Judge reviewing if leaked Bergosh texts are fair game in lawsuit against Escambia County

Following the release of tens of thousands of text messages purported to be from Escambia County Commissioner Jeff Bergosh's personal phone, a U.S. magistrate judge is weighing whether attorneys suing the county on behalf of a former employee should be allowed to review them.

The county's former medical director, Dr. Rayme Edler, is in a legal battle with the county over allegations that the county provided ambulance services without properly certified personnel as required by Medicare and “up-coded” service claims to more expensive ones than were actually provided. Edler, who says her position was eliminated while she was on protected leave in 2021, also claims she was a victim of retaliation.

In the course of the litigation, Edler's attorneys received a spreadsheet of more than 52,000 text messages that had allegedly been downloaded from Bergosh's phone. The attorneys alerted the county and the court they were in possession of the texts, but said they had not looked at them to avoid accessing privileged information.

Our review of the texts: Leaked Bergosh text messages mention EMS doctor who is suing Escambia County 102 times

Previously: Escambia's fighting for control of 60,000 texts a commissioner claims were 'stolen' by a rival

Attorneys for the county quickly sought a protective order directing Edler and her counsel to "destroy any and all copies of the improper, unauthorized, and potentially illegally acquired text messages."

"We don't know where this spreadsheet came from, who accessed it or whether it's been altered," Stephanie Pidermann, an attorney representing the county, told U.S. Magistrate Judge Hope Cannon in a hearing on the matter Monday morning.

Another former county employee, Jonathan Owens, said the texts had been anonymously left in his county office on a thumb drive. He told the News Journal that after being interviewed by Edler's attorneys, he gave them the files because he thought they would be helpful.

The county has contended the texts were obtained illegally, and Pidermann said that the FBI is investigating the circumstances of their dissemination, although the FBI has not confirmed that.

Pidermann told the judge that obtaining a legitimate record of the texts would have been as simple as requesting them from Bergosh, who has the "only true and authentic version," and that they could have been provided to Edler's team once private matters like family communications, medical data and banking information were redacted out.

She questioned why those leaked, unredacted texts should be used if there is an "alternative, better source."

Rebekah Bailey, one of Edler's attorneys, said the leaked texts were already in the public sphere. She said the court, the media, Owens and likely others already had the texts, and as Edler's counsel their interest was to read them and determine if they might be relevant to matters such as discovery and depositions.

"We're officers of court," Bailey said. "We're not going to go out and share them with anyone ... to me the damage has already been done."

The News Journal recieved a copy of the spreadsheets from an anonymous source, and Owens verified they were the same documents that had been provided to him via thumbdrive. Using keyword searches related to public business, the News Journal reviewed the texts and reported that Bergosh referenced Edler more than 100 times in texts that seemingly should have been released as a matter of public record under Florida Sunshine Law, but were not.

In a response to the county's motion for a protective order, Edler's attorneys wrote the county has "long maintained that responsive text messages relating to public business do not exist on County employees’ personal cell phones."

Some of the texts seem to indicate that Bergosh had discussed ousting Edler in July, several weeks before she was fired in September.

Cannon raised, and Bailey affirmed, that one conceivable concern of having Bergosh release his version of the texts in lieu of the leaked ones was the potential that they, too, could be altered.

The background: Escambia County turning to University of Florida for new EMS medical director

From the archives: FDLE raids Escambia County Public Safety office as part of ongoing investigation

Bailey said with a little technical know-how it would be a relatively simple matter to use computer coding to cross check the two sets of spreadsheets against one another to tell if anything had been added or deleted. From there, it would be on them to investigate the discrepancies.

Pidermann said there had not been an attempt to compare the two sets of texts.

All parties involved said they had been unable to find legal precedent for this specific set of circumstances.

Responding to questions from Cannon, Bailey said her stance on the matter would not change even if it is ultimately determined the texts were acquired illegally. She said there is a concept of the "fruit of a poisonous tree" in criminal law, which says evidence is inadmissible in court if it was derived from evidence that was illegally obtained.

She said that concept doesn't apply in civil court, and even so, the discussion Monday was about "whether we get to read it (the texts), not whether we get to use it."

Cannon concluded the hearing by saying she would make her decision in a written order. She did not give a timeline for the final decision.

This article originally appeared on Pensacola News Journal: Jeff Bergosh texts in Rayme Edler lawsuit go before federal judge