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Case 8:18-mc-00105-MSS-CPT Document 1 Filed 12/10/18 Page 1 of 8 PageID 1

UNITED STATES DISTRICT COURT


MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION f ili·~
• ,,)_

JAMES E. ALBERTELLI, P.A. d/b/a


ALBERTELLI LAW,

Petitioner,
MISCELLANEOUS
v. PROCEEDING NO. _ __
"i~\<b """"c.. \.0~\ 1.5' ~(\
OFFICE OF THE INSPECTOR GENERAL
FEDERAL HOUSING FINANCE AGENCY,

Respondent.
--~--------------------------~/
UNOPPOSED MOTION OF PETITIONER FOR PROTECTIVE ORDER

Petitioner James E. Albertelli, P.A. d/b/a Albertelli Law ("ALAW" or the

"Petitioner"), by and through its undersigned counsel, moves the Court for a protective order

with respect to a November 17, 2017, subpoena duces tecum and a subsequent, nearly

identical September 6, 2018, subpoena duces tecum 1 (the "Subpoenas") issued to ALAW by

the Office of the Inspector General, Federal Housing Finance Agency in conjunction with the

Inspector General, U.S. Department of Housing and Urban Development (together, "the

Government"), pursuant to 5 U.S.C. App. 3 §6(a)(4) of the Inspector General Act of 1978

(the "IG Act").

1 The Government has served two subpoenas -- one on November 17, 2017, and a nearly identical
subpoena on September 6, 2018. The September 6, 2018, subpoena replaced the original subpoena
because the parties agreed that the subpoena should include a certificate of compliance with the Right
to Financial Privacy Act pursuant to 12 U.S.C. §§34012-3422. The proposed order submitted
herewith applies to any production made by ALA W in response to either subpoena.
Case 8:18-mc-00105-MSS-CPT Document 1 Filed 12/10/18 Page 2 of 8 PageID 2

As detailed below, the Subpoenas seek, inter alia, communications between ALAW,

a law firm practicing in Florida, and some of its clients which, though not privileged, 2 are

confidential and protected from disclosure by Florida Bar Rule of Professional Conduct 4-1.6

absent a protective order. 3 In lieu of a motion to quash, ALA W seeks a protective order that

maintains the confidentiality of these responsive documents that are subject to Rule 4-1.6.

In addition, ALA W seeks the entry of an order pursuant to Fed. R. Evid. 502( d) that

protects against a waiver of attorney-client and work product privileges with regard to any

documents produced by ALA W in response to the Subpoenas. Kyle S. Cohen, the Assistant

United States Attorney for the Middle District of Florida, who is representing the

Government with respect to the Subpoenas, does not oppose this Motion or the entry of the

protective order attached hereto as Exhibit A. For these reasons, and as more fully explained

below, the Court should grant this motion and enter the attached protective order.

JURISDICTION

The Court has subject matter jurisdiction over this motion. The Government issued

the administrative Subpoenas pursuant to 5 U.S.C. App. 3 §6(a)(4) of the IG Act. The IG

Act specifically provides that subpoenas issued pursuant to it are "enforceable by order of

2 The requests in the Subpoenas encompass documents and data of ALA W and its clients which are
protected by the attorney-client and work product privileges. ALA W will withhold documents and
data that are subject to a privilege or work product doctrine and will provide the Government with a
privilege log in the format required by Fed. R. Civ. P. 26. This Motion also addresses those
documents which, though not technically subject to the attorney client privilege or work product
doctrine, are nonetheless entitled to protection pursuant to the applicable Florida Bar Rule of
Professional Conduct.
3 The Comment to Florida Bar Rule of Professional Conduct 4-1.6 contemplates that a protective
order such as that ALA W seeks herein is required to protect client confidences: " ... appropriate
protective orders or other arrangements should be sought by the lawyer to the fullest extent
practicable."

2
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any appropriate United States District Court." 5 U.S.C. App. 3 §6(a)(4). Thus, this Court

has jurisdiction to enforce the Subpoenas by upholding them, quashing them or modifying

them. Greene v. Philadelphia Housing Auth., 789 F. Supp. 582, 586, n. 1, 3, 4 (E.D. Pa.

