Motion to Compel Discovery and for Sanctions — United States v. Derges, 6:21-cr-03016 (W.D. Mo., Document 20)

Summary

Document 20, filed 04/05/21, in Case 6:21-cr-03016-BCW, is the Defendant's Post-Superseding Indictment Motion to Compel Government Production of Discovery and for Sanctions in United States of America against Patricia Ashton Derges in the Western District of Missouri. It states that the Government has set forth no bona-fide reason for the restrictions it imposed on the Defendant's access to discovery. It prays that the Court order the Government to immediately release its discovery, award attorney's fees, and, absent prompt compliance, dismiss the charges. Exhibit A is a letter dated February 24, 2021, titled Agreement for Non-Dissemination of Discovery, and Exhibit B is an email chain between counsel. The motion bears the /s signature of Albert S. Watkins.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION
UNITED STATES OF AMERICA )
)
Plaintiff, )
)
Vv. ) Case no. 6:21-cr-03016-BCW-1
)
PATRICIA ASHTON DERGES, )
)
Defendant. )

DEFENDANT’S POST-SUPERSEDING INDICTMENT MOTION TO COMPEL
GOVERNMENT PRODUCTION OF DISCOVERY AND FOR SANCTIONS

COMES NOW Defendant, Patricia Derges, by and through her counsel, and for
Defendant’s Motion to Compel Government Production of Discovery and Sanctions or, in the
Alternative, for Dismissal, states to the Court as follows:

1. The undersigned counsel recently was engaged to represent the Defendant herein.

2. On the 17" day of February, 2021, the undersigned formally entered as counsel of
record for the Defendant herein.

3. On the 23" day of February, 2021, the undersigned issued a letter to the Assistant
U.S. Attorneys of record in the present case to address, among other matters, the production of
discovery herein (“Discovery Production Request Letter”), a true and correct copy of which is
attached hereto, incorporated herein by reference and marked Exhibit A.

4. Counsel for the Defendant and AUSA Shannon Kempf have exchanged email
correspondence relating to the Discovery Production Request Letter. The exchange of
correspondence in this regard occurred both prior to and after the unsealing by the Court of the
Superseding Indictment herein.

1

Case 6:21-cr-03016-BCW Document 20 Filed 04/05/21 Page 1 of 13
a At the time of the Arraignment of the Defendant following the unsealing of the
Superseding Indictment, Defendant’s counsel and AUSA Kempf discussed the issues of the
Defendant with the prohibitively restrictive nature of the terms unilaterally being mandated by
the Government in its Discovery Production Request letter. A compilation of the email chain of
correspondence by and between Defendant’s counsel and AUSA Kempf in this regard is attached
hereto, incorporated herein by reference, and marked Exhibit B.

6. Good faith efforts thereafter to reconcile issues relating to Exhibit A with the
Government have been unsuccessful.

7. The Government’s unilateral mandate of a protocol which restricts and encumbers
the flow and access of documentation with participating counsel representing the Defendant and
the Defendant is problematic and effectively disrupts to the detriment of the Defendant her right
to meaningful counsel during even the most robust of non-COVID times. The COVID-19
pandemic, the national emergency arising therefrom, social distancing mandates and health
concerns, in addition to the general geographic location of the Defendant and her counsel, all
combine to significantly compromise the attorney-client relationship; the ability of counsel to
provide legal advice to Defendant; and the Defendant’s ability to garner meaningful interaction
with her counsel.

8. The Government appears to see fit to restrict the ability of Defendant to be
provided access to copies of discovery, the detailed review of which by the Defendant is
necessary for the Defendant to fully prepare for trial herein.

9. The Government has set forth no bona-fide reason for unilaterally imposing the

restrictions on Defendant’s access to discovery.

2

Case 6:21-cr-03016-BCW Document 20 Filed 04/05/21 Page 2 of 13
10. Upon and information and belief, the discovery herein contains a not insignificant
amount of documentation and records.

11. Defendant resides in the Western District of Missouri (Nixa) and Defendant’s
counsel offices in the Eastern District of Missouri (St. Louis).

12. Defendant is actively serving as a State Representative in Jefferson City,
Missouri.

13. Given the Government’s unrestrained protracted and much ballyhooed press
conference announcing details of the original Indictment against the Defendant herein, the
Government has no colorable rationale behind the restrictions and encumbrances which naturally
flow from the unilaterally mandated protocol set forth in the attached Exhibit A.

