1 OBTAINING INFORMATION AND WORK PRODUCT FROM A HOSPITAL'S RISK MANAGEMENT OFFICE IN A MEDICAL NEGLIGENCE ACTION By William S. Mills Glenn, Mills and Fisher, P.A. Durham, North Carolina INTRODUCTION This paper addresses how to compel the production of information gathered by a risk management office of a hospital during discovery in a medical negligence action. By providing a step by step explanation of how to compel the production of such information I hope to show you how to create a record that will support an order compelling such discovery on appeal. The case law from a survey of all jurisdiction is also summarized. The most desired documents in the hands of the Defendant are those documents to which you encounter: "Objection, the requested documents constitute privileged work product prepared in anticipation of litigation and therefore protected from discovery". We are increasingly finding the attorney client privilege being asserted based upon actions of inhouse counsel. The risk management office typically works closely with hospital in-house counsel in the investigation of potential claims. They will typically gather information soon after the act of negligence upon which your action is based. The work-product privilege is founded upon the holding in the landmark case of Hickman v Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947) and is codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure. Most states have adopted the same provision. This rule provides a qualified immunity for all work product and an absolute protection of "mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." The work product privilege will not prevent the discovery of information upon a showing of a substantial need of the materials and that it is not available without undue hardship. Hospital counsel must satisfy three tests to have information gathered by risk management protected by the work product privilege. The material must be: (1) documents and tangible things (2) prepared in anticipation of litigation or for trial; and (3) by or for another party or by or for that party's representatives. Wright & Miller, Federal Practice and Procedure, Section 2024, p A party claiming that material sought is protected as work product is now required to specify the basis for the objection due to recent amendments to that rule. If you properly prepare for the motion to compel, you may very well succeed in obtaining documents such as: 1. Statements of witnesses prepared by the witness at the request of the defendant hospital's office of risk management. 2. Incident Reports prepared pursuant to a hospital's written or unwritten policy or procedure. 3. Reports prepared by agents of Defendant reflecting facts discovered during an on site investigation or witness interviews.
2 I. HOW TO GET THE ISSUE BEFORE THE COURT Before you file your motion to compel the discovery, exhaust your efforts to get as many facts as possible about the document or the witness statement you are seeking. The two primary methods of doing so are through the use of interrogatories and depositions. First, as to the importance of interrogatories in laying your ground work, see Willis v. Duke Power, 291 N.C. 19, 229 S.E.2d 191 (1976). In Willis the North Carolina Supreme Court discusses the proper interplay between interrogatories and requests for documents. You want to be prepared to describe, to the extent possible, for the court what the document is that you are seeking. In Willis the N.C. Supreme Court held that the trial judge erred in ordering the production of documents because the documents had not yet been properly identified. Rule 34 requires that as a prerequisite of production, documents must be (1) "designated", (2) "within the scope" of Rule 26(b), and (3) in the "possession, custody, or control" of a party from whom they are sought. The party seeking production must show that these prerequisites are satisfied. A proper function of interrogatories is to obtain the information necessary to make such a showing. (emphasis added) Plaintiff's interrogatories properly, therefore, asked the defendant to "identify" certain documents. Id., 229 S.E.2d at 199. First serve the interrogatories designed to discover the documents. Then you must insist that the Defendant sufficiently identify them. A responding party may not assert the privilege and refuse to identify the subject statements or documents. You may have to first move for an order requiring the Defendant to properly identify the documents claimed to be privileged. You will then be in a better position to compel their production. Another method of obtaining the same sort of information is to always cover the topic during depositions of fact witnesses with questions and follow up as indicated: Q: Have you been interviewed or given a statement about the death of my client's husband? Q: When? Q: Did you know why you were interviewed? Q: Who directed that you give a statement? Q: Was it reduced to writing? Q: When? Q: By whom? Q: Do you have possession of that document? Q: Do you know who does? Q: Did you review it in preparation for this deposition? 1 1 If you get a "yes" to this question, then you should be able to compel production on the additional grounds of Rule 612 (b) of the Rules of Evidence. Samaritan Health Services, Inc. v. Superior Court, 142 Ariz 435, 690 P.2d 154
3 Mills - 3 Q: Do you know who else has seen the statement? Q: What is the subject of the statement? Q: Do you know others with knowledge of this event that have given statements? Q: Was your recollection of factual details clearer at that point in time than it is now? If counsel instructs the witness not to answer you should succeed in obtaining an order directing that such questions be answered because you are seeking information necessary to the court's ultimate conclusion of law as to whether or not the matters are privileged. You then specifically request the production of such a statement or document and use the answers in the deposition to support your motion to compel. During the course of a deposition of a witness that has given an earlier statement in a work-product context, be sure to ask questions testing their ability to recall and have them agree that their recall was better immediately after the incident. This is usually not hard to do. Quite often in a medical case the witnesses will state that they can't recall much of anything that is not reflected in the medical chart. This information will be essential in meeting your required showing of need if the work product privilege applies. Having gone through the necessary steps by deposition, interrogatories and Request for Documents in order to determine the specifics of the document, you are ready to file your motion to compel and argue the law. II. ARE INCIDENT REPORTS PREPARED BY AGENTS OF A DEFENDANT HOSPITAL PROTECTED FROM DISCOVERY CONFIDENTIAL WORK PRODUCT OR ATTORNEY CLIENT PRIVILEGE? (1984) held that any privilege which may have existed is waived if the witness is shown the statement before the deposition to refresh recollection.
