Leaked Bergosh text messages will be allowed in Edler lawsuit, judge rules
A federal magistrate judge ruled late Friday that a leaked spreadsheet of Escambia County Commissioner Jeff Bergosh's text messages can be used as part of a False Claims Act lawsuit alleging the county's ambulance service knowingly overbilled U.S. government healthcare programs like Medicare.
Escambia County is being sued by its former Medical Director Dr. Rayme Edler, who alleges the county overbilled for services its ambulances provided and did not have a properly trained crew on some ambulances. Wrapped up in those claims are allegations Edler was retaliated against by the county for notifying the state about improperly trained personnel.
Edler's attorneys were given a spreadsheet containing nearly 60,000 text messages from Bergosh's personal phone by former county employee Jonathan Owens, a former political rival of Bergosh and aide to former Commissioner Doug Underhill. Owens told the News Journal that he found the thumb drive with the texts on his desk in 2022 and does not know who left it there.
When Edler's attorneys were given the spreadsheet by Owens, they did not look at it but rather asked the county to redact privileged and personal identifying information as defined under Florida law. Escambia County responded by seeking a protective order from the federal court to block the spreadsheet from the lawsuit and require Edler's attorneys to delete their copy.
U.S. Magistrate Judge Hope Cannon issued an order Friday partially granting Edler's attorney's request to be allowed to use the spreadsheet of texts and partially granting the county's request for a protective order on the spreadsheet.
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Under the order, Escambia County's attorneys will have seven days to redact privileged and personal identifying information as defined under Florida law as Edler's attorneys originally requested.
Then, both sides will have seven days to use that version of the spreadsheet to determine which messages are relevant to the lawsuit or discuss county business, making them public records. Any other message that doesn't fall under those two categories will also be redacted.
If both sides can't agree on which should be redacted within 21 days, the parties must submit the disputed messages to a closed-door review by the judge, who will make the final call.
Once that is complete, Edler's attorneys must delete the unredacted version of the spreadsheet without viewing it.
Escambia County had argued in legal filings that Edler's attorneys had not met the legal burden to show the spreadsheet was relevant to the lawsuit and alleged that a crime had occurred with Owens coming to possess the document.
The county questioned the authenticity of the spreadsheet, and Cannon noted that the county had not compared the Edler version to the verified version possessed by Bergosh.
"Whether the spreadsheet has been or can be authenticated does not determine whether it can be obtained during discovery or retained by Dr. Edler," Cannon wrote. "Also, it is unclear how Owens came into possession of the spreadsheet and, as of this writing, Owens has not been charged with any illegal conduct. And it is undisputed that neither Dr. Edler nor her counsel engaged in any improper conduct to obtain the spreadsheet. Those arguments, therefore, do not advance the ball. Notably, the County does not argue the spreadsheet does not contain relevant messages, and concedes it contains messages that would fall under the Florida Public Records Act."
Only eight pages of the 20-page ruling addressed the legal issues over the text messages. The rest of the ruling focused on other discovery-related issues for Edler's suit, such as billing data for the county's ambulance service.
In her ruling, Cannon established a timeline to resolve the issues within the next few months.
Some of the issues have been pending since 2021, and Edler sought sanctions against the county for allegedly violating a September 2021 court order for discovery over billing data.
Cannon said that both Edler and the county presented evidence that the county had tried to comply with the order, although unsuccessfully.
Cannon made it clear in her order that discovery issues need to be resolved quickly in the case.
"(The) County has had long enough to figure out how to respond to relevant discovery requests and it is time for these discovery issues to be laid to rest," Cannon wrote. "While the County may not want to do it, it may very well be at the point where the County simply needs to transfer the data to Dr. Edler’s counsel and let them figure out how to extract what they need. Thus, while the Court does not find sanctions to be appropriate now, that may not be the case if there continues to be delays."
This article originally appeared on Pensacola News Journal: Leaked Bergosh text messages will be allowed in Edler lawsuit