14. In short, the Defendant and her counsel seek access to the discovery of the
Government in a fashion devoid of restrictions and encumbrances which serve no good faith or
credible purpose such as to permit the Defendant and her counsel to each have unrestrained
access to the Government’s discovery for the preparation of Defendant’s defense herein and for
use herein.

WHEREFORE, Defendant prays this Honorable Court issue an Order directing the
Government to immediately release the Government’s discovery herein, to award the Defendant
her attorney’s fees incurred to prepare and prosecute the present motion and, in the absence of
the prompt compliance by the Government with the Order sought, the alternative remedy of
dismissal of the charges herein, and for such other and further relief as the Court deems just and

appropriate in the circumstances.

3

Case 6:21-cr-03016-BCW Document 20 Filed 04/05/21 Page 3 of 13
KODNER WATKINS, LC

By:__/s Albert S. Watkins
ALBERT S. WATKINS, LC MO#34553
7733 Forsyth Boulevard, Suite 600
Clayton, Missouri 63105
(314) 727-9111
(314) 727-9110 Facsimile
E-mail: albertswatkins@kwklaw.net

COUNSEL FOR DEFENDANT

CERTIFICATE OF SERVICE

Signature above is also certification that on April 5, 2021 a true and correct copy of the
foregoing was electronically filed with the Clerk of the Court utilizing the CM/ECF system which
will send notification of such filing to all parties of record.

4

Case 6:21-cr-03016-BCW Document 20 Filed 04/05/21 Page 4 of 13
EXHIBIT A

Case 6:21-cr-03016-BCW Document 20 Filed 04/05/21 Page 5 of 13
U. S. Department of Justice

Timothy A. Garrison
United States Attorney
Western District of Missouri

Office of the United States Attorney (417) 831-4406
The Hammons Tower Fax (417) 831-0078
901 St. Louis Street, Suite 500

Springfield, Missouri 65806-2512

February 24, 2021

Albert S. Watkins

Kodner Watkins, LC

7733 Forsyth Blvd., Suite 600
St. Louis, MO 63105

Re: Agreement for Non-Dissemination of Discovery for All Current and Future Cases

Dear Mr. Watkins:

Discovery in all criminal cases is furnished to you based on your agreement that you wil! not copy
or disseminate the material in any fashion. You, others on your staff, and your client are free to review and
otherwise work with the discovery in your office, but copies of the discovery cannot be given to your client
to take out of your office, nor is the discovery or any part of it to be copied or disseminated in any manner,
to include any paper or electronic reproduction. Furthermore, upon the conclusion of a case, you are
required to return to us all the discovery production you received from our office.

If we learn that this agreement has been violated during the pendency of a case, we will withhold
additional discovery until disclosure is mandated by statute. Further, if a determination is made that the
unauthorized dissemination was intentional, then this office may consider withholding discovery until
mandated by statute in all future cases in which you appear as counsel of record,

The United States Attorney’s Office has experienced serious problems in the past when copies of
discovery materials were provided to defendants in criminal cases. Consequently, we appreciate your
complete cooperation with this policy.

Please sign a copy of this letter and return it to the undersigned as soon as possible. Once the signed
letter is returned, discovery materials will be produced in any current case and in future cases.

Sincerely,
/s/ Shannon Kempf

Shannon Kempf
Assistant United States Attorney

I/We agree to the conditions of production stated above for all current and future cases in which
I/We represent a defendant in a criminal prosecution in the Western District of Missouri.

Dated Albert S. Watkins
Kodner Watkins, LC

Case 6:21-cr-03016-BCW Document 20 Filed 04/05/21 Page 6 of 13
EXHIBIT B

Case 6:21-cr-03016-BCW Document 20 Filed 04/05/21 Page 7 of 13
From: Kempf, Shannon (USAMOW) [mailto:Shannon.Kempf@usdoj.gov]
Sent: Monday, March 29, 2021 4:43 PM

To: Albert Watkins <al@kwklaw.net>

Cc: Eggert, Randy (USAMOW) <Randy.Eggert@usdoj.gov>

Subject: RE: USA v. Derges [6:21-cr-03016-BCW][21-145 AG MF]

Mr. Watkins, in response | will reiterate once again:

1. The method of discovery articulated in our letter is standard throughout the Western District of
Missouri, and we do not intend to make an exception in this case.
2. The discovery policy articulated in the letter exceeds the Government's discovery obligations

under Rule 16. If you do not want to sign the letter, we will give you Rule 16 discovery as required, but
you will have to come into our office to view it.