4 Mills - 4 Hospitals will typically have written procedures mandating the preparation of "Incident Reports". Defendants always assert that the Incident Reports are documents prepared in anticipation of litigation and are therefore protected from discovery. You should obtain these regulations. Often the court's ruling depends upon the purpose for which the document was generated. For instance, in Enke v. Anderson, 733 S.W.2d 462 (Mo. App. 1987), the Missouri Court of Appeals ruled that plaintiff was not entitled to the incident report because the hospital directed its employees to prepare the report for the purpose of transmitting notice of the incident to the hospital's insurance carrier. Whereas in St. Louis Little Rock Hospital v. Gaertner, 682 S.W.2d 146 (Mo. App. 1984), the same court ordered the production of an incident report because it was prepared for the purpose of preventing future loss and therefore not privileged. 2 A. THE HOSPITAL AS THE OBJECTING PARTY HAS THE BURDEN OF PROOF TO ESTABLISH THE PRIVILEGE As a threshold issue, you need to show the court that the requested information is within the scope of discovery. "Incident Reports" are documents which fall within the scope of discovery because they are documents prepared by persons with knowledge of the events giving rise to this action. Therefore, the defendant can avoid production only by meeting its burden of establishing privilege. The party resisting the discovery bears the burden of proving the elements of the work product immunity exception of Rule 26(b)(3). Hickman v. Taylor, 329 U.S. 495, 67 S.CT. 385, 91 L.Ed. 451 (1947); Mlynarski v. Rush Presbyterian St. Luke's Medical Center, 213 Ill.App.3d 427, 572 N.E.2d 1025, 157 Ill.Dec. 561 (1991). 2 Missouri seems to have created a privilege which is not widely recognized in that they protect information provided by the insured to the insurer as a variant of the attorney client privilege. As cited hereinafter, other jurisdictions have required the disclosure of information developed by the insurance adjuster. A federal decision arising out of North Carolina specifically held that statements by the insured to the insurance adjuster were not protected by the attorney client privilege.phillips v. Dallas Carriers, 133 F.R.D. 475 (M.D.N.C. 1990)
5 Mills - 5 B. THE DEFENDANT'S LABEL OF "CONFIDENTIAL WORK PRODUCT" OR "ATTORNEY- CLIENT PRIVILEGE" IS IMMATERIAL. The Defendant's conclusory assertion that a document is privileged because it was prepared in anticipation of litigation has no bearing on the ultimate ruling by the Court. "[S]uch a speculation as to possible litigation is not enough to cloak those reports with the protection given an attorney's work product." Binks Manufacturing Company v. National Presto Industries, Inc., 709 F.2d 1109 (7th Cir. 1983). North Carolina cases have also held that the objecting party's conclusions as to whether the document was prepared in anticipation of litigation is not relevant. The party claiming privilege must come forward with evidence upon which the court must then make its conclusion on the issue of privilege. Industrotech v. Duke, 67 N.C. App 741, 314 S.E. 2d 272, at 275 (1984); Midgett v. Crystal Dawn Corp. 58 N.C. App 734, 294 S.E. 2d 386 (1982). The trial judge before whom you appear must analyze whether the Incident Report or other document was in fact prepared as a result of specific anticipated litigation or whether the Incident Report is prepared in the ordinary course of business, or some other non-privileged reason. This point is critical because the Defendant's procedures and the forms themselves are clearly intended to cloak the documents with the work product or attorney client privilege. In Samaritan Foundation v. Goodfarb, 176 Ariz. 497, 862 P.2d 870, 26 A.L.R.5th 893 (1993), the Arizona Supreme Court ruled that even though hospital's risk management office obtained employees' signatures on documents reciting that hospital counsel would be representing the employee in connection with any action filed, the subsequent statements were not protected by the attorney client privilege. C. SUMMARY OF DECISIONAL LAW FROM VARIOUS JURISDICTIONS A number of decisions have addressed the issue of whether information developed by risk management is discoverable in a medical negligence action. The cases of Sims v. Knollwood Park Hospital, 511 So. 2d. 154 (Ala. S.CT., 1987) and Kay Labs v. District Court, 653 P.2d 721 (Colorado S.CT., 1982) both held that hospital incident reports prepared by hospital employees pursuant to instructions from attorneys did not constitute work product and were therefore subject to discovery. Both holdings are supported by sound reasoning and can be used effectively to help persuade the trial judge to order the production