THE COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Board of Registration in Medicine,

Petitioner

v. Docket No. RM-07-460

Joseph Z. Zolot, M.D.,

Respondent

Appearance for Petitioner:

Amy B. Sharff, Esquire

Complaint Counsel
Board of Registration in Medicine
560 Harrison Avenue, G-4
Boston, MA 02118

Appearance for Respondent:

Jeffrey N. Catalano, Esquire

Todd & Weld, LLP
28 State Street, 31st FL
Boston, MA 02109

Administrative Magistrate:

Judithann Burke

RULINGS ON MOTIONS

On June 20, 2007, the Petitioner, Board of Registration in Medicine (BRM), issued a Statement of Allegations ordering the Respondent, Joseph Z. Zolot, M.D., to show cause why he should not be disciplined for: providing substandard care to thirty (30) patients, committing misconduct in the practice of medicine, committing malpractice, engaging in conduct that undermines the public confidence in the integrity of the medical profession, engaging in conduct that has the capacity to deceive or defraud, and violating G.L. c. 94C and the BRM's regulations.

On the same date, the BRM summarily suspended the Respondent's license to practice medicine, Registration No. 78630, effective immediately, pursuant to 243 CMR 1.03(11). The BRM determined that the Respondent posed a serious and immediate threat to the health, safety and welfare of the public.

On July 16, 2007, the Respondent filed a Motion to Dismiss or Otherwise Vacate the Order of Temporary Suspension along with a memorandum in support of same in which he contended that the BRM's summary decision is predicated upon a fatally defective presentation which is insufficient to withstand scrutiny as a matter of law.

A hearing on the summary suspension was commenced on July 30, 2007 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, 4th FL, Boston, MA. The proceedings were stenographically recorded. The BRM proffered the affidavit of its investigator, Philip Beattie, Jr., along with myriad medical records, eight (8) autopsy reports, and reports from the BRM's expert, Seyed A. Mostoufi, M.D., pertaining to thirty (30) patients, all on a CD-ROM. There are more than five thousand eight hundred (5800) documents depicted on the CD-ROM. There were no witnesses. At the conclusion of the presentation of the BRM's case-in-chief, the Respondent argued his Motion to Dismiss.

The Respondent's Motion to Dismiss was denied and the BRM's summary suspension was upheld in a DALA Decision dated August 27, 2007. The Respondent did not appeal either ruling.

On December 11, 2007, the Respondent filed a Motion to Compel Production of Documents and specified that he is requesting records obtained by the BRM from all government and law enforcement entities. The BRM filed an Opposition to the Motion to Compel on December 31, 2007.

A hearing on the Motion to Compel was held on March 21, 2008 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA. On that date, the United States Attorney filed a Motion to Intervene and a Motion in Opposition to Discovery. All parties submitted memoranda in support of the motions and provided oral arguments. The record was left open for the filing by the Respondent of his Opposition to the Motion to Intervene. This was received at DALA on April 7, 2008.

A. Motion to Intervene

In said Motion, the United States submitted that the Respondent seeks to compel production of, among other items, "federal reports of investigation relating to him". The United States contended that, because these reports are confidential, privileged, and sensitive, and are protected from discovery on a variety of bases, it should be allowed to intervene for the limited purpose of opposing the production of investigative documents belonging to the United States Attorney. The Motion to Intervene is ALLOWED.

The Standard Adjudicatory Rules of Practice and Procedure, 801 CMR 1.01 et. seq., that govern proceedings before this agency are silent as to the criteria for intervening in an administrative action. Accordingly, it is necessary to look toward the Massachusetts and Federal Rules of Civil Procedure for guidance.

Mass. R. Civ. Pro. 24(a) provides:

…the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

With the exception of the substitution of "Commonwealth" for "Untied States", the Mass. Rule is identical to Rule 24(a) of the Federal Rules of Civil Procedure.

The Untied States has filed its Motion to Intervene and set forth several bases for opposing the production of documents by the BRM. One of the grounds that it has raised is that the documents are protected by virtue of the law enforcement privilege. Only law enforcement agencies may avail themselves of this privilege. Sterling Merchandizing, Inc. v. Nestle, S.A., 470 F. Supp. 2nd 77, 83 (D.P.R. 2006). The BRM is not a law enforcement agency. Accordingly, the BRM alone cannot represent the interests of the United States. Further, a granting or partial granting of the Respondent's Motion to Compel could "impair or impede" the United States' ability protect the law enforcement material in question. The Untied States Attorney is entitled to intervene to argue any interests it has in the Motion to Compel.

