By Robert Burns, Guest Columnist
Most of the media headlines entailing Bruce Greenstein, Gov. Jindal’s former head of the Department of Health and Hospitals (DHH), have centered around his recent indictment for alleged false testimony during his confirmation hearing and alleged false statements made to a Louisiana grand jury convened by Attorney General Buddy Caldwell to delve into possible misconduct entailing the awarding of the state Medicaid contract to Client Network Services Incorporated (CNSI). Less noteworthy in the news media, but a matter in which Louisiana Voice has taken a keen interest, is the civil trial taking place in Judge Tim Kelley’s courtroom entailing CNSI’s claim of wrongful termination of its contract for which it seeks millions of dollars in alleged damages.
During a hearing in early 2014, Judge Kelley repeatedly sought the status of any Federal investigation into alleged wrongdoing regarding the awarding of the contract. Very reluctantly, David Caldwell, Assistant Attorney General, admitted that the Feds had closed their investigation but emphasized that the State of Louisiana was proceeding forward and emphasized to Judge Kelley that “The AG’s Office has encountered other instances in which the Feds closed an investigation but we continued and ultimately obtained indictments.”
The parties are now in the discovery phases of the civil trial. Attorney Lewis Unglesby, along with Michael McKay and Justin Lemaire, is representing CNSI, and some very intriguing accusations have been bantered about in court hearings. Among those accusations, conveyed at an October 28, 2014, hearing, is that Attorney General Investigator Scott Bailey met with and potentially improperly coached CNSI whistleblower Steve Smith into changing his testimony, resulting in contradictory depositions. It was also at that hearing that David Caldwell, in attempting to defend the visits with Smith by his office and relaying to Judge Kelley that “We didn’t do anything wrong,” emphasized, “We’re not trying to rig a civil case.”
Perhaps Caldwell may indeed not be trying to “rig a civil case” and genuinely seeks only to prosecute Greenstein for his alleged perjury; however, based on a hearing in Judge Kelley’s courtroom today (Monday, December 15, 2014), it appears equally apparent that the State of Louisiana is prepared to fight tooth and nail to prevent CNSI’s lawyers from advancing discovery in the civil trial toward the plaintiff attorneys’ goal of a trial sometime in 2015.
To that end, today’s hearing entailed the fact that CNSI’s lawyers have scheduled a deposition of Stephen Russo, legal counsel for the Department of Health and Hospitals for tomorrow (Tuesday, December 16, 2014). The State’s attorneys, led by Justin O’Brien, sought to block the deposition on multiple fronts including attorney-client privilege.
Throughout Greenstein’s testimony before the grand jury, he repeatedly emphasized that Russo serves as the personal legal attorney for the head of the DHH and thus served as Greenstein’s personal attorney during his tenure as head of the agency. As such, Unglesby relayed to Judge Kelley that any attorney-client privilege had unequivocally been waived through Greenstein’s grand jury testimony. Unglesby said Greenstein was present in court and would be more than happy to state to the court that he waived any attorney-client privilege. O’Brien also indicated to Judge Kelley that the intended line of questioning by Unglesby was overly broad. Unglesby, however, countered that argument by holding up a small folder and relaying his intent to be laser-focused on the pertinent discussions between Russo and Greenstein during the critical period entailing the awarding of the contract.
On two separate occasions, Unglesby made brief reference to material in Greenstein’s grand jury transcript. O’Brien objected and asked that Judge Kelley order the courtroom cleared since statements were about to be made regarding grand jury testimony. Unglesby countered by relaying that the AG’s Office had, and he emphasized that Caldwell may have “likely acted illegally” in doing so, made the grand jury transcript public. Grand jury secrecy, therefore, was no longer an issue. Judge Kelley concurred and emphasized that he’d even read the grand jury testimony accounts in the newspaper and therefore would not be clearing the courtroom.
At one point, O’Brien wanted to introduce into evidence a document that he said would demonstrate that John McLindon, Greenstein’s attorney, had provided contradictory statements. Judge Kelley relayed he’d be happy to look at anything as long as opposing counsel had seen it first. When O’Brien presented a copy to McLindon, he (McLindon) immediately relayed, “That was filed under seal.” Upon hearing that, Judge Kelley relayed that, if the document was filed under seal, nobody, including him, should be looking at it.
Judge Kelley informed Unglesby that it would not be necessary to have Greenstein waive any attorney-client privilege at the day’s proceeding and ruled that the deposition could proceed as scheduled. Judge Kelley was very specific in justifying his ruling in relaying that, in the court’s view, attorney-client privilege had certainly been waived, and he further emphasized that the intended scope of the deposition was in conformity with Louisiana Code of Civil Procedure in terms of not being overly broad nor designed to harass the deponent.