2011) (plaintiff has standing to move to quash HUD administrative subpoena pursuant to

Fed. R. Civ. P. 45, as applicable to administrative agencies through Fed. R. Civ. P. 81(a)(5),

and court has jurisdiction to consider "free-standing" motion to quash subpoena under 5

U.S.C. App. 3 §6(a)(4)); Territorial Ct. ofV.l v. Richards, 847 F. 2d 108, 109 (3d Cir. 1988)

(district court has jurisdiction to enforce administrative subpoena); see also United States v.

Lilburn Geriatric Center, Inc., Civ. Action No. 1:03-CV-1517-JEC, 2003 WL 27381235, *1-

2 (N.D. Ga. Sept. 23, 2003) (deciding case which is before the court on petitioner's motion to

enforce Inspector General's administrative subpoena and respondent's motion to quash

same).

Indeed, the Greene court dealt with the exact jurisdictional issue raised by this matter.

In Greene, HUD issued an administrative subpoena duces tecum to the Philadelphia Housing

Authority ("PHA") seeking unredacted invoices for certain legal expenses incurred by PHA

to investigate whether Carl Greene, the Executive Director of PHA, authorized payment of

legal services for personal legal services. Greene, 789 F. Supp. at 584. Greene filed a

motion for a temporary restraining order to enjoin PHA from producing unredacted legal

invoices that might include notes from meetings with counsel. !d. The Court held that it did

not have jurisdiction over a TRO action because the complaint did not raise a federal

question. !d. at 584-85. The Court determined, nonetheless, to "frame Greene's case as a

motion to quash" the subpoena because the Court did have jurisdiction "to consider whether

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to quash or modify the HUD subpoena." Id at 584, 586. In finding that it had jurisdiction

over a motion to quash or modify the HUD administrative subpoena, the court specifically

cited to the IG Act provision that subpoenas issued under it are "enforceable by order of any

appropriate United States district court." ld at 586.

Thus, like the court in Greene, this Court has jurisdiction over this motion, which is

essentially an unopposed motion for a protective order in lieu of a motion to quash the

Subpoenas. Here, ALAW has informed the Government that it cannot produce certain

responsive materials without (i) a confidentiality order protecting certain communications

subject to Rule 4-1.6 and (ii) a protective order entered pursuant to Rule 502(d). Absent such

protections, ALAW would have no option but to move to quash the Subpoenas.

FACTUAL BACKGROUND

ALAW is a full-service real estate law firm headquartered in Tampa, Florida. By the

Subpoenas, the Government seeks certain categories of documents and information from

ALAW. Documents responsive to the Subpoenas include (i) communications between

ALAW, a law firm, and its clients, which, even though they may not be privileged, they are

confidential and protected from disclosure by Rule 4-1.6, and (ii) information covered by the

attorney-client, work-product and other privileges.

To protect ALAW from violating Rule 4-1.6, ALAW seeks entry of a protective

order in the form attached as Exhibit A hereto. Further, because ALAW is a law firm, there

is a heightened possibility of an inadvertent disclosure of privileged information as many of

the responsive documents are either privileged or they contain information protected by the

attorney-client privilege and the work-product doctrine. Therefore, the parties have agreed

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that there is a need for the Court to enter a protective order under Rule 502(d) in the form

attached as Exhibit A hereto.

MEMORANDUM OF LAW

I. ALAW Requires Entry of a Confidentiality Order Regarding Client


Confidential Documents, ESI or Information

Florida Bar Rule 4-1.6(a) imposes strict confidentiality requirements on information

a lawyer obtains during the representation of a client. The rule provides that except for

certain specified situations, "[a] lawyer must not reveal information relating to representation

of a client ... unless the client gives informed consent." Rule 4-1.6(a) Further, under

Rule 4-1.6(e) and (f), "[a] lawyer must make reasonable efforts to prevent the inadvertent or

unauthorized disclosure of, or unauthorized access to, information relating to the

representation of a client" and "[w]hen disclosure is mandated or permitted, the lawyer must

disclose no more information than is required to meet the requirements or accomplish the

purposes of this rule." Moreover, the comment to the rule shows an intent to apply the rule

broadly: the "confidentiality rule applies not merely to matters communicated in confidence

by the client but also to information relating to the representation, whatever its source."

