Rush to Judgment?

This is a partial transcript from "On the Record," Oct. 7, 2004, that has been edited for clarity.

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(BEGIN VIDEO CLIP)

RUSH LIMBAUGH, RADIO TALK SHOW HOST: We will continue to fight this, as we have fought it all the way. The issue here goes beyond me, actually. It goes to the privacy of everyone's medical records. If this became a precedent, then no one's medical records would be private, if any law enforcement agency suspected, just wanted to go — in fact, didn't even suspect, had the desire to go fishing to find some evidence for a crime. So we're going to fight this as far as we can.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, HOST: Tonight, Rush Limbaugh (search) is vowing to fight a Florida appeals court ruling. The court OK'd the seizure of Limbaugh's medical records during an investigation into his alleged drug use. Limbaugh has not been charged with a crime. Joining us from Miami is Rush Limbaugh's attorney, Roy Black.

Nice to see you, Roy.

ROY BLACK, RUSH LIMBAUGH'S ATTORNEY: Good evening, Greta.

VAN SUSTEREN: All right, Roy, what happened? Your client hasn't been charged with anything, and they simply went in and pulled his medical records?

BLACK: Well, what happened is the state attorney obtained search warrants and went into various doctors' offices while they were in operation and went in and seized records. And then we moved to have that quashed, saying that under Florida law, you can't use a search warrant to seize one's private medical records.

VAN SUSTEREN: And so what happened? I mean, you ended up in the courtroom because you lost that in the trial court. You've now gone up to the court appeals. And what did the court of appeals say?

BLACK: Well, it's a very interesting question, Greta, because it's a mixed opinion. We won part of it, in that the court said we have to go back in front of the judge who issued the search warrant to go through all the records because they seized far more records than they were entitled to under the search warrant.

But we lost the most important part, which is the principle involved. What we're saying is that under Florida law, there's a right of privacy in medical records, and you have to give the patient notice so the patient can object before you seize the records. And the reason for that is pretty clear from this case because the court says in its opinion that they seized too many records. And now we have to sort it out, which ones they can use and which ones they can't. But under Florida law, that's supposed to be done before they go to the doctor's office.

VAN SUSTEREN: Is this case been sort of limited in its significance to those who have medical records in Florida? I mean it's not going to affect me in the District of Columbia or somebody sitting out in Wisconsin tonight?

BLACK: Well, this court, obviously, only has jurisdiction over part of Florida. But nevertheless, it's an important precedent because we are in this area now, and you know — you know this as well as anyone, Greta, where the law is just emerging. We now have a federal statute, the HPPA statute on medical records. We have Florida statutes. Many states have passed statutes like this. So it's an important opinion because it may be influential in other states, as well.

VAN SUSTEREN: You know, I assume that the original search warrant was signed by a judge, was it, the original authorization?

BLACK: Yes, it was. But there was very little evidence presented to that judge. And not just that, but the judge allowed the wholesale seizure of all the medical records. So I mean, it's a very disturbing kind of matter. Remember, the judge is only hearing from the police or the prosecutor. Since notice wasn't given to the patient, they don't hear from the patient as to which sections of these records are so private they should not be seized by the police.

VAN SUSTEREN: All right. You're going to go up to the high court in Florida? Are you going to ask for the full intermediary appellate court to reconsider this?

BLACK: Well, we're going move for a rehearing of the panel, rehearing en banc, which is the entire court. We're going to ask them to certify the question as one of great public interest to the Florida Supreme Court. If we lose all three of those, then we file a petition for certiorari with the Florida Supreme Court. We're certainly not going to let this lay the way it is. We're going to vigorously appeal this.

VAN SUSTEREN: All right, I happened to notice a press release, Roy, that in addition to vigorously representing your client, Rush Limbaugh, that you got a new TV job. What's this?

BLACK: Well, that's true, on NBC. I'm involved in a program with David Kelley, which is a legal reality show, which, hopefully, will be hitting the air soon.

VAN SUSTEREN: All right. Well, we'll, of course, all be watching for that. But before I also let you go, Roy, I got to tell you that I got the little leak of information from that from your wife, a good friend of mine. And I understand that she was kind enough to share you with us tonight, on the 10th anniversary of your wedding.

BLACK: Well, that's true. And the reason I'm here, as you know, that you and my wife are best friends and I didn't dare not show up tonight.

VAN SUSTEREN: All right. Well, thank you very much. Good luck on your case in court. And we'll be following it. Thanks, Roy.

BLACK: Thank you, Greta.

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