3. If you have issues with this approach, please set a discovery conference with the Court under
Local Rule 37.01 in order to discuss.
4. if you would like, you may also contact our district’s Criminal Chief, Jeff Valenti, about this

policy. He can be reached in Kansas City at 816-426-3122.
Regards,

Shannon Kempf
Assistant United States Attorney
Western District of Missouri

From: Albert Watkins <al@kwklaw.net>

Sent: Monday, March 29, 2021 11:19 AM

To: Kempf, Shannon (USAMOW) <SKempf@usa.doj.gov>
Subject: Re: USA v. Derges [6:21-cr-03016-BCW][21-145 AG MF]

This ignores the most important component of my objection to the protocol you are unilaterally
mandating. My duty to my client cannot be discharged under the protocol you are requiring.

You also ignored my questions regarding the basis for this draconian protocol.

Please promptly fully respond.
Sent from my iPhone

Albert S. Watkins LC

Kodner Watkins, LC

7733 Forsyth Blvd., Suite 600
St. Louis, Missouri 63105
314-727-91111
314-727-9110 Facsimile
albertswatkins@kwklaw.net
www.kwklaw.net

Case 6:21-cr-03016-BCW Document 20 Filed 04/05/21 Page 8 of 13
**PRIVACY NOTICE**

Thistransmission including its attachments, is from the law firm of Kodner Watkins, LC. This electronic
communication contains information that is confidential and is protected by the attorney-client or
attorney work product privileges. If you receive this transmission and/or its attachments and you are
not the intended recipient, promptly delete this message and please notify the sender of the delivery

error by return e-mail or please call the sender at 314-727-9111. You are specifically instructed that you

may not forward, print, copy or distribute or use the information in this message if you are not the
intended designated recipient.

**SECURITY NOTICE**

The Missouri Bar and The Missouri Supreme Court Rules require all Missouri attorneys to notify all E-
Mail recipients that (1) E-Mail communication is not a secure method of communication; (2) any E-Mail
that is sent to you or by you may be copied and held by any or all computers through which it passes as
it is transmitted; and, (3) persons not participating in our communication may intercept our

communications by improperly accessing either of our computers or another computer unconnected to

either of us through which the E-Mail is passed. 1 am communicating with you by E-Mail at your request
and with your consent. In the event you do not wish this form of communication in the future, upon
your notification of same, no further E-Mail communication will be forthcoming.

On Mar 29, 2021, at 11:10 AM, Kempf, Shannon (USAMOW) <Shannon.Kempf@usdoj.gov> wrote:

Dear Mr. Watkins:

Thank you for your e-mail of this morning. As you have not signed the Discovery Non-Dissemination
Letter, discovery in this matter is available to you, as it has been since February, in the manner
described in my previous e-mails on this subject.

Sincerely,

Shannon Kempf
Assistant United States Attorney
Western District of Missouri

From: Albert Watkins <al@kwklaw.net>

Sent: Monday, March 29, 2021 8:07 AM

To: Kempf, Shannon (USAMOW) <SKempf@usa.doj.gov>

Cc: Robert Seipp <rseipp@kwklaw.net>; Tony Bretz <tbretz@kwklaw.net>; Aimee Gronborg
<agronborg@kwklaw.net>

Subject: FW: USA v. Derges [6:21-cr-03016-BCW][21-145 AG MF]

Dear Mr. Kempf:
Please consider this my good faith effort to resolve issues relative to the Government’s unilateral

attempt to impose a draconian discovery non-dissemination letter as a condition precedent to the
release of discovery in this matter.

Case 6:21-cr-03016-BCW Document 20 Filed 04/05/21 Page 9 of 13
As you know, | have been attempting to resolve this issue with you since my entry in February, 2021.
Our prior email exchange is embedded below.

Additionally, we discussed this issue prior to and during Court proceedings last Friday. At that time |
shared with you my primary concern, namely my ability to copy and provide my client with the discovery
to permit meaningful preparation of her defense herein given geographic, temporal and pandemic
induced factors of significance. Given the Superseding Indictment, | wish to go on record with this
follow-up good faith attempt to reconcile this important discovery issue. .