Here, the Subpoenas seek documents, ESI or information that ALA W obtained during

its representation of certain of its clients. Some of this information, although not privileged,

is confidential to ALAW's clients and is covered by Florida Bar Rule 4-1.6. The Comment

to Rule 4-1.6 provides that" ... appropriate protective orders or other arrangements should

be sought by the lawyer to the fullest extent practicable." Therefore, ALAW seeks entry of

the protective order attached as Exhibit A hereto to protect ALA W from violating Rule 4-1.6.

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II. ALAW Requires Entry of a Protective Order Under Fed. R. Evid. 502(d)

Upon entry of an appropriate order by the Court, Fed. R. Evid. 502(d) may be

invoked to protect against the waiver of privilege protected by the attorney-client privilege or

work-product doctrine when information is inadvertently produced. Rule 502(d) provides

that "[a] federal court may order that the privilege or protection is not waived by disclosure

connected with the litigation pending before the court - in which event the disclosure is also

not a waiver in any other federal or state proceeding." Fed. R. Evid. 502(d); see also

Tracfone Wireless, Inc. v. Simply Wireless, Inc. et al., Case No. 1:15-cv-24565, 2016 WL

4581320, *4-5 (S.D. Fla. Aug. 16, 2016) (entering 502(d) order); Pragmatus AV, LLC v.

Citrix Sys., Inc., No. 11-cv-62484, 2012 WL 12094515, *10 (S.D. Fla., Jul. 18, 2012).

Federal courts routinely enter such orders upon request of the parties. See e.g., Sankar v.

Napleton's Palm Beach Imports, LLC, No. 16-cv-80129, 2016 WL 528466, *1 (S.D. Fla.,

Feb. 0, 2016); Rudolph v. Correct Care Solutions, LLC, No. 5:15-cv-317, 2016 WL 1104612,

*1 (N.D. Fla., Mar. 19, 2016).

Thus, because ALA W is a law firm, there is an increased risk of the inadvertent or

other production of documents, ESI or information containing information covered by the

attorney-client or work-product privileges. For this reason, ALAW requests entry of a

protective order under Rule 502(d) in the form attached hereto as Exhibit A.

CONCLUSION

Therefore, for the reasons set forth herein, the parties respectfully request that the

Court enter an order pursuant to Rule 502(d) in the form attached hereto as Exhibit A.

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CERTIFICATE OF GOOD FAITH CONFERENCE

Pursuant to Local Rule 3.01(g), the undersigned certifies that counsel for the movant

has conferred with Kyle S. Cohen, the United States Attorney for the Middle District of

Florida, who is representing the Government with respect to the Subpoenas, and who

informed the undersigned that the Respondent is unopposed to the relief sought herein and is

unopposed to the proposed order attached hereto as Exhibit A.

Dated: December 10, 2018

Respectfully submitted,
PHELPS DUNBAR LLP

A. Brian Albritton (FBN 0777773)


brian.albritton@phelps.com
Sharon Carlstedt Britton (FBN 0012735)
sharon. bri tton@phel ps. com
100 South Ashley Drive, Suite 2000
Tampa, Florida 33602-5311
Ph: 813-472-7550; Fax: 813-472-7570

Attorneys for Petitioner, James E. Albertelli,


P.A. d/b/a Albertelli Law

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on this 1Oth day of December, 2018, I electronically filed

the foregoing with the Clerk of the Court using the CM/ECF system which will provide

electronic service on Kyle S. Cohen, Esq., Assistant United States Attorney for the Middle

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District of Florida, Civil Division, Kyle.Cohen@usdoj.gov; Special Agent Jamila Davis, U.S.

Dept. of Housing and Urban Development, JDavis@hudoig.gov; Special Agent Kelly

Burlingame, Federal Housing Finance Agency, Kelly.Burlingame@fhfaoig.gov.

Sharon Carlstedt Britton


Attorney

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PD.25014976.1
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