Search of Advanced Pain Centers Poplar Bluff v. Ware

11 F. Supp. 3d 967, 2014 U.S. Dist. LEXIS 43177, 2014 WL 1315582
CourtDistrict Court, E.D. Missouri
DecidedMarch 31, 2014
DocketCase Nos. 4:13CV01408AGF, 1:13CV00107 AGF
StatusPublished
Cited by2 cases

This text of 11 F. Supp. 3d 967 (Search of Advanced Pain Centers Poplar Bluff v. Ware) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Search of Advanced Pain Centers Poplar Bluff v. Ware, 11 F. Supp. 3d 967, 2014 U.S. Dist. LEXIS 43177, 2014 WL 1315582 (E.D. Mo. 2014).

Opinion

[969]*969 MEMORANDUM AND ORDER

AUDREY G. FLEISSIG, District Judge.

Petitioners Adbul Naushad, M.D. P.C., also known as Advanced Pain Centers (“APC”), and Billy Jo Ann Wilmert brought this action under Rule 411 of the Federal Rules of Criminal Procedure against Respondents Timothy Ware and other unknown federal agents (“the Government”) seeking to exclude as evidence, or obtain the return of, certain seized documents and objects. This matter was originally filed as six separate civil actions. Petitioners styled their initial filing in each case as a “Motion Pursuant to Federal Rule of Civil Procedure 41 to Quash Search Warrants, Subpoenas, And/Or To Return Property Seized During the Course of the Execution of an Illegal Search.” On Petitioners’ motion, the cases were transferred to the undersigned and consolidated, with the three Southeastern Division cases consolidated into Case No. 1:13CV00107 AGF, and the three Eastern Division cases consolidated into Case No. 4:13CV01408 AGF.

The Court promptly held a conference with counsel, at which a procedure for addressing matters Petitioners identified as needing immediate attention was discussed. At the outset, the parties agreed to address, immediately, certain time-sensitive issues related to the seized documents, with the understanding that an evi-dentiary hearing on Petitioners’ more comprehensive request for relief under Rule 41 would be conducted at a later date.

Consistent with the procedures discussed at the conference, Petitioners filed a Motion for a Temporary Restraining Order (“TRO”) on July 22, 2013, seeking, in part, the immediate return of all items seized, including patient files, personal property, and documents claimed to be protected by the attorney-client and work product privileges, and a prompt hearing was set on dates agreed to by the parties. Although Petitioners filed the motion for TRO only in the consolidated Southeastern Division cases (Case No. 1:13CV00107 AGF), the issues raised and documents covered pertained to all six cases and search warrants. During the pendency of the motion for TRO, the Government permitted Petitioners to inspect and obtain copies of certain of the seized patient files that Petitioners asserted they needed immediately for patient treatment.

On July 22, 2013, the Court conducted a hearing on the motion for TRO. On July 23, 2013, the Court issued an Order granting in part and denying in part the TRO. See Doc. No. 10, Case No. 1:13CV00107 AGF. In that ruling, the Court refused to order the Government to return the seized patient files, based in part on the finding that Petitioners had not met their burden to demonstrate either that Defendants’ actions were unlawful under the Fourth Amendment or that Petitioners were likely to succeed on the merits. The Court did require the Government to provide Petitioners with a redacted version of the [970]*970sealed affidavit in support of the search warrant.2 See id. Defendants were also ordered to make files available to Petitioners for copying by Petitioners’ copy service on a set schedule, and to file an affidavit regarding when the Government first began making arrangements for its own copying service. The Court further advised Petitioners that it would entertain a motion to recover some or all of their copying costs, and set a schedule for filing a motion and briefing regarding the costs.

The Court withheld any ruling with respect to the attorney-client and work product issues pending the parties’ briefing of those issues and further proceedings. In connection with the documents claimed as privileged, the parties agreed to a procedure that involved the use of a Taint Team and Chinese Wall process, such that only Government attorneys who would have no involvement in the prosecution would review the documents at issue.

The Court also set a date for an eviden-tiary hearing on Petitioners’ broader Rule 41 Motion. Prior to the date scheduled however, Petitioners advised the Court that they did not wish to present any further issues other than their request for return of the documents claimed as privileged. On September 17, 2013, the Court heard argument with respect to the privilege issues.

The sole remaining issues currently before the Court for determination are Petitioners’ claim that certain designated documents claimed as privileged should be returned, and Petitioners’ motion to recover the costs of copying seized patient files. For the reasons set forth below, Petitioners’ request for return of the seized documents on the ground of privilege shall be denied, and Petitioners’ motion to recover copying costs shall be granted in part and denied in part.

I. Background

Petitioner Adbul Naushad, M.D. (“Dr. Naushad”) owns and operates several APCs in the Saint Louis vicinity and in Southeastern Missouri. On June 26, 2013, a team of federal agents, task force officers, and state investigators, including local police and agents from the Department of Health and Human Services and the Missouri Board of Healing Arts, executed search warrants at six of the APCs.

The Patient Files

At the time of the search, the respondent federal agents seized approximately 800 APC patient files. There is no dispute that Petitioners had a need to access the APC patient files, which contain imaging and other health information records, in order to treat patients and to obtain payment for the services provided. In preparing to execute the search warrants and conduct its investigation, the Government recognized that Petitioners would need to access seized documents, in particular patient files, and the search warrants described how Petitioners could inspect and [971]*971obtain copies of the seized documents.3

In their initial Rule 41 Motions, Petitioners moved for the return of the original copies of the patient files claiming that they had been seized improperly. Petitioners also asserted that at a minimum, the Government should be required to provide copies of the files as they were necessary to the conduct of APC’s business, and without the files Petitioners would be unable to treat APC patients. See Doc. No. 1. After some dispute regarding the manner in which copies would be made, the parties agreed that the Government would provide copies of the patient files to Petitioners, giving priority to the files of 137 patients who had upcoming appointments at the APCs. Initially, the Government copied the files and provided the copies to Petitioners. The Government was unable, however, to provide Petitioners with the requested patient files in a sufficiently prompt manner prior to the patients’ scheduled appointments. When the Court requested that the Government accelerate its copying process, the Government professed that it was unable to provide the copies more quickly because it did not have an approved contract with a copying service to perform the copying on the Government’s behalf. The Court therefore instructed both parties to cooperate to accelerate the copying process. Petitioners arranged for their own copy service and the parties agreed to the manner in which the copying would be performed.

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Bluebook (online)
11 F. Supp. 3d 967, 2014 U.S. Dist. LEXIS 43177, 2014 WL 1315582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/search-of-advanced-pain-centers-poplar-bluff-v-ware-moed-2014.