*1 Before the undersigned magistrate judge, on reference from the District Court, are three “partially opposed” motions to compel various third-parties to produce potentially privileged information [doc. #s 34, 38, & 53], filed by Defendant, George M. Fluitt, III. After hearing, and upon consideration, the motions are GRANTED, as reformed.[1]

On September 9, 2020, a federal grand jury returned a three-count indictment against George M. Fluitt, III, for (1) conspiracy to defraud the United States and to pay and receive health care kickbacks in violation of 18 U.S.C. § 371; and (2)-(3) offer and payment of kickbacks and bribes in connection with a federal health care program in violation of 42 U.S.C. § 1320a-7b(b)(2)(B); plus a notice of forfeiture.

Pursuant to the investigation of the charges alleged in the Indictment and other related genetic testing fraud cases,[2] the United States (“Government”) came into possession of a voluminous amount of evidence. Because some of the evidence potentially was subject to one or more privileges against disclosure, the Government created a Filter Team or “taint team” to review the materials for privilege. The Filter Team is comprised of attorneys and staff who remain isolated from the prosecution team(s) and are cautioned not to disclose information discovered during the filter process to the prosecution teams assigned to this, and the related criminal cases.

As stated above, the Government's investigation of genetic testing fraud resulted in multiple criminal cases and related prosecutions that required production of the seized discovery material. To fulfill its discovery obligations to the various defendants, respect third-party claimants' asserted privileges, and to resolve privilege disputes, the Government successfully petitioned at least four other courts to enter discovery protocols,[3] which provide a practical mechanism for the Government to notify and resolve potential third-parties' claims of privilege prior to producing their potentially protected material in discovery and to provide an objecting claimant with an opportunity to be heard.

*2 Consistent with these related prosecutions, on December 9, 2020, this court granted the Government's unopposed motion for authorization and entry of a discovery protocol to govern disclosure of material subject to privilege (the “Protocol”). [doc. #s 21-22]. The Protocol provides, in pertinent part, that

(Protocol [doc. # 22]).

In December 2020, the Filter Team emailed counsel for third-parties, Alpha Medical Consulting, Inc.; Clio Laboratories, LLC; Elite Medical Laboratories, Inc.; Performance Laboratories, LLC; Lazarus Services, LLC; and GNOS Medical, Inc. (collectively, “Hurricane Shoals Entities,” hereinafter abbreviated to “HSE”), plus Khalid Satary (“Satary”), copies of the Protocol entered in this case and advised them of their opportunity to receive and review the materials that the Government intended to disclose, so they could make any objections before the material was produced. (Dec. 14, 2020, emails from J. Kosmidis to M. Jampol and A. Leach; Gov.'t Suppl. Brief, Exh. A [doc. # 70-1]).

In February 2021, HSE and Satary provided finalized privilege logs to the Filter Team and defendants in the several cases, including this one. See United States' Notice [doc. # 37]. However, the Filter Team and Fluitt deemed the privilege logs legally insufficient because they lacked requisite specificity. Id. Therefore, the Filter Team sent written requests for clarification and for additional information with the intent to resolve the areas of dispute. Id. In March and April 2021, the Filter Team and counsel for Fluitt sought to meet and confer with counsel for Satary and HSE to request additional information about the privilege assertions in their logs. Id. In May 2021, counsel for Satary and HSE declined, by email and letter, to provide the Filter Team with any further information regarding their privilege logs. Id. In July 2021, the Government, via the Filter Team, notified this court that it did not intend to seek authorization to produce the disputed documents listed on Satary's or HSE's privilege logs. Id.

*3 In July 2020, the Filter Team notified third-party Terry Wilks of the discovery protocol order entered in United States v. Hanley, et al., No. 19-CR-120 (M.D. La. July 16, 2020), and in August 2021, mailed him a copy of his potentially protected material. See United States' Notice [doc. # 37]. In December 2020, the Filter Team notified Wilks by certified mail that his potentially protected material was discoverable and subject to discovery protocol orders entered in this, plus two other cases. Id. As of July 12, 2021, the Filter Team had not received a response from Wilks. Id. The Government, via the Filter Team, does not intend to seek authorization to produce Wilks' potentially protected material. Id.

