emphasis in original).

The privilege is "not absolute. Because it ‘serves to obscure the truth, ... it should be construed as narrowly as is possible consistent with its purpose.’ " Noriega , 917 F.2d at 1551. See also United States v. Nixon , 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) ("[w]hatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.") (footnote omitted); Fisher v. United States , 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) ("Yet the privilege is not all-inclusive and is, as a matter of law, construed narrowly so as not to exceed the means necessary to support the policy which it promotes.").

b. The Common Interest Privilege

The common interest privilege, although often referred to as a privilege, is not an independent privilege, but an exception to the general rule that a voluntary disclosure of privileged material to a third...