United States of America et al v. Lee Memorial Health System

Filing 263

ORDER granting 250 plaintiff's motion for leave to file reply brief under seal. See order for details. Signed by Magistrate Judge Nicholas P. Mizell on 3/4/2024. (JMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANGELA D’ANNA
ex. rel. UNITED STATES OF AMERICA,
Plaintiff,
v.

2:14-cv-437-JLB-NPM

LEE MEMORIAL HEALTH SYSTEM,
and CAPE MEMORIAL HOSPITAL, INC.,
Defendants.
ORDER
Relator Angela D’Anna requests permission to maintain under seal an
unredacted copy of the reply brief (Doc. 252) she filed in further support of her
objection to the court’s January 13, 2023 order. Consistent with our previously
allowing related items to be filed under seal (see Doc. 210), it is granted. But it seems
the court must clarify, and retreat from a portion of, that June 24, 2022 order.
These sealing issues relate to a dispute about defendants’ invocation of
attorney-client and work-product privileges to withhold certain items from
discovery. The relator originally sought leave to file certain items under seal,
including: an audit report that the relator had sequestered when notified of the
defendants’ privilege claim, her motion to determine defendants’ privilege claims,
and other exhibits related to the motion. (Doc. 209). Because Civil Rule 26(b)(5)(B)

already authorized the submission of the sequestered document under seal, the issue
was whether the relator’s motion and its other exhibits should also be sealed. And
without the benefit of any briefing on the issue, the court provided for the filing
under seal of an unredacted version of the relator’s motion and the publicly available
filing of a redacted version, with any references to privileged material in the
sequestered audit report to be redacted. (Doc. 210). But it seems to have been wrong
for us to suggest that the relator—in its unredacted motion under seal—could quote
or otherwise refer to the contents of a document that it had sequestered pending the
resolution of defendants’ privilege claims.
Rule 26(b)(5)(B) plainly states that, with respect to a document sequestered
due to a claim of privilege, a party “must not use or disclose the information until
the claim is resolved.” (emphasis added). Nonetheless, the relator—while merely
citing two federal district court orders, and none from this court—contends it is
“black letter law” that “a party can refer the Court to the contents of the challenged
document for the purposes of evaluating the privilege claim.” (Doc. 251 at 2). But,
despite relator’s cherry-picked citations, the law on this matter is anything but
hornbook. See, e.g., In re Google RTB Consumer Priv. Litig., No. 21-cv-02155YGR-VKD, 2022 WL 1316586, *2 (N.D. Cal. May 3, 2022) (noting “there is very
little authority addressing the question of whether or under what circumstances a

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party may use the contents of a document clawed back as privileged to challenge the
privilege asserted”).
Notably, relator ignores a previous decision of this court indicating that the
rule does not provide “that the receiving party is able to review the inadvertentlyproduced [sic] material for the purpose of determining whether to move the Court to
compel it.” In re: Disposable Contact Lens AntiTrust Litig., No. 3:15-MD-2626-J20JRK, 2016 WL 7115998, *4 (M.D. Fla. Oct. 24, 2016). Instead, “when a party
makes a claim of privilege pursuant to Rule 26(b)(5)(B), the opposing party has two
choices: it may accept the claim or it may challenge the claim by providing the
material under seal to the Court for determination of the issue of privilege; it may
not, however, review the material to determine for itself whether the claimed
privilege applies.” United States Equal Emp. Opportunity Comm’n v. George
Washington Univ., 502 F. Supp. 3d 62, 74 (D.D.C. 2020) (emphasis added).1
If a party may not review the privileged material, how can it possibly “refer
the court to the contents of the challenged document,” as the relator contends? The
simple answer—it can’t. See also In re Google RTB, 2022 WL 1316586, at *3
(“Nothing in Rule 26(b)(5)(B) suggests that, having returned, destroyed, or
1

See also George Washington Univ., 502 F. Supp. 3d at 78 (“having been informed of the
University’s claim of privilege, the EEOC had the options of accepting the University’s
representation or bringing the dispute to the Court for determination without reviewing the
material. It did neither. The path it chose—reviewing the emails at issue after the University
informed the agency that it claimed privilege over those communications—violated Rule
26(b)(5)(B) of the Federal Rules of Civil Procedure.”).
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sequestered the document, the receiving party may nevertheless examine its contents
and discuss those contents in briefing before a court” or otherwise “requires the
Court to permit the receiving party to examine and brief the contents of the putatively
privileged material in challenging the claim of privilege[.]”).
This reading of the rule “makes sense.” George Washington Univ., 502
F. Supp. 3d at 74. If the privilege or work-product claim is sustained, the recipient
of inadvertently disclosed but privileged information never should have received it
to begin with. 2 Afterall, when a privileged document is properly withheld, the party
contesting the privilege is not entitled to examine it. In re Google RTB, 2022 WL
1316586, at *3. So, when a party has sequestered someone else’s purportedly
privileged information and wishes to challenge the privilege, the proper procedure
is to submit the information under seal and to marshal facts independent of its
contents to support the challenge. Id.
The relator’s motion (Doc. 250) to file her unredacted reply brief under seal
is GRANTED. The clerk is therefore directed to maintain Doc. 252 under seal.
ORDERED on March 4, 2024

2

In fact, Lee Health never produced the document, inadvertently or otherwise. The relator
apparently removed the audit report from a Lee Health computer folder titled “Confidential and
Privileged Attorney Client and Work Product Communication” when she terminated her
employment in 2014. (Doc. 215 at 2).
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