of the incident reports. In Sims, the plaintiff sought production of all written reports concerning the injuries suffered by the plaintiff. The defendant objected to the production of its incident report on the grounds of work product. The trial court in Sims denied the plaintiff's discovery of the incident report. The report was prepared by defendant hospital's employee pursuant to instructions from the hospital's risk management and legal departments. The document was prepared on a form bearing the words "Confidential - For Attorney's Use Only". The hospital's justification, which was rejected by the Alabama Supreme Court in Sims, is very similar to the justification typically provided by hospitals in support of their objection to production. The defendant hospital stressed that the incident report was, as noted above, for the attorney's use only, and that it is prepared "when an incident occurs at the hospital which might result in some legal action and it is submitted to the risk manager for review and then turned over to the legal department". The Alabama Supreme Court ruled that the reports were not privileged. The issue in Sims was whether the Incident Report was in fact "prepared in anticipation of litigation"? That question is always one which must be answered by the Court based upon
6 Mills - 6 the facts presented during an evidentiary hearing. Try to resist the Defendant's use of affidavits and force the presentation of witnesses; unless you are confident that the offered affidavits do not satisfy the objecting party's burden. The evidence should more typically be presented from depositions or by the presentation of witnesses at the hearing regarding the circumstances of the preparation of the document. The case of Kay Laboratories v. District Court of Pueblo County, 53 P.2d 721 (1982) is also instructive. In that case, the Supreme Court of Colorado held that a hospital incident report prepared by an employee of the hospital within eight hours after the incident occurred, was not protected from discovery on the grounds of work product. In Kay Labs, the incident report was prepared on a pre-printed incident report form provided by the defendant hospital's insurance adjuster. The Kay Labs' court stressed that the report was obviously prepared in the normal course of business regardless of whether the incident would realistically lead to litigation. 3 Many courts have considered the question of whether pre-litigation reports prepared by the defendant pursuant to a routine practice constitute privileged work product and have decided that issue in favor of discovery and against a finding of privilege. Even if litigation is clearly a prospect, there is no work product immunity for a document prepared in the regular course of business. See 8 C. Wright & A. Miller; Federal Practice and Procedure 2024, at (1970). Other cases which have ordered the production of information generated by the hospital's risk management offices include: Uhr v. Lutheran General Hosp., 226 Ill.App.3d 236, 589 N.E.2d 723, 168 Ill.Dec. 323 (1992). Risk management personnel's notes summarizing interviews with 10 people involved in the care of the plaintiff's decedent while at the hospital discoverable since the notes were simply summaries of witness statements and not the mental impressions of risk management. Ekstrom v. Temple, 197 Ill.App. 3d 120, 142 Ill. Dec. 910, 553 N.E.2d 424 (1990). Documents related to an investigation of the subject surgery and the sterility of the surgical environment made by hospital authorities were not privileged. Sakosko v. Memorial Hosp., 167 Ill.App.3d 842, 522 N.E.2d 273, 118 Ill.Dec. 818 (1988). Letters from risk management consultant to risk manager were not privileged since the letters discussed factual issues pertinent to the plaintiff's medical condition and prognosis and were not addressed to counsel nor did they reflect mental impressions. Other documents at issue in Sakosko were found to be privileged because they were prepared pursuant to the Medical Studies Act which specifically mandated confidentiality and non disclosure during discovery. In Mlynarski v. Rush Presbyterian-St. Luke's Medical Center, 213 Ill.App.3d 427, 572 N.E.2d 1025, 157 Ill.Dec. 561 (1991), the court held that a memorandum prepared by the risk management coordinator was protected by both the work product privilege and attorney client privilege. However, it is noteworthy for plaintiffs because the court stressed that it felt 3 Compare this with the result of Enke v. Anderson, Supra., where the production was denied because the information was specifically generated for the benefit of notifying the insurance company. Enke and Kay Labs represent clear conflict in the way some jurisdictions have resolved this issue.
