Government Employees Insurance Company et al v. Clarke et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GOVERNMENT 	EMPLOYEES 	INSURANCE
COMPANY, GEICO INDEMNITY COMPANY,
GEICO GENERAL INSURANCE COMPANY,
and GEICO CASUALTY COMPANY,
:
:
:
:
: REPORT AND
RECOMMENDATION
23-CV-4605 (FB)(PK)
Plaintiffs, 	:
:
- against - 	:
:
COLIN CLARKE, M.D., and COLIN CLARKE
M.D. P.C.,
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:
Defendants. 	:
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Peggy Kuo, United States Magistrate Judge:
Government 	Employees 	Insurance 	Company, 	GEICO 	Indemnity 	Company, 	GEICO
General Insurance Company, and GEICO Casualty Company (collectively “Plaintiffs” or “GEICO”)
have filed an action against Colin Clarke, M.D. and Colin Clarke, M.D., P.C. (collectively,
“Defendants”) alleging insurance fraud. (See Compl., Dkt. 1.) Non-party Lucy Carol Colter moves to
intervene as a matter of right under Federal Rule of Civil Procedure 24 (the “Motion,” Dkt. 170).
BACKGROUND
On June 21, 2023, Plaintiffs filed a complaint alleging that Defendants participated in an
unlawful scheme to provide “medically unnecessary” healthcare services (Compl., Dkt. 1 ¶ 1) and to
“fraudulently” bill Plaintiffs for millions of dollars of insurance charges (id. ¶ 3). Plaintiffs allege that
Defendants frequently billed “separate charges for ‘prolonged services’ purportedly performed on a
single date—including instances in which [Dr.] Clarke falsely purported to perform an impossible
amount of ‘prolonged services’ on just one day.” (Id. ¶ 171.) As a result, Plaintiffs contend that “[i]t
is extremely unlikely—to the point of impossibility—that the Defendants only submitted their
fraudulent ‘prolonged services’ billing to [Plaintiffs] and to no other automobile insurers.” (Id. ¶ 176.)
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On June 26, 2025, the parties filed a joint discovery dispute letter in which Plaintiffs requested
that the Court compel the Defendants to produce billing and patient records for certain dates. (See
Joint Discovery Dispute Letter, Dkt. 145 at 1–2.) On July 8, 2025, the undersigned granted Plaintiffs’
request, finding that “the billing records Plaintiffs seek in the joint letter—narrative reports and other
related documents, and non-GEICO billing records for specific dates—are relevant to Plaintiffs’
claims.” (July 8, 2025 Discovery Order (“Discovery Order”).) Defendants appealed the Discovery
Order (Appeal, Dkt. 151), and the Honorable Frederic Block denied it (Mem. & Order, Dkt. 167).
On September 17, 2025, Plaintiffs filed a motion to compel the Defendants to comply with
the Discovery Order and to engage a “mutually acceptable litigation support vendor to extract his
patient billing and treatment records to facilitate identification and production of documents” that are
subject to the Discovery Order. (Motion to Compel, Dkt. 161 at 1.) The Court denied the Motion
to Compel without prejudice to renew because of the parties’ failure to communicate regarding
production of the billing records at issue before filing the motion. (See Sep. 19, 2025 Order.)
On September 28, 2025, Ms. Colter, who is one of Defendants’ patients, filed the Motion,
seeking to intervene to prevent the disclosure of her medical records. Plaintiffs filed an opposition
(Opp., Dkt. 171), and the Defendants filed a letter in support (Defs. Mem., Dkt. 174).
The Honorable Frederic Block referred the Motion to me for a report and recommendation.
(Sep. 30, 2025 Order.)
DISCUSSION
I. 	Legal Standard for Motions to Intervene
A. Intervention as of Right
Rule 24 provides that “the court must permit anyone to intervene who (1) is given an
unconditional right to intervene by federal statute; or (2) claims an interest relating to the property or
transaction that is the subject of the action, and is so situated that disposing of the action may as a
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practical matter impair or impede the movant’s ability to protect its interest, unless existing parties
adequately represent that interest.” Fed. R. Civ. P. 24(a). Thus, in order to intervene as of right under
Rule 24(a)(2), a proposed intervenor “must (1) timely file an application, (2) show an interest in the
action, (3) demonstrate that the interest may be impaired by the disposition of the action, and (4) show
that the interest is not protected adequately by the parties to the action.” Catanzano by Catanzano v.
Wing, 103 F.3d 223, 232 (2d Cir. 1996) (citing N.Y. News, Inc. v. Kheel, 972 F.2d 482, 485 (2d Cir. 1992)).
“Failure to satisfy any one of these requirements is a sufficient ground to deny the application.” 	Id.
(citing Farmland Dairies v. Comm’r, 847 F.2d 1038, 1043 (2d Cir. 1988)). An applicant must establish
not only that it “has an interest relating to the subject of the action but also that it is so situated that
without intervention the disposition of the action may, as a practical matter, impair or impede [the
applicant’s] ability to protect its interest.” Mastercard Intern., Inc. v. Visa Intern. Serv. Ass’n, Inc., 471 F.3d
377, 390 (2d Cir. 2006) (internal citations omitted). 	“In seeking intervention under this Rule, the
proposed intervenor bears the burden of demonstrating that it meets the requirements for
intervention.” Kamdem-Ouaffo v. Pepsico, Inc., 314 F.R.D. 130, 134 (S.D.N.Y. 2016).
