Under Seal 1 v. United States (In re Grand Jury 2021 Subpoenas)

87 F.4th 229

IN RE: GRAND JURY 2021 SUBPOENAS.

Under Seal 1; Under Seal 2, Movants - Appellants,andUnder Seal 3; Under Seal 4; Under Seal 5; Under Seal 6; Under Seal 7 Movants, v. United States of America, Respondent - Appellee.

In re: Grand Jury 2021 Subpoenas.

Under Seal 1; Under Seal 2, Movants - Appellants,andUnder Seal 3; Under Seal 4; Under Seal 5; Under Seal 6; Under Seal 7, Movants, v. United States of America, Respondent - Appellee.

In re: Grand Jury 2021 Subpoenas.

Under Seal 1; Under Seal 2, Movants - Appellants,andUnder Seal 3; Under Seal 4; Under Seal 5; Under Seal 6; Under Seal 7 Movants, v. United States of America, Respondent - Appellee.

No. 22-1654

No. 22-1655

No. 22-1656

United States Court of Appeals, Fourth Circuit

Argued: March 9, 2023

Decided: November 22, 2023

Appeals from the United States District Court for the District of Maryland, at Baltimore. Stephanie A. Gallagher, District Judge. (1:21-cv-00556-SAG)

ARGUED: Arnold Weiner, RIFKIN WEINER LIVINGSTON LLC, Baltimore, Maryland, for Appellants. Leo Joseph Wise, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Before GREGORY and WYNN, Circuit Judges, and FLOYD, Senior Circuit Judge.

Dismissed in part and affirmed in part by published opinion. Senior Judge Floyd wrote the opinion in which Judge Gregory and Judge Wynn joined.

FLOYD, Senior Circuit Judge:

Appellant John Doe is a medical malpractice attorney. While representing a client, Jane Roe, he engaged in settlement negotiations with the University of Maryland Medical System (UMMS). Four additional appellants assisted Doe in his representation of Roe: Law Firm 1; Lawyer 1 (a principal of Law Firm 1); Law Firm 2; and Lawyer 2 (a principal of Law Firm 2).¹

The negotiations between Doe and UMMS proceeded poorly, as what Doe purported to be a good faith, legal settlement offer was perceived by UMMS as surreptitious extortion. Generally speaking, Doe sought $25 million for Roe. But, among other things, Doe also made any settlement between Roe and UMMS contingent on his personal receipt of an additional $25 million that would effectuate his retention by UMMS as a private consultant of sorts. Also accompanying the settlement offer was Doe's threat of initiating a smear campaign targeting the hospital system if it did not acquiesce to his terms.

A grand jury indicted Doe, charging him with attempted extortion in violation of 18 U.S.C. §§ 1951 and 1952. While the grand jury investigation remained ongoing, a discovery dispute ensued in Doe's active criminal case, culminating in a district court's denial of the government's request for compelled reciprocal discovery. Shortly thereafter—at the government's request—the grand jury issued multiple subpoenas duces tecum to the lawyers and firms that assisted in Doe's representation of Roe—and in the formation of the alleged extortion scheme. Doe and Roe moved to quash the subpoenas, which the district court overseeing the grand jury proceedings denied. That court then granted in part a subsequent motion filed by the government to compel production.

Doe and Roe now ask this Court to reverse the district court's orders first denying their motions to quash and then compelling production. Law Firm 2 and Law Firm 1 also ask us to reverse the district court's order compelling production, but only insofar as it pertains to one particular privilege log. For the reasons that follow, we dismiss the appeal as to Doe for lack of appellate jurisdiction. We otherwise affirm the district court on all remaining grounds.

I.

Doe brought medical malpractice claims against UMMS for decades. Multiple of his clients suffered catastrophic injuries from failed organ transplants performed by UMMS surgeons. Roe is the widow of a man who died following a kidney transplant performed by UMMS. Following her husband's death, Roe engaged Doe on January 27, 2018, to represent her in a negligence and fraud case against UMMS, alleging that a UMMS surgeon misrepresented the risks associated with the transplant.

Doe commenced settlement negotiations on Roe's behalf. Generally speaking, Roe sought six things: (1) UMMS's termination of the doctors involved in her husband's treatment; (2) a personal meeting between Roe and Doctor 1, Chief Surgeon at UMMS and head of the Transplant Department; (3) UMMS's assumption of all medical bills related to her husband's treatment; (4) the creation of a training video featuring Roe to be shown to healthcare professionals that would close with Roe stating, "this is being prepared in memory of [my] late husband, [ ]"; (5) Doe's retention by UMMS as a private consultant to its Department of Transplantation; and (6) $25 million in "punitive damages." Joint Appendix (J.A.) 1988, 2186. At one point, Roe explained that she sought a consultancy agreement between Doe and UMMS so that Doe "would sit in at UMM[S] board meetings, . . . would be compensated for the consultancy[,] and . . . could be aware if doctors that were fired from the UMMC kidney transplant center [were ever] re-hired." J.A. 1988.