O’Brien asked Judge Kelley to stay his order pending a writ being filed with the First Circuit Court of Appeal. Judge Kelley relayed, “I’m not staying anything. If you take issue with my ruling, you can file that with the First Circuit, but I want to be understood on this matter. In the court’s view, this matter is clear. It’s straightforward. The court views this matter as being very clear and I want it into the record that’s the court’s view.” After O’Brien sought for Judge Kelley to reiterate that he felt it was clear (which Judge Kelley did reiterate), he pulled out a pre-drafted order and asked if Judge Kelley would sign it for the Frist Circuit to consider a stay on his ruling. Judge Kelley relayed that, upon filing, O’Brien could bring the document back up for him to sign (even relaying he could interrupt court if necessary due to the urgency of the matter).
Assuming the First Circuit doesn’t grant a stay, it sure would be interesting to be able to sit in on tomorrow’s deposition. The one thing that was evident today is that the State’s attorneys clearly fear Unglesby being able to question Russo about that critical timeframe and communications he had with Greenstein entailing the awarding of the contract. Based on Greenstein’s willingness to show up at today’s hearing and relay that he’d be happy to formally waive any attorney-client privilege, it seems obvious that Greenstein and McLindon feel they will likely reap a spillover benefit from the deposition entailing Greenstein’s criminal defense.
So, even though the big headlines of the CNSI contract awarding and cancellation may entail Greenstein’s indictment, the far more intriguing aspect of that contract appears to be playing out in the CNSI civil trial in Judge Kelley’s courtroom. Stay tuned folks, Louisiana Voice will keep readers informed as further court hearings transpire.
Louisiana Voice 
Thanks Robert. Seems like a lot of this is flying under the radar.
I think it’s very obvious that Russo has vital information which would likely be damaging to the state’s defense on the civil suit and which may also have a significant benefit to Greenstein. I think they also know Unglesby, with over 20 multi-million dollar judgment awards over his 40-year legal career, is uniquely qualified to pry that information right out of Russo, and I have no doubt he’ll do as he indicated in court and be laser focused in his line of questioning of Mr. Russo.
My guess is some within the DHH upper brass may not be sleeping all that well tonight, and today’s actions by the state attorneys may likely demonstrate just how much they fear both a big tide of momentum toward CNSI on the civil trial as well as a potential total collapse of the criminal trial against Greenstein.
I’d love to be able to purchase a ticket for the deposition (if the price would be reasonable) but, who knows, maybe a transcript may soon be entered into the public record for all of us to see. I found it interesting that Unglesby would openly question Caldwell’s motive in making public Greenstein’s grand jury transcript as well as his point-blank statement that Caldwell may have “likely acted illegally” in doing so.
http://theadvocate.com/news/11077516-123/deposition-of-dhh-attorney-allowed
Robert, apparently Joe Gyan was there. What’s your assessment of his coverage?
Hi Stephen, and thanks for that link. Mr. Gyan certainly captured all of the core essence of what happened but left out some of the more interesting courtroom exchanges (O’Brien’s two attempts to have the courtroom cleared, Unglesby essentially relaying Caldwell had violated the law in making the grand jury testimony public, etc.). I actually forgot one point Unglesby made early on when he said: “Your Honor, the State wants to conveniently waive attorney-client privilege when it’s to their advantage, then invoke what was waived when that fits their need, and then waive again when it’s to their advantage to do so. It doesn’t work that way. Once waived, it’s waived. Period!” I also felt it noteworthy to relay just how strongly Judge Kelley felt about his ruling. He actually relayed to O’Brien that there was nothing for the First Circuit to review because the whole matter is that clear, and he went out of his way to relay that he wanted the court record to reflect that he felt the matter was that clear.
I don’t know if the First Circuit granted an emergency stay (my thought is no), but if it did, given the authoritative assessment by Judge Kelley, it would seem to be nothing more than a stall tactic and they know the deposition is going to transpire sooner or later. I can’t envision Judge Kelley using such emphatic wording if he felt his decision had any chance of being overturned on appeal.
My only other comment is that, if the state attorneys view Russo’s deposition as a “sideshow,” why are they fighting so hard to block it? Nobody should fear a “sideshow,” huh? Unglesby doesn’t waste his time nor that of a deponent, and I’ m sure this case is on a contingency contract. Sideshow my a–!!
Thanks, Robert, for covering this. Sometime when you get a chance could you do a column on why there is no good federal case against Greenstein. Not only that, but nobody, including obviously CNSI seems to think he/they did anything wrong. I don’t get it.
I don’t get it either!
If anyone is curious, the First Circuit Court of Appeal didn’t take long to deny O’Brien’s writ: http://www.auctioneer-la.org/JIndal_Writ_Denied.pdf. It’s sad when a judge of Tim Kelley’s caliber makes such an emphatic statement as: “There’s nothing to review. This matter is clear,” yet attorneys for the State of Louisiana nevertheless rack up more billable hours in a fruitless chase for an appeal. At some point, the concerted efforts to avoid public transparency and disclosure become utterly absurd!!
This will be interesting. The administration will go the mat to protect itself. They aren’t afraid to delay, distract, obstruct, or burn money.