Over the weekend | raised in a separate letter and reiterate herein my concern with the Government's
characterization of this case, its discovery, and even its charging documents as classified or otherwise
warranting the restrictions imposed by the discovery non-dissemination letter...this despite the
publication by the Government of the “Secret” Indictment and unsealing of the “Secret” Superseding
Indictment. | have not heard back from you in this regard.

Given the speedy trial issues at play, please promptly advise me of the Government’s position in this
regard. Awaiting the favor of a timely response, | remain

Very truly yours,

Albert S. Watkins, LC

Watkins LLC, dba

Kodner Watkins

7733 Forsyth Blvd., Suite 600

St. Louis, MO 63105

Phone: 314-727-9111

Email: albertswatkins@kwklaw.net

*PRIVACY NOTICE™

This electronic transmission/communiqué/message including its attachments, is from the law firm of
Kodner Watkins, LC. This electronic communication contains information that is confidential and is
protected by the attorney-client or attorney work product privileges. If you receive this transmission and/or
its attachments and you are not the intended recipient, promptly delete this message and please notify
the sender of the delivery error by return e-mail or please call the sender at 314-727-9111. You are
specifically instructed that you may not forward, print, copy or distribute or use the information in this
message if you are not the intended designated recipient.

**SECURITY NOTICE™

The Missouri Bar and The Missouri Supreme Court Rules require all Missouri attorneys to notify all E-Mail
recipients that (1) E-Mail communication is not a secure method of communication; (2) any E-Mail that is
sent to you or by you may be copied and held by any or all computers through which it passes as it is
transmitted; and, (3) persons not participating in our communication may intercept our communications by
improperly accessing either of our computers or another computer unconnected to either of us through
which the E-Mail is passed. | am communicating with you by E-Mail at your request and with your
consent. In the event you do not wish this form of communication in the future, upon your notification of
same, no further E-Mail communication will be forthcoming.

Case 6:21-cr-03016-BCW Document 20 Filed 04/05/21 Page 10 of 13
From: Kempf, Shannon (USAMOW) [mailto:Shannon.Kempf@usdoj.gov]
Sent: Thursday, February 25, 2021 12:09 PM

To: Albert Watkins <al@kwklaw.net>

Subject: RE: USA v. Derges [6:21-cr-03016-BCW][21-145 BB MF]

Mr. Watkins,

Attached, please find our standard Agreement for Non-Dissemination of Discovery
(“Agreement”). Please review, sign, and return it to me at your earliest convenience. Upon receipt of
the signed Agreement, | will provide you discovery in the United States v. Patricia Ashton Derges, 21-
03016-01-CR-S-BCW (“U.S. v Derges”) in electronic format. In the alternative, discovery in this matter is
available to you for inspection, copying, or photographing, pursuant to Federal Rule of Criminal
Procedure 16, at the US Attorney’s Office-Western District of Missouri, Springfield, Missouri. tf you
choose the latter option, you must reach out to me in advance so that we can make appropriate
arrangements.

With regard to your representation in this matter, thank you for making me aware that you
represent Ozark Valley Medical Clinic, LLC, in addition to Patricia Derges. As you know, Patricia Derges is
the only person or entity indicted in U.S. v. Derges. Given that, it would be beneficial if you could
provide me with a list of the persons and entities that you have been retained to represent in relation to
the matter, U.S. v. Derges, so that we may determine if that representation is appropriate under the
circumstance, and if there will be potential conflict issues throughout the pendency of the case.

Sincerely,

Shannon Kempf
Assistant United States Attorney
Western District of Missouri

From: Albert Watkins <al@kwklaw.net>

Sent: Wednesday, February 24, 2021 7:45 AM

To: Kempf, Shannon (USAMOW) <SKempf@usa.doj.gov>; Cameron, Shawnette (USAMOW)
<SCameron@usa.doj.gov>

Subject: USA v. Derges [6:21-cr-03016-BCW][21-145 BB MF]

Dear Ms. Kempf and Ms. Cameron:

By way of introduction, | am counsel of record for Dr. Derges in connection with the above matter. My
entry of appearance was reflected as a matter of record on February 17, 2021.

i am wholly unaccustomed to being compelled to issue a letter of this nature to anyone associated in
virtually any fashion with the Department of Justice. | have always looked upon the Department of
Justice as the model of professionalism which serves to set a high bar for others to emulate. My opinion
in this regard has never faltered. My opinion is based on decades of professional interaction with the
Department of Justice around the country. | have worked across the courtroom with DOJ personnel as
counsel for criminally accused since the mid-1980s. | have worked collaboratively with the DOJ in

Case 6:21-cr-03016-BCW Document 20 Filed 04/05/21 Page 11 of 13
significant part during this period. The professionalism and ethical standards employed by the DOJ
personne! with whom | have interacted have been punctiliously employed.

