United States v. Thompson

310 F.R.D. 542, 2015 U.S. Dist. LEXIS 138453, 2015 WL 5846363
CourtDistrict Court, S.D. Florida
DecidedOctober 7, 2015
DocketCASE NO. 15-80012-CR-ZLOCH
StatusPublished

This text of 310 F.R.D. 542 (United States v. Thompson) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Thompson, 310 F.R.D. 542, 2015 U.S. Dist. LEXIS 138453, 2015 WL 5846363 (S.D. Fla. 2015).

Opinion

ORDER

PATRICK M. HUNT, UNITED STATES MAGISTRATE JUDGE

This matter is before this Court on non-party Humana Inc.’s Motion to Unseal Defendant’s Ex Parte Motion Requesting a Rule 17 Subpoena for Documents and Testimony, and Motion to Quash the Rule 17 Subpoena of Defendant, which were contemporaneously filed September 10, 2015. ECF No. 48. On September 11, 2015, the Honorable William J. Zloeh referred said Motions to the undersigned for disposition. ECF No. 49; see also 28 U.S.C. § 636(b); S.D. Fla. Mag. R. 1. Having carefully reviewed the Motions, the Response, the Reply, the entire case file, and applicable law, having heard arguments by counsel in a hearing on the matter that took place October 1, 2015, and being otherwise fully advised in the premises, [544]*544it is hereby ORDERED AND ADJUDGED that Humana’s Motion to Unseal Defendant’s Ex Parte Motion Requesting a Rule 17 Subpoena for Documents and Testimony is DENIED and that Humana’s Motion to Quash the Rule 17 Subpoena of Defendant is DENIED.

BACKGROUND

Defendant has been charged by superseding indictment with multiple counts of health care fraud in violation of 18 U.S.C. § 1347. ECF No. 34. The superseding indictment alleges in pertinent part that Defendant, through his involvement in various medical provider facilities, engaged in a scheme to defraud by:

(a) causing [the facilities] to report to Hu-mana false and fraudulent diagnoses of Medicare beneficiaries enrolled in a Huma-na Medicare Advantage plan, thereby increasing the capitated payments that Medicare made to Humana and that Hu-mana in turn made to [the facilities], (b) concealing the submission of the false and fraudulent diagnoses, and (c) diverting fraud proceeds for the personal use and benefit of the defendant and others.

ECF No. 34 at 6.

On June 04, 2015, Defendant filed an Unopposed Motion for Leave to File Ex Parte Application for Issuance of Rule 17(c) Subpoenas, ECF No. 26, which was granted July 21, 2015, ECF No. 28. On July 24, 2015, Defendant filed a Sealed Ex Parte Motion to Authorize Issuance of a Rule 17(e) Trial Subpoena, which was granted in a sealed order. ECF Nos. 29-30.

On August 24, 2015, Defendant served Hu-mana with a Rule 17 subpoena. ECF No. 48-1. The subpoena required Humana to produce various documents on September 11, 2015, ten days prior to the previously scheduled trial date of September 21, 2015. ECF No. 48-1. Following the denial of Humana’s motion for an extension of time to comply with the subpoena, ECF No. 47, Humana filed the instant Motions, which seek to unseal Defendant’s ex parte motion requesting the subpoena and to quash the subpoena itself, ECF No. 48. The trial has since been continued and is currently set to begin on March 21, 2016. ECF No. 54.

ANALYSIS

Humana first argues that this Court should unseal Defendant’s ex parte motion requesting a Rule 17 subpoena because Humana is entitled to know the stated basis for the Rule 17 subpoena “so that [Humana] can adequately respond” to and “assess the validity of the subpoena.” ECF No. 58 at 1-2. This Court finds that it is unnecessary and unwarranted to unseal Defendant’s ex parte motion for the purpose stated by Humana.

In order to be entitled to a Rule 17 subpoena requiring production of documents prior to trial, the moving party must meet the so-called Nixon standard by proving the following factors to the court:

(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general ‘fishing expedition.’

