Federal prosecutors routinely got a look at documents selected by defense for copying, motion says
A copying service routinely gave Miami federal prosecutors CDs containing documents flagged by the defense for trial preparation, according to a May 26 motion filed on behalf of a doctor charged with health-care fraud.
The motion says the materials are classic attorney work product, report the Wall Street Journal Law Blog, Above the Law, the Florida Bulldog blog and the Southern District of Florida Blog. The service has provided the tagged defense documents to federal prosecutors for at least 10 years, according to the motion filed by Black, Srebnick, Kornspan and Stumpf.
The defense team is asking a judge to toss the indictment against physician Salo Schapiro or to disqualify the prosecution team.
The copying service makes copies of discovery documents for lawyers in federal fraud cases after they review and flag them at a government warehouse. Defense lawyers say they first learned of the issue when federal prosecutors revealed an FBI agent had copied materials from four CDs made for the defense.
When defense lawyers checked with the director of the copying service, he said the practice of cloning the defense documents for the government had been done at the request of an agent of the government and had been going on for at least 10 years, the motion says.
The U.S. Attorney’s office counters in a brief filed last Thursday that there has been no showing that the documents were protected work product and “certainly no willful or purposeful violation of any work product protections.”
The federal prosecutors say the CDs were never requested by anyone on the government’s behalf, and the prosecutors in the case weren’t aware of the duplicate CDs until they were disclosed in April.
An investigation has so far found “that there was simply no pervasive practice of receiving or recording defense discovery, and that it was not a widespread or institutionalized practice,” the brief says. “Although a few matters have been identified where copy CDs were provided, it was either known and agreed to by the defense and the copy CD was maintained for record keeping purposes, or the prosecutors did not have a distinct memory of a copy CD being provided, and in any event, they never looked at any.”
