United States District Court, S.D. Georgia, Savannah Division
UNITED STATES OF AMERICA, ex rel. PHILLIP S. SCHAENGOLD, Plaintiff-Relator,
MEMORIAL HEALTH, INC., et al., Defendants.
B. AVANT EDENFIELD, District Judge.
Before the Court are Defendants' motions to strike. The first is Defendants' Motion for Protective Order Regarding Inadvertent Disclosure of Privileged Document and Motion to Strike Paragraphs 67, 68, and 69 of the Government's Complaint in Intervention. ECF No. 78. The second is Defendants' Motion to Strike the Second Sentence of Paragraph 93 of Relator's First Amended Complaint. ECF No. 82. Defendants argue that the referenced material in both the United States' ("Government") and Phillip S. Schaengold's ("Relator") Complaints is protected by attorney-client privilege. ECF Nos. 79 at 1; 81 at 1.
For the reasons set forth below, the Court DENIES both of Defendants' motions to strike.
A. Government's Complaint in Intervention
The Government's Complaint references a draft version of a PowerPoint presentation ("Draft Document"). ECF Nos. 50 at 15-16;79 at 2. Defendants allege that they inadvertently produced the Draft Document in response to a Government subpoena that ultimately "produced roughly 30, 000 documents" while represented by a previous attorney ("Prior Counsel"). ECF No. 79 at 1-2. Defendants state that their "executive officers [had] provided Prior Counsel with a copy of the Draft Document for the purpose of obtaining Prior Counsel's legal advice." Id. at 2. Defendants stress that, on advice of Prior Counsel, they removed certain language from the Draft Document that was not included "in the final, non-privileged, version of the document." Id. Therefore, Defendants claim that, as a result of this communication with and advice from Prior Counsel regarding the Draft Document, the Draft Document is privileged. Id. at 2-3.
Defendants, now represented by a different attorney ("Current Counsel"), assert they did not learn that the Draft Document was privileged until October 6, 2014. Id. at 3. Current Counsel then "requested that the government return all copies of the privileged document" and, on October 7, 2014, filed this motion seeking a protective order and to strike paragraphs referencing the Draft Document from the Government's Complaint contemporaneously with a motion to dismiss the Government's Complaint. ECF Nos. 73; 78; 79 at 3.
B. Relator's Complaint
Relator Phillip S. Schaengold ("Relator") filed his First Amended Complaint in this case on August 8, 2014. ECF No. 51. Paragraph 93 of the Complaint states:
In the spring of 2010, Mr. Schaengold requested that a Fair Market Value physician compensation review be conducted by an outside consulting firm. Memorial's legal counsel retained the firm of Sullivan Cotter to analyze [Defendants'] compensation structure in order to determine whether the compensation arrangement violated the Anti-Kickback Statute, the Stark Law, and the False Claims Act.
Id. at 21-22.
Defendants argue that because the second sentence of the quoted paragraph "discusses the retention of an outside consultant by [Defendants] legal counsel, " it is protected by Defendants' attorney-client privilege and, therefore, "Relator is not authorized to disclose this information and was not permitted to include the information in his public filing." ECF No. 81 at 1-2. Accordingly, Defendants filed this Motion to Strike the Second Sentence of Paragraph 93 of Relator's First Amended Complaint. ECF No. 82.
A. Rule 12(1) and the Nature of Motions to Strike
"Pursuant to Rule 12(f), a district court may strike from a pleading any redundant, immaterial, impertinent, or scandalous matter.'" Bethel v. Baldwin Cnty. Bd. of Educ., 371 F.Appx. 57, 61 (11th Cir. 2010) (quoting Fed.R.Civ.P. 12(0). Ruling on 12(f) motions is committed to the discretion of the Court, but such motions are narrow in scope, disfavored in practice, and not calculated readily to invoke the court's discretion.'" Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 59 (1st Cir. 2013) (quoting Boreri v. Fiat S.p.A., 763 F.2d 17, 23 (1st Cir. 1985)). To put a point on it, courts in the Eleventh Circuit generally view 12(f) motions as "time wasters." Such motions waste time by requiring judges to engage in busy work and judicial editing without addressing the merits of a party's claim.' Regions Bank v. Commonwealth Land Title Ins. Co., 2012 WL 5410609, at *2 (S.D. Fla. Nov. 6, 2012) (quoting US. Bank Nat'l Ass'n v. Alliant Energy Res., Inc., 2009 WL 1850813, at *3 (W.D. Wis. June 26, 2009)). This Court views motions to strike with similar disaffection.
This is not to say granting a motion to strike is never proper. If the Court finds that "it is clear from the face of the pleadings that the matter sought to be stricken has no possible bearing on the controversy, " then it may grant a motion to strike. See Wachovia Bank, Nat'l Ass'n v. Lone Pine, Inc., 2010 WL 2553880, at *2 (N.D.Ga. June 15, 2010) (emphasis added).
Here, Defendants seek to have references to material and communications stricken from Government's and Relator's Complaints on the basis of attorney-client privilege. While not squarely within the grounds for a motion to strike under Rule 12(f), courts have considered motions to strike based on attorney-client privilege as motions to strike impertinent material since privileged material is "not able to be discovered and presented at trial." See, e.g., Otero v. Vito, 2005 WL 1429755, at *1 (M.D. Ga. June 15, 2005). Therefore, if the Court finds that the second sentence of paragraph 93 in Relator's Complaint is protected by attorney-client privilege, it can strike that sentence from the pleading. Still, striking material from a pleading "is a drastic remedy to be resorted to only when required for the purposes of justice.'" See Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, ...