B. Permissive Intervention
Rule 24 permits permissive intervention for a party who “is given a conditional right to
intervene by a federal statute,” or “has a claim or defense that shares with the main action a common
question of law or fact.” Fed. R. Civ. P. 24(b)(1). In considering permissive intervention, “the court
must consider whether the intervention will unduly delay or prejudice the adjudication of the original
parties’ rights.” Fed. R. Civ. P. 24(b)(3).
While the district court generally has broad discretion in considering motions to intervene, its
discretion is particularly broad when deciding a motion for permissive intervention. See H.L. Hayden
Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 797 F.2d 85, 89 (2d Cir. 1986) (affirming denial of request for
permissive intervention because proposed intervenor “has no direct interest in the underlying
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litigation” and has not demonstrated that intervention “will assist in the just and equitable adjudication
of any of the issues between the parties”).
II. 	Analysis
Ms. Colter argues that she has met all the conditions required under Rule 24(a) for intervention
as of right. 	She contends that she has timely filed an application showing that she has a “legally
protectable interest in the confidentiality of her medical records, recognized under federal and state
law, 	including 	HIPAA, 	New 	York’s 	physician-patient 	privilege, 	and 	constitutional 	privacy
protections.” 	(Motion at 2.) 	She argues that “[i]f the Court orders disclosure without considering
[her] position, her privacy rights will be irreparably harmed. 	Once her records are disclosed,
confidentiality cannot be restored. Intervention at this stage is necessary to prevent that impairment.”
(Id.) 	Furthermore, Ms. Colter argues that neither Plaintiffs nor Defendants are “positioned to
safeguard [her] personal privacy rights.” (Id.) 	Defendants agree with her that “no existing party
adequately represents [Ms. Colter’s] distinct personal interests.” (Defs. Mem. at 3.)
“While the burden to demonstrate inadequacy of representation is generally speaking
minimal,” the Second Circuit has “demanded a more rigorous showing of inadequacy in cases where
the putative intervenor and a named party have the same ultimate objective.” See Butler, Fitzgerald &
Potter v. Sequa Corp., 250 F.3d 171, 180 (2d Cir. 2001). 	Absent “evidence of collusion, adversity of
interest, nonfeasance, or incompetence,” there is a presumption of adequacy of representation. See id.
I find that Ms. Colter fails to meet her burden of showing that her interest is not adequately
protected by the parties in this action.
While Defendants contend that their “focus is on liability and defenses, not simply
safeguarding non-party patients’ privacy” (Defs. Mem. at 3), they share Ms. Colter’s objective of
preventing disclosure of her medical records, along with those of Defendants’ other patients. Because
there is no “evidence of collusion, adversity of interest, nonfeasance, or incompetence,” there is a
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presumption of adequacy of representation. See Butler, 250 F.3d at 180.
In addition, Defendants have represented Ms. Colter’s interest by arguing vigorously against
the disclosure of their patients’ medical records, including those of Ms. Colter, and invoking patient
privacy interests multiple times. For example, in opposing GEICO’s request to compel production
of their billing records, Defendants argued that Plaintiffs sought records that Defendants’ patients
“would likely never conceive of or consent to GEICO having possession.” (Joint Discovery Dispute
Letter, Dkt. 145 at 3.) When they appealed the Discovery Order, Defendants described the records
which they were ordered to produce as belonging to their patients “who never consented to GEICO
obtaining their personal and confidential HIP[AA] and NYS privacy law protected medical records.”
(Appeal at 7.) Defendants, thus, placed arguments related to patient privacy squarely before the Court.
While these arguments were not ultimately successful in preventing disclosure of Defendants’
patient records, they did result in steps to safeguard confidential information of individual patients.
Plaintiffs “agreed to accept production of patient records for non-GEICO patients with the patients’
names redacted down to first and last initials, and full redaction dates of birth and social security
numbers.” (See Opp. at 4.) Coupled with the confidentiality order entered by the Court to safeguard
the public disclosure of sensitive medical information (see Oct. 27, 2023 Order, Dkt. 38), Ms. Colter’s
interests in this case are adequately protected without her intervention. 	See also Application of Am.
Tobacco Co., 880 F.2d 1520, 1530–31 (2d Cir. 1989) (“[The physician-patient privilege] can be
adequately protected by a court order that prohibits disclosure of the patient’s identity.”).
Accordingly, I respectfully recommend that the Motion requesting intervention as of right be
denied.
A. Permissive Intervention
Although not requested by Ms. Colter, Defendants ask the Court to grant her permissive
intervention pursuant to Rule 24(b) if it finds no intervention of right under Rule 24(a).
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Defendants do not state a legal basis for requesting permissive intervention on behalf of non-
party Ms. Colter. Assuming arguendo that Defendants may make such a motion, I find that permissive
intervention here is also not warranted. 	There is no showing of how Ms. Colter’s proposed
intervention will contribute to the “just and equitable adjudication” of the issues in this case. See H.L.
Hayden Co. of N.Y., Inc., 797 F.2d at 89.
Accordingly, I respectfully recommend that Ms. Colter not be granted permissive intervention.
CONCLUSION
For the above reasons, I respectfully recommend that the Motion be denied and Ms. Colter
not be allowed to intervene as of right or permissively.
Any written objections to this Report and Recommendation must be filed within 14 days of
service of this report. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Failure to file objections within
the specified time waives the right to appeal any order or judgment entered based on this Report and
Recommendation. Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).
SO ORDERED:
Peggy Kuo
PEGGY KUO
United States Magistrate Judge
Dated: 	Brooklyn, New York
February 6, 2026
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