Apparently unique among the numerous defendants in these genetic testing fraud cases, George Fluitt determined that he required access to the potentially protected third-party material that the Filter Team has declined to seek authorization to produce. Accordingly, on July 9 and July 14, 2021, Fluitt filed the instant motions to compel third-parties, Satary [doc. # 34] and HSE [doc. # 38], respectively, to produce a total of over 57,000 documents of potentially protected material (“PPM”). In his motions, Fluitt argued that the privilege logs prepared by Satary and HSE were completely inadequate because they did not provide descriptions for the documents and communications being withheld pursuant to the various claims of privilege. Because of the privilege log deficiencies and their refusal to redress them, Fluitt concluded that Satary and HSE had waived their claims of privilege.

On September 24, 2021, Fluitt filed a motion to compel third-party, Terry Wilks, to produce all potentially privileged documents identified by the Filter Team under the Protocol. [doc. # 54]. Fluitt argued that Wilks waived privilege over all documents identified by the Filter Team because he and his counsel repeatedly refused to assert privilege over any of the documents sent to Wilks by the Filter Team.

On October 5, 2021, the court held a hearing by Zoom on Fluitt's motion to compel filed against HSE. See Minutes [doc. # 62]. Counsel for HSE appeared at the hearing and argued on behalf of their client. Id. Following the hearing, the court issued a briefing schedule and directed the parties to address specific issues of concern for the court. (Oct. 5, 2021, Order [doc. # 63]).

On October 19, 2021, HSE filed a comprehensive memorandum in opposition to Fluitt's motion to compel and urged the court to deny the motion on multiple grounds. (HSE Opp. [doc. # 65]). HSE noted that there were only 24,819 privilege assertions at issue, and proffered the following arguments against production,

Fluitt filed a reply brief on October 26, 2021, wherein he maintained that HSE had not properly asserted privilege for the documents at issue. (Fluitt Reply [doc. # 69]). Fluitt further argued that the Protocol does not require a showing of relevancy, but, if it did, he cannot show relevancy because he has not seen the documents. Id. Fluitt asserted that, by providing the privilege logs to Fluitt, the Government has determined that the documents are relevant under Rule 16. Id.

On November 3, 2021, the Government filed a supplemental brief wherein it argued that the HSE was bound by the terms of the Protocol because HSE had received notice of the Protocol, which was a lawful application of the court's authority. (Gov.'t Suppl Brief [doc. # 70]). The Government further stated that HSE waited too long to challenge or alter the Protocol. Id. The Government suggested that the court had several options regarding the appropriate remedy, including, to

Id. (citing DeGruy-Hampton v. Ochsner Clinic Foundation LLP, 2021 WL 2514681, *4 & n.18 (E.D. La. June 18, 2021)). The Government alternatively suggested that the court may direct the Filter Team to produce its copies of the documents, which remain in its possession, custody, and control. Id. In fact, “the Filter Team's copy remains subject to the Government's discovery obligations and may bear on the conduct of co-conspirators.” Id. Ultimately, the Government urged the court to grant relief to Fluitt. Id.

On November 22, 2021, Khalid Satary, filed a brief in opposition to the motion compel wherein he adopted HSE's arguments and further stated that enforcement of the Protocol would violate his rights under the Fifth and Sixth Amendments. (Satary Opp. Brief [doc. # 74]). He maintained that none of the privileged documents were relevant to the prosecution against Fluitt, and that the court lacked authority to order a non-resident, non-party to produce documents. Id. He emphasized that the Government had refused to state that the documents were relevant to the prosecution against Fluitt. Id.

*5 Despite notice, Wilks did not file a response to the motion to compel filed against him.

The court held a hearing on Fluitt's motions to compel filed against Satary and Wilks on November 29, 2021. See Minutes [doc. # 77]. Counsel for Satary appeared at the hearing and argued on behalf of their client. Id. Despite notice, however, neither Terry Wilks nor his attorney appeared at the hearing. Id. At the conclusion of the hearing, the court took the matters under advisement. Id.

I. Motions to Compel Production of HSE and Satary's PPM

The principal arguments raised by HSE and Satary focus upon the alleged invalidity and non-binding nature of the Protocol and this court's concomitant lack of authority to compel them to produce the documents at issue. It is the court's understanding, however, that the Government, via the Filter Team, stands ready, willing, and able to provide Fluitt with the potentially privileged documents at issue. Therefore, to redress HSE and Satary's concerns, the court will reform the motions to compel and construe them as directed towards the Government, via the Filter Team, rather than to the non-parties.

