Phony Doctor Indicted in Atlanta Federal Court for Fraudulently Billing Medicare

Matthew Paul Brown, of Nashville, Tennessee, was indicted late last week in the U.S. District Court for the Northern District of Georgia for allegedly persuading Atlanta area physicians to submit claims to Medicare, Medicaid and private insurers, according to an article in the Atlanta Journal-Constitution. Brown, who is not licensed as a physician in Georgia, is alleged to have impersonated a doctor and to have purportedly treated patients between November of 2009 and April 2011. Brown allegedly agreed to pay the doctors from 50 to 85 percent of his reimbursements from Federal healthcare programs and private insurers. A total of $1.2 million in claims were billed.

The U.S. Attorney's Office for the Northern District of Georgia stated that investigators are contacting patients whom Brown allegedly treated. He is also charged with disclosing patient information under false pretenses. The identities of the physicians whom Brown allegedly conspired with were not reported.

More Suggested Guidelines for Electronic Evidence in Federal Criminal Investigations from the National Law Journal

Today's National Law Journal has another article relating to electronically stored information in criminal investigations. For large organizations, subpoenas or requests for information by the government in a criminal investigation are always an unwelcome development, frequently as much because of the potential massive expenditures of time, money and resources they entail as because of their criminal nature. They must, however, be taken with the utmost seriousness, with extreme care to safeguard the rights of the corporation and individuals, and to guard against possible criminal exposure from the very act of responding itself.

The author advises corporations, on becoming aware of a criminal investigation, to issue a notice regarding preservation of evidence to every employee in the corporation, or in relevant offices or departments. Ideally, corporations should already have a comprehensive and thorough document and electronic information retention policy in preparation for any possible demands for information in not only criminal, but civil matters as well. Companies are also advised to take affirmative steps to gather and preserve evidence which might be relevant to a criminal probe upon learning of an investigation or inquiry.

The article also points out the fact that preservation of potential evidence is critical given the danger of obstruction of justice charges by the government. In numerous instances, the government has indicted on charges of obstructing an investigation alone, and not for any alleged underlying crime. The author also notes possible use by the government of any improper handling of evidence as evidence of the corporation's or employees' "consciousness of guilt."

The article recommends forensic management of the hard drives of relevant officers and employees.However, corporations must take care to carefully review the material on the hard drives for any privileged material, at the risk of possible waiver of privileges through disclosure to the government. The author stresses that, even after conducting their own review of the information on hard drives, companies should negotiate an agreement with the government as to a protocol which will ensure that the government's forensic review does not include reviewing privileged information before counsel for the corporation has an opportunity to review and identify the information as privileged. The government and the corporation may enter into a confidentiality agreement under Federal Rule of Evidence 502(e) to guard against possible waiver.

Responding to Criminal Subpoenas for Electronically Stored Information

An article in the New York Law Journal today analyzes the difficulty faced by corporations having countless bytes of electronically stored information when they are served with subpoenas in a federal criminal investigation. In addition to a need for caution in disclosing information so as not to waive any privileges, companies can face staggering costs and consumption of resources in attempting to comply with government demands for information. The authors also note the risk that targeted searches for information might be alleged to be insufficient by a prosecutor or regulator after the fact, creating a risk of additional demands for information or, at worst, charges of obstruction of justice. There are currently no Department of Justice guidelines for requesting electronically-stored information.

The article points out the potential for negotiating with the government regarding the scope of the subpoena and the actions to be taken in compliance. The authors recognize that prosecutors may often be reluctant to narrow the scope of a subpoena out of a concern that doing so may reveal information about its investigation. A corporation may also not want to reveal its methods for responding to a subpoena, considering it to be confidential attorney work-product.

The authors note that Federal Criminal Rule 17(c) sets forth some limitations on the government's power to subpoena. A subpoena must be reasonable, including in the scope of the requests and the burden on the party responding to the subpoena. The article indicates that an objection to the overbreadth of a subpoena's requests for information may be used to negotiate a narrower scope to the subpoena or the manner in which the subpoena will be complied with. The authors cite the Supreme Court's decision in Hale v. Henkel, in which the Court held that subpoena requests must be particularized, as a basis to argue that subpoena requests for electronic information are not sufficiently particularized enough to allow the recipient to identify responsive documents throught the use of targeted search terms or other methods.

The authors further note recent decisions by courts which indicates that courts may soon impose such a requirement that the government negotiate with targets of subpoenas over the scope and manner of compliance. They advocate meet and confer sessions between investigators and recipients of subpoenas, or possible meetings overseen by a magistrate judge or a special master approved by the government, similar to civil litigation, as a step before filing a motion to quash. Involvement of a magistrate or special master would also provide the added benefit allowing a subpoena recipient to submit information in camera.