With that as a backdrop, | wish to respectfully communicate and address concerns relative to the above
matter.

As you are aware, my client operates clinics under the limited liability company Ozark Valley Clinics, LLC
(“OVC”). OVC is a one member limited liability company owned by my client. | represent OVC.

| have been advised that two individuals (one male and one female), one of whom identified himself as a
special agent with the Federal Bureau of Investigation (“FBI”), appeared at my client’s Springfield clinic
yesterday morning. | have been advised the same two individuals appeared at OVC’s Ozark clinic
yesterday afternoon.

| am advised that the Special Agents involved did not inquire of the OVC employees if they were
represented prior to commencing inquiry. | received no notice of the contact by federal law
enforcement authorities with my client’s company’s employees. As such, the special agents involved do
not appear to have been ina position to garner the affirmative representation of the individuals with
whom the special agents spoke that they were not represented by counsel prior to propounding
inquiries of any nature.

The foregoing is of particular concern given what appears to be investigative undertakings being
pursued and conducted post-indictment. This is atypical, especially when it involves employees ofa
represented party.

The foregoing is also of particular concern given the similarly atypical tenor and substance of a prior
press conference conducted under the auspices of the Department of Justice in connection with this
case. |am awaiting a transcript of the press conference for further review.

In light of the foregoing:

1. Please confirm for me whether you were aware of yesterday’s visits by the FBI Special
Agents of my client’s business and questioning of my client’s employees prior to their
appearances at my client’s places of business.

2. Please confirm for me the names of the Special Agents involved.

3. Please promptly provide me with the 302s prepared to memorialize the undertakings of the
FBI Special Agents post-indictment at my client’s places of business yesterday.

Also, out of an abundance of caution to ensure my receipt of a comprehensive set of discovery in this
matter, kindly provide me with a complete set of the discovery package understood to have been
produced by the Government to my predecessor counsel.

While { undertake to garner clarity about the totality of circumstances noted above, | request you
promptly disclose to me and coordinate any further investigative undertakings involving appearances at

my client’s places of business or interviewing or contacting any of my client’s employees through me.

The favor of a prompt reply is appreciated.

Case 6:21-cr-03016-BCW Document 20 Filed 04/05/21 Page 12 of 13
Thank you.

Very truly yours,

Albert S. Watkins, LC

Kodner Watkins, LC

7733 Forsyth Blvd., Suite 600

St. Louis, MO 63105

Phone: 314-727-9111

Email: albertswatkins@kwklaw.net

*PRIVACY NOTICE™*

This electronic transmission/communiqué/message including its attachments, is from the law firm of
Kodner Watkins, LC. This electronic communication contains information that is confidential and is
protected by the attorney-client or attorney work product privileges. If you receive this transmission and/or
its attachments and you are not the intended recipient, promptly delete this message and please notify
the sender of the delivery error by return e-mail or please call the sender at 314-727-9111. You are
specifically instructed that you may not forward, print, copy or distribute or use the information in this
message if you are not the intended designated recipient.

The Missouri Bar and The Missouri Supreme Court Rules require all Missouri attorneys to notify all E-Mail
recipients that (1) E-Mail communication is not a secure method of communication; (2) any E-Mail that is
sent to you or by you may be copied and held by any or all computers through which it passes as it is
transmitted; and, (3) persons not participating in our communication may intercept our communications by
improperly accessing either of our computers or another computer unconnected to either of us through
which the E-Mail is passed. | am communicating with you by E-Mail at your request and with your
consent. In the event you do not wish this form of communication in the future, upon your notification of
same, no further E-Mail communication will be forthcoming.

Case 6:21-cr-03016-BCW Document 20 Filed 04/05/21 Page 13 of 13


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