Also, for the limited purpose of resolving the present motions only, the court will accede to HSE and Satary's refusal to be bound by, or subject to the Protocol entered in this case.[4] Having done so, however, it necessarily follows that, as non-parties, HSE and Satary are not properly before this court and do not enjoy standing to challenge the sufficiency of the Protocol or the motions to compel, which are now re-directed towards the Government. Certainly, HSE and Satary do not have a basis to challenge the relevancy of the documents to Fluitt's defense where the motions to compel are no longer directed towards them, and they are not properly before the court.

Even if HSE and Satary had timely intervened in this matter to assert their privilege claims, they failed to provide sufficient privilege logs to permit Fluitt and the Government to traverse the claims. It is manifest that “[c]onfidential disclosures by a client to an attorney made in order to obtain legal assistance are privileged.” Fisher v. United States, 425 U.S. 391, 403; 96 S.Ct. 1569, 1577 (1976) (citation omitted). However, “[t]he burden of establishing privilege rests on the party who invokes it.” United States v. Rodriguez, 948 F.2d 914, 916 (5th Cir. 1991), overruled on other grounds by United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849 (1993) (citation omitted). The “privilege must be specifically asserted with respect to particular documents.” United States v. El Paso Co., 682 F.2d 530, 539 (5th Cir. 1982). Furthermore, “[f]or a communication to be protected under the [attorney-client] privilege, the proponent must prove (1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.” United States v. Murra, 879 F.3d 669, 681–82 (5th Cir. 2018) (citations and internal quotation marks omitted). “It is vital to a claim of privilege that the communication have been made and maintained in confidence.” United States v. Pipkins, 528 F.2d 559, 563 (5th Cir. 1976) (citations omitted). The privilege does not extend to communications made in the presence of third parties. Id.

*6 Typically, a non-party withholding

FED. R. CIV. P. 45(e)(2)(A)(i)-(ii).

Indeed, “[t]o facilitate its determination of privilege, a court may require an adequately detailed privilege log in conjunction with evidentiary submissions to fill in any factual gaps.” United States v. Constr. Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996) (citation and internal quotation marks omitted). Stated differently, a person claiming privilege “must submit a detailed privilege log, together with supporting affidavits or other evidence, as well as legal authority justifying the assertion of privilege as applied to each document in question.” United States v. Dolenz, 98-CR-107, 2006 WL 8440128, at *1 (N.D. Tex. June 12, 2006). The log should:

Constr. Products Research, Inc., supra (citation omitted).

A party asserting privilege still must provide “a detailed description of the materials in dispute and state specific and precise reasons for their claim of protection from disclosure.” Jacobs v. Tapscott, Civ. Action No. 04-1968, 2006 WL 1140460, at *1 (N.D. Tex. May 1, 2006) (citations omitted). In the absence of supporting affidavits or other documentation, a log with only a cursory description of each document, the date, author, recipient, and “comments” is insufficient. Constr. Products Research, Inc., supra (citations omitted).

Here, the privilege logs for HSE and Satary are 512 and 274 pages in length, respectively. [doc. #s 39-1 and 35-1]. However, the entries do not provide a description for the documents/emails to explain why each should be protected from disclosure. Id. In the absence of same, the parties cannot meaningfully traverse the sufficiency of the claim of privilege. Accordingly, HSE and Satary have not met their burden to substantiate their claims of privilege.

Furthermore, having credited HSE and Satary's refusal to be bound by the Protocol, see discussion, supra, the court is not inclined to permit HSE and Satary to redress their deficient privilege logs at this juncture. They had ample opportunity to supplement their logs in response to Fluitt's various entreaties and motions, but, instead, opted to rest on the sufficiency of the current logs.

*7 The court further notes that the Protocol contemplates that the Filter Team will provide the disputed potentially protected material to the court for in camera review. The Filter Team, however, did not do so, and, in any event, HSE and Satary have disavowed the Protocol. Moreover, “resort to an in camera review is appropriate only after the burdened party has submitted detailed affidavits and other evidence to the extent possible.” Jacobs, supra. (citations omitted) (emphasis added); see also United States v. Zolin, 491 U.S. 554, 571; 109 S.Ct. 2619, 2630 (1989) (“we cannot ignore the burdens in camera review places upon the district courts, which may well be required to evaluate large evidentiary records without open adversarial guidance by the parties.”). The foregoing precondition has not been met here.