B. Motion to Compel

With respect to the Respondent's request for documents, the Standard Adjudicatory Rules, supra, are silent with respect to the discoverability of specific classes of documents. Rather, these rules simply set forth administrative procedures to be followed by the parties and the Administrative Magistrate when demands for information are made. The same may be said for the "Toughy" regulations, 28 C.F.R. s. 16.21-16.29, that govern the disclosure of Department of Justice records in federal and state proceedings. See Toughy v. Ragen, 340 U.S. 462, 470 (1951) and Puerto Rico v. United States, 490 F. 3d 50, 61-61 (1st Cir. 2007).

Rule 26(b) (1) of the Massachusetts Rules of Civil Procedure provides:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action… (Emphasis added).

The materials sought by the Respondent are privileged and they are not relevant to the pending action. The Motion to Compel is DENIED.

The BRM investigator had access to, and reviewed many of the documents that were compiled by state and federal law enforcement agencies during his review of the case for purposes of the Summary Suspension. These materials were borrowed from the United States Attorney for this review. The documents are the property of the Department of Justice and they are under the control of the United States Attorney.

The Summary Suspension was upheld on August 27, 2007. The Respondent did not appeal that Decision. The present action involves the BRM's allegations of substandard patient care concerning several patients. The BRM has represented that the sought after materials will not be referred to or relied upon in any way by the BRM in its prosecution on the merits of the allegations. As such, the United States Attorney's files are not relevant in the matter at hand. See In re Jansen, 444 Mass. 112, 118 (2005), Commonwealth v. Lampron, 441 Mass. 265, 269 (2004) and Commonwealth v. Wanis, 426 Mass. 639, 644 (1998). Moreover, the DALA Decision will be based upon the relevant documents proffered by both the BRM and the Respondent before and during the hearing on the merits and witness testimony. The Respondent is entitled to cross examine all witnesses against him and to present the testimony of witnesses and adverse witnesses in his own behalf. Therefore, the Respondent's due process rights remain protected notwithstanding the denial of the Motion to Compel.

The documents that are sought are protected via the law enforcement/investigatory privilege and are exempt form disclosure. See Black v. Sheraton Corp., 564 F. 2d 531, 542 (D.C. Cir. 1977). Generally, when this privilege is claimed, the public interest protected by the privilege is weighed against the public interest served by the disclosure. The privilege, once successfully invoked, protects the information from both release to the other party and from the need for an in camera review. Black, supraat 545. Whether the showing of relevance and need rises to the requisite level is a discretionary determination that must be made on a case by case basis. Miller v. Mehltretter, 478 F. Supp. 2d 415, 424 (W.D.N.Y. 2007).

In the present case, the law enforcement documents are not relevant to the administrative action on the Respondent's medical license. Accordingly, a balancing test involving an in-depth analysis of the Respondent's need versus the public interest in non-disclosure is unnecessary. The documents have no evidentiary value to DALA. Wanis, supra. Limitation of discovery in a civil case is indeed appropriate where a parallel criminal proceeding may be underway. United States v. Kordel, 397 U.S. 1, 12 (1970).

The Unites States has aptly noted that, in Larouche Campaign v. F.B.I., 106 F.R.D. 500, 501 (D. Mass. 1985), the court faced a situation where the U.S. attorney in that case argued that an ongoing criminal investigation was endangered by civil discovery.

Finding that the subjects of the investigation would be able to gain access to information in civil discovery to which they would not be entitled as subjects of a criminal investigation or even defendants in a later case, the court opined that it would stay discovery to ensure they "cannot receive through the 'backdoor' that which cannot be obtained through the front". Larouche, supra502.

Finally, it is necessary to mention that the reports that are sought after are not in the custody of the BRM. Rather, they have been loaned to the BRM under limitations upon their dissemination. The documents were shared with the BRM with the expectation that they would remain confidential and that there would be no relinquishment of control over the ultimate dissemination of the reports. The BRM does not have the right to produce the documents over the objection of the United States Attorney.

For the reasons set forth herein, the Motion to Compel is DENIED.

Division of Administrative Law Appeals,
BY:

Judithann Burke
Administrative Magistrate

DATED: June 2, 2008


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