Case 9:15-cr-80049-KAM Document 203 Entered on FLSD Docket 12/09/2016 Page 1 of 8

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-80049-CR-MARRA/MATTHEWMAN
UNITED STATES OF AMERICA,
v.
SALOMON E. MELGEN,
Defendant.
/
DR. MELGENS MOTION IN LIMINE TO EXCLUDE EVIDENCE
FROM ATTORNEY-RETAINED CONSULTANT ANN ROSE
(MELGEN MIL NO. 7 - ANN ROSE)
Dr. Salomon Melgen respectfully moves this Court to bar the prosecution from
introducing testimony and other evidence from Medicare billing consultant Ann Rose and her
company William E. Rose, Jr. and Associates, Inc. d/b/a Rose & Associates. The prosecution
apparently intends to call Ms. Rose or introduce her documents at trial, notwithstanding the fact
that undersigned counsel explained to the prosecution that Ms. Roses testimony and any
materials may be protected by the attorney-client privilege and work product protection.
Pursuant to Federal Rules of Evidence 402 and 501, Ms. Roses evidence should be excluded.
BACKGROUND
On February 25, 2013, less than a month after Dr. Melgen became aware of the
prosecutions investigation, his counsel hired Rose & Associates as a consultant and attorneyagent to assist their representation of Dr. Melgen during the investigation. Without question, Ms.
Rose was operating at the direction of counsel during this very investigation, and she was privy
to privileged communications involving this very case.

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In late 2014, the defense was cooperating with the prosecutions investigation and
producing documents responsive to subpoenas issued to Dr. Melgens practice when it learned
that the prosecution had issued a grand jury subpoena directly to Ms. Rose and Rose &
Associates. (See, e.g., Ex. A (subpoena).) The subpoenas to Dr. Melgens practice requested
materials related to Ms. Rose, and non-privileged documents were produced. The defense was
not told about the grand jury subpoena to Ms. Rose or what became of that subpoena. The
subpoena to Ms. Rose called for her to testify and produce documents related to the
governments investigation.

(Id.)

Rather than specifying what documents the prosecution

sought, the prosecution directed Ms. Rose to call FBI Special Agent Frances Szczepanski. (Id.)
Around that time, undersigned counsel called and e-mailed the prosecutors to alert them
to the privilege issues. (See Ex. B (email chain).) Defense counsel asked to be involved in any
interview of Ms. Rose to ensure that proper objections were lodged to protect the privilege.
Thereafter, on November 26, 2014, the prosecution confirmed that it had subpoenaed Ms. Rose
directly and this was prior to learning that Arnold and Porter had asked her to do an audit. She
did not produce anything relating to that audit or her relationship with Arnold and Porter. (Id.
at 1.) The defense has not yet been able to confirm that the prosecution team was not exposed to
privileged materials.1

If the prosecution team violated the privilege either through Ms. Roses testimony or
documents, the prosecution team would be conflicted from handling this matter or participating
in assisting the new prosecution team in their preparations. Production of all material related to
Ms. Roses interactions with Special Agent Szczepanski and others would assist the defense in
raising appropriate objections if required. While it is entirely possible that the prosecution used
an appropriate taint team, they have never represented that a taint procedure was utilized with
regard to Ms. Roses materials.

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Despite being excluded from any participation that would have allowed defense counsel
to protect privileged materials, the defense later learned that the prosecution conducted a full
interview of Ms. Rose. The interview was conducted without prior notice to defense counsel and
defense counsel were not allowed to participate. Thus, there was no way to contemporaneously
assert and protect Dr. Melgens attorney-client privilege during that discussion.
In the run-up to trial, the prosecution has signaled its desire to call Ms. Rose as a witness.
Accordingly, Dr. Melgen seeks exclusion of her testimony and any evidence related to Ms.
Roses engagement to assist defense counsel in this very matter. Calling an agent of the
defendants counsel could risk a mistrial, given the sensitive nature of the relationships.
ARGUMENT
Under Federal Rule of Evidence 402, relevant evidence is not admissible if exclusion is
required by another Rule. See Fed. R. Evid. R. 402. Specifically, under Rule 501, federal
common law governs claims of attorney-client privilege and work-product protection. See id. R.
501. These protections bar the admission of Ms. Roses testimony and evidence pertaining to
any and all information she acquired or generated after her February 25, 2013 retention by Dr.
Melgens counsel. To the extent that Ms. Rose possesses relevant, non-privileged information
that occurred outside the attorney engagement, the defense simply asks that the prosecution
proffer such testimony outside the presence of the jury in advance and give the defense an
appropriate amount of time to address any issues. Further, if the prosecution elects to call Ms.
Rose, Dr. Melgen would request that the jurors not be informed that Ms. Rose was retained to
assist defense counsel in the preparation of its defense in this case.

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I.