Doe communicated frequently with Doctor 1 between February and May of 2018. These communications included multiple meetings for dinner or drinks during which they discussed the facts of Roe's case. In a witness interview, Doctor 1's wife, who attended some of these dinners, effectively stated that Doe adopted a sort of carrot-stick approach to the discussions—offering to have her and Doctor 1 to his Miami home to drive his Rolls Royce, but also insisting that Doctor 1 did what Doe demanded so that they could "be friends" and so that "everything [was] going to be ok." J.A. 2054. Doe and Doctor 1 also exchanged texts during this period, including one message from Doctor 1 stating, "I explained everything [to Employee 1²] that we are in jeopardy for fraud and punitive damages. She understands. The ball is in your court." J.A. 2052. According to Appellants, Doctor 1 also informed Doe that UMMS faced other potential claims for failed transplants under similar circumstances. Opening Br. 9 (citing J.A. 1979, 1981-82).

On April 24, 2018, Doe engaged Law Firm 2 to aid in his representation of Roe. Law Firm 2 was to provide services including "research, the writing of a letter(s)[,] and other assistance in connection with the potential resolution of [the] matter involving [Roe] in the[ ] dispute with [UMMS]." J.A. 2056.

On April 30, after delivering a proposed settlement agreement to Employee 1, Doe and an associate in his employ, Lawyer 3, met with Employee 1, Doctor 2, and Lawyer 4. Doctor 2 was the head of the Maryland Medicine Comprehensive Insurance Program used by UMMS, and Lawyer 4 was outside counsel for UMMS. During the meeting, Doe presented his settlement demands. He emphasized that, given the numerosity of cases against UMMS that he had recently received, "UMMS would have to pay a premium for confidentiality." J.A. 2060. He threatened to "do a great deal of damage to [Doctor 1's] international reputation," and to "put advertisements [about UMMS] on the internet unless a deal was struck." Id. Doe elaborated on all of the flaws that he perceived in the transplant process, and stated that Doctor 1 "already admitted that 'they screwed up the underlying case.' " J.A. 2061.

In addition to describing where he would advertise and publish unsavory information about UMMS, Doe played a mock television commercial that he and Roe created, which explained Roe's story and showed images of her husband's necrotic fingertips and amputated leg—both symptoms attributable to the failed transplant. J.A. 2062. Doe effectively threatened to go public with the video—in particular, he threatened to create an "internet bomb" whereby he would fund disparaging advertisements that would display to prospective patients on the UMMS website itself. Id. When asked whether such a plan was legal, Doe and Lawyer 3 did not respond to the question, and instead stated that they would not commence this plan until UMMS "had an opportunity to consider their demand." Id. Doe reiterated the $25 million demand for Roe, as well as the demand that he be retained—with an additional $25 million payout to him personally—as a consultant to UMMS in exchange for his confidentiality, and to conflict him out of future cases.³ The meeting concluded when the UMMS representatives told Doe that they had a hard-stop time that day, but not before they advised Doe to cease contact with Doctor 1.

In June 2018, Doe retained Law Firm 1 to provide a variety of services in connection with the Roe case, including advising on the consultancy portion of the proposed settlement agreement. On June 22, 2018, Doe and Lawyer 3 again met with Employee 1, Lawyer 4, and Employee 1's associate Employee 2. Doe presented a more detailed consultancy proposal than he had previously. In Employee 2's contemporaneously recorded notes, she wrote that Doe sought to "become consultant for [the] hospital," and "defend cases over a [period] of time." J.A. 2159. Per Employee 2's notes, Doe sought a $25 million payment for his consulting services, though he stated that he "could make [it] $100 [million]." J.A. 2162. Doe reiterated many of the same advertising and reputational threats from the prior meeting. He explained that his threats were not threats because "I don't want to do it, so don't make me do it[.] [T]hat means it's not a threat [because] I don't want to do it." J.A. 2164. He also explained that without the consultancy agreement for him, there would be no settlement of Roe's case against UMMS.

On August 13, 2018, UMMS contacted the U.S. Attorney's Office, complaining that it was the victim of attempted extortion. The FBI began scheduling and surreptitiously recording meetings and telephone conversations between Doe and UMMS representatives. During an August 23, 2018, meeting, UMMS representatives asked Doe if his proposed consultancy amounted to extortion. He responded, in part, "Uh, it's not extortion. Because the - the - the -...