HSE further urged the court to stay resolution of the pending motions until after the Rule 41(g) motion for return of property has been resolved in United States v. Satary, No. 19-CR-00197 (E.D. La. Dec. 2, 2020). The court is not unsympathetic to this request, but, as of the date of this Order, the June trial setting in this case is rapidly approaching,[5] and all involved have attempted to resolve these issues for over one year. Nonetheless, the court will stay the effect of this order for fourteen (14) days to allow additional time for a decision on the pending motion(s) in Satary, or the entry of other appropriate relief in that case. The court also hastens to add that production of all the documents at issue here does not constitute a waiver or forfeiture of any privilege claim in any other federal or state judicial or administrative proceedings. FED. R. CIV. EVID. 502(d). Also, to promote confidentiality of the documents at issue here, the production will be subject to the terms of the protective order that already is in place. (Protective Order [doc. # 17]).

Finally, in light of the court's disposition of HSE's and Satary's arguments, the court denies HSE's request for entry of a protective order to preclude the Filter Team from producing the subject materials to Fluitt.

II. Motion to Compel Production of Wilks's PPM

Wilks neither submitted a privilege log, nor responded to the motion to compel. The court will infer from his failure to adhere to the Protocol that he, too, contests its validity and enforceability. Again, however, it remains the court's understanding that the Government, via the Filter Team, stands ready, willing, and able to provide Fluitt with the potentially privileged documents at issue. Therefore, to avoid potential issues pertaining to Wilks' apparent refusal to accede to the burdens and benefits of the Protocol, the court will reform the motion to compel and re-direct it towards the Government, via the Filter Team.

So construed, the court finds that Wilks has waived any right he might have enjoyed to appear and contest the motion. To protect his unarticulated rights, however, the effect of the instant order will be stayed for fourteen (14) days and subject to the protections of Rule 502(d), plus the protective order that already is in place. See discussion, supra.

For the foregoing reasons,

IT IS ORDERED that the motions to compel [doc. #s 34, 38, & 53] filed by Defendant George M. Fluitt, III are hereby GRANTED, as reformed. After the passage of fourteen (14) days, and in the absence of any countervailing decision or order by a court in one of the related criminal matters, the Government, via the Filter Team, shall forthwith produce to counsel for Fluitt the documents that formed the basis for the three motions.

*8 In Chambers, at Monroe, Louisiana, on this 4th day of March, 2022.

As these motions are not excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive of any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this ruling is issued under the authority thereof, and in accordance with the standing order of this court. Any appeal must be made to the district judge in accordance with Rule 72(a) and L.R. 74.1(W).

The cases include United States v. Garipoli, No. 19-cr-80196 (S.D. Fla.), United States v. Patel, No. 19-cr-80181 (S.D. Fla.); United States v. Hanley, et al., No. 19-cr-120 (M.D. La.); UnitedStates v. Molz, et al., No. 19-cr-60275 (S.D. Fla.); United States v. Reddy, No. 19-cr-00357 (W.D. Pa.); United States v. Miano, et al., No. 19-cr-60276 (S.D. Fla.); United States v. Hirsch, No. 19-cr-80197 (S.D. Fla.); United States v. Satary, No. 2:19-cr-00197 (E.D. La.); United States v. Simmons, No. 19-cr-60273 (S.D. Fla.); United States v. Ricciardi, No. 19-cr-60277 (S.D. Fla.); United States v. Canchola, No. 19-cr-00473(N.D. Tex.).

The cases include United States v. Patel, No. 19-CR-80181, 2020 WL 3118291 (S.D. Fla. June 8, 2020); United States v. Hanley, et al., No. 19-CR-120-BAJ (M.D. La. July 16, 2020); United States v. Canchola, No. 19-CR-473 (N.D. Tex. Nov. 27, 2020); United States v. Satary, No. 19-CR-00197 (E.D. La. Dec. 2, 2020).

Albeit, the Fifth Circuit has upheld the practice of permitting a government filter team to screen for privileged materials. See United States v. Jarman, 847 F.3d 259, 266 (5th Cir. 2017).

A motion to continue [doc. #78] has been filed today, but has not been reviewed and ruled upon by Judge Doughty.