United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (footnote omitted). Stated differently, the moving party must show that the subpoenaed documents are relevant, admissible, and specifically identified. See id.; United States v. Silverman, 745 F.2d 1386, 1397 (11th Cir.1984) (“[Rule 17(c) ] only reaches specifically identified documents that will be admissible as evidence at trial, provided that the application for the subpoena is made in good faith.” (citing Bowman Dairy Co. v. United States, 341 U.S. 214, 221, 71 S.Ct. 675, 95 L.Ed. 879 (1951))). This requirement applies even when the moving party files an application for subpoena ex parte, as here. United States v. Beckford, 964 F.Supp. 1010, 1028 (E.D.Va.1997) (“[I]n support of an ex parte application, the requesting party must still demonstrate to the court that the subpoena meets the Nixon standards.” (citing United States v. Reyes, 162 F.R.D. 468, 471 [545]*545(S.D.N.Y.1995))). And while “[Reviewing applications for subpoenas duces tecum, a court needs no assistance in applying the Nixon standard.” United States v. Jenkins, 895 F.Supp. 1389, 1397 (D.Haw.1995) (“Just because the decision to allow pretrial production is left to the court does not mean that it should be heard in an adversary proceeding.”); accord United Beckford, 964 F.Supp. at 1028; see also United States v. Tomison, 969 F.Supp. 587, 594 (E.D.Cal.1997) (“As the Supreme Court has explained, it is the responsibility of the court, not the opposing party, to ensure that a subpoena secured under Rule 17(c) is for a proper purpose.” (citing Bowman Dairy, 341 U.S. at 221, 71 S.Ct. 675)).

In this case, this Court previously reviewed Defendant’s Motion for Leave to File Ex Parte Application for Issuance of Rule 17(e) Subpoenas and determined that Defendant was entitled to file the application ex parte. ECF No. 28. This Court also previously reviewed and granted Defendant’s Sealed Motion to Authorize Issuance of a Rule 17(e) Subpoena. ECF Nos. 29-30. Humana now seeks to unseal Defendant’s Motion to Authorize Issuance of a Rule 17(c) Subpoena, arguing that, without access to Defendant’s motion, “Humana’s attorneys ... are left to speculate as to the range of information truly sought and defendant’s need for the documents to prepare for his ... trial.” ECF No. 48 at 2.

This Court declines Humana’s request to unseal Defendant’s Motion to Authorize Issuance of a Rule 17(c) Subpoena and to effectively review this Court’s prior ruling on Defendant’s Motion for Leave to File Ex Parte Application for Issuance of Rule 17(c) Subpoenas. When a Rule 17 subpoena is issued following an ex parte application, the appropriate method for challenging the subpoena is for the subpoenaed party to file a motion to quash or modify the subpoena, which Humana has done. See Beckford, 964 F.Supp. at 1028 (“Rule 17(c) provides an alternative check on the judicial issuance of a pre-trial subpoena duces tecum—a motion to quash or modify by the subpoenaed party.”); ECF No. 48; see also Bowman, 341 U.S. at 220, 71 S.Ct.

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Related

Bowman Dairy Co. v. United States
341 U.S. 214 (Supreme Court, 1951)
United States v. Nixon
418 U.S. 683 (Supreme Court, 1974)
United States v. Harvey I. Silverman
745 F.2d 1386 (Eleventh Circuit, 1984)
United States v. Beckford
964 F. Supp. 1010 (E.D. Virginia, 1997)
United States v. Jenkins
895 F. Supp. 1389 (D. Hawaii, 1995)
United States v. Tomison
969 F. Supp. 587 (E.D. California, 1997)
United States v. Reyes
162 F.R.D. 468 (S.D. New York, 1995)

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Bluebook (online)
310 F.R.D. 542, 2015 U.S. Dist. LEXIS 138453, 2015 WL 5846363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thompson-flsd-2015.