ANN ROSES EVIDENCE IS PROTECTED BECAUSE SHE WAS AN

ATTORNEY-RETAINED CONSULTANT.
The attorney-client privilege and work-product protection apply to the attorney-agent

relationship between Dr. Melgens counsel and Ann Rose. Under United States v. Kovel, 296
F.2d 918 (2d Cir. 1961), and its progeny, communications and materials shared with and
generated by Ms. Rose during the course of this engagement are protected.
In Kovel, the defendant was a former IRS agent employed by a law firm, and he had
received a grand jury subpoena regarding alleged tax violations by one of the law firms clients.
296 F.2d 918. The defendant refused to testify, asserting that he could not disclose certain
communications regarding the client because they were attorney-client privileged. Id. at 919.
For his refusal, he was convicted of criminal contempt. But on appeal, the Second Circuit
vacated the conviction, observing that the complexities of modern existence prevent attorneys
from effectively handling clients affairs without the help of others . . . The assistance of these
agents being indispensable to [the attorneys] work . . . , the privilege must include all the
persons who act as the attorneys agents. Id. at 921 (citations and quotations omitted); accord
United States v. Pipkins, 528 F.2d 559, 562-63 (5th Cir. 1976) (endorsing Kovel doctrine,
although finding it inapplicable to handwriting samples that client shared with attorney-agent,
because the samples were never confidential to begin with).2
The relationship between Dr. Melgens counsel and Ann Rose is precisely what Kovel
contemplated. She consulted with counsel in connection with this action, concerning Medicare
billing and related issues, concepts [that] are a foreign language to some lawyers in almost all
cases, and to almost all lawyers in some cases. See id. at 922 (discussing accounting concepts).
2

Fifth Circuit cases decided prior to October 1, 1981 are binding precedent in this circuit.
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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The presence of such a consultant, whether hired by the lawyer or by the client, while the client
is relating a complicated . . . story to the lawyer, ought not destroy the privilege . . . . See id. In
short, Ann Roses function as a consultant to Dr. Melgens trial counsel related to issues in this
case, as relayed by Dr. Melgen and his records, for his counsel in order to help them understand
the issues and assist their legal representation. Accordingly, the attorney-client privilege (and
related protections) properly shield this attorney-agent relationship.
II.

THE COMMUNICATIONS EXCHANGED AMONG THE PARTIES AND THE

MATERIALS CREATED THEREFROM WERE INTENDED TO BE
CONFIDENTIAL AND ARE PRIVILEGED.
The exchanges among Dr. Melgen, his counsel, and Ms. Rose carry the well-established

indicia of privileged communications.

A communication is privileged when it is made

confidentially, in [the attorneys] professional capacity, for the purpose of securing legal advice
or assistance. United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991) (citations
omitted). The key question in determining the existence of a privileged communication is
whether the client reasonably understood the conference to be confidential. Id. (citations and
quotations omitted).
Here, Dr. Melgen retained attorneys for their confidential legal advice; those attorneys in
turn retained Ms. Rose for her assistance in providing that legal advice; and when undersigned
counsel first learned that the prosecution contacted Ms. Rose to discuss Dr. Melgen, counsel
reasserted the confidential nature of Ms. Roses privileged information. There has never been
any understanding other than that these communications and resulting materials were
confidential and privileged. Consequently, evidence from Ann Rose should be excluded under
Rule 402 by way of Rule 501.

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CONCLUSION
For the foregoing reasons, the Court should exclude all evidence from Ann Rose at trial.
Respectfully submitted,
/s/ Matthew Menchel
Matthew I. Menchel, Bar. No. 12043
KOBRE & KIM LLP
2 South Biscayne Boulevard, 35th Floor
Miami, FL 33131
(305) 967-6108 (tel)
(305) 976-6128 (fax)
Matthew.Menchel@kobrekim.com

Kirk Ogrosky (pro hac vice)

Murad Hussain (pro hac vice)
ARNOLD & PORTER LLP
601 Massachusetts Avenue, N.W.
Washington, D.C. 20001
(202) 942-5330 (tel)
(202) 942-5999 (fax)
Kirk.Ogrosky@aporter.com
Murad.Hussain@aporter.com

Counsel for Defendant Salomon E. Melgen, M.D.

December 9, 2016

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CERTIFICATE OF GOOD FAITH CONFERENCE

Pursuant to Southern District of Florida Local Rules 7.1 and 88.9, counsel have conferred
in a good faith effort to resolve the issues raised in Dr. Salomon Melgens Motion.
/s/ Matthew I. Menchel
KOBRE & KIM LLP

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CERTIFICATE OF SERVICE
I hereby certify that, on December 9, 2016, I electronically filed the foregoing document
with the Clerk of the Court using the CM/ECF system, which will send a notice of electronic
filing to counsel of record for all parties.
/s/ Matthew I. Menchel
KOBRE & KIM LLP