7 Mills - 7 compelled to rule as it did because the defendant's affidavit was unchallenged by plaintiff. The opinion makes it clear that a different result may have been reached had more factual development occurred. In ruling that the privilege would be sustained, the court also stressed that in the event that an attempt was made to use information from the document to impeach a witness, the document would have to be provided to opposing counsel. Support for the production of information developed by risk management investigations is also found in cases outside of the context of medical negligence cases. In Airocar, Inc. v. Goldman, 474 So.2d 269 (Fla. App. 4 Dist. 1985) the court held that reports prepared by the defendant bus company's drivers pursuant to company procedures in connection with any "incident" was not protected by the work product privilege. Incident reports are usually prepared by someone with personal knowledge of the event. Therefore, statements reflected in those Incident Reports are nothing more than statements of witnesses entered at a time in close proximity to the incident. A written statement of a witness, whether prepared by him and later delivered to an attorney, or drafted by an attorney and then adopted by the witness, is not properly considered to be the "work product" of an attorney. Scourtes v. Albrecht Grocery Company, 15 F.R.D. 55 (N.D. Ohio 1953). 4 Most hospital procedures will address what is to be done with the completed incident report. Although some incident reports are about incidents which ultimately lead to litigation, many are not. This fact bolsters the argument that the preparation of incident reports is a routine buisness practice and not prepared in anticipation of litigation. The mere possibility that litigation may arise, or the mere fact that litigation does in fact occur, does not protect materials prepared by an attorney with the protection of a work product privilege. Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1977), cited in Binks, Supra., 702 F.2d Therefore it should certainly not protect materials prepared by witnesses. Where statements made, or reports filed, are such as would be made by corporate employees in the usual and regular course of normal business procedure, despite the fact that the corporation is on notice that a claim is likely, and despite the fact that the statement or the document was made at the direction of the corporation's counsel, the statement or report is not protected by the work product privilege. Virginia Electric & Power Company v. Sun Shipbuilding & D. D. Company, 68 F.R.D. 397 (D.C.Va.1975) In Consolidation Coal Co. v. Bucyrus-Erie Co., 432 N.E.2d 250, the court ordered production of a report prepared by an engineer on the grounds that "...the report is actually a notebook that contains objective and material information consisting of mathematical computations, formulae, tables, drawings, photographs, industry specification data, and handwritten notes. It does not reflect or disclose the theories, mental impressions or litigation plans of B-E's attorneys. Nor is it the product of the attorney's mental processes. Sailors never communicated with the legal department prior to preparing this material, nor was he advised by his superior, who had requested Sailor's help, as to what the theories or plans of the attorneys were relative to this litigation. He was simply asked to analyze pieces of the machinery and render an opinion as to what had occurred." 4 In the Scourtes case the court nevertheless denied the plaintiff's motion to produce the documents but solely on the grounds that the plaintiff had failed to show "good cause". The Scourtes decision was rendered at a time that good cause was required as a pre-condition to obtaining an order to produce documents. Good cause is of course no longer required.
8 Mills - 8 In Miles v. Bell Helicopter Co., 385 F. Supp. 1029, 1033 (N.D. Ga. 1974), the court held that accident reports prepared immediately after a helicopter crash "merely on the contingency that litigation might well arise from the helicopter crash" were not work product within the meaning of Rule 26(b)(3) and granted plaintiff's motion to compel production of documents. Courts have held that witness statements obtained by the defendant's insurance company claims agents are subject to discovery by plaintiffs. In Southern Railway Company v. Lanham, 403 F.2d 119, 33 A.L.R.3d 427 (5th Cir. 1968) reh den 408 F.2d 348 (1969) the U.S. Court of Appeals for the Fifth Circuit ordered the production of statements taken from the train crew a few days after the train accident giving rise to the litigation. In a lengthy and well reasoned opinion, the Lanham court stressed that the plaintiffs would be substantially disadvantaged at trial if they did not have access to the witness statements taken near the time of the events giving rise to the lawsuit. Witness statements obtained shortly after the incident are certainly more likely to be accurate than the information which could now be obtained by way of deposition. The Lanham court did not compel the production of the investigative reports which contained the mental impressions and valuations of the claim agents. If redaction is necessary in order to protect the mental impressions of in-house counsel, that can be accomplished by the Court after an in camera review of the subject statements. Statements obtained from the witnesses by employees of Defendant in the ordinary course of the business are discoverable: If in connection with an accident or an event, a business entity in the ordinary course of business conducts an investigation for its own purposes, the resulting investigative report is producible in civil pre-trial discovery. As stated in Soeder v. General Dynamics Corporation, 90 F.R.D. 253 (D.Nev. 1980) the distinction between whether defendant's "in-house" report was prepared in the ordinary course of business or was "work product" in anticipation of litigation is an important one. The fact that a defendant anticipates the contingency of litigation resulting from an accident or event does not automatically qualify an "in-house" report as work product. Janicker v. George Washington University, 94 F.R.D. 648 (U.S.D.C., District of Columbia, 1982). The Janicker court held that objective facts must establish an "identifiable resolve to litigate" before the investigative efforts begin in order for the work product doctrine to apply. In applying that analysis the Janicker court ordered the production of the defendant's in-house investigative report. The court went on to hold that the investigative file accomplished by the insurance company and the attorney representing the defendant after suit was filed were not discoverable. III. INCIDENT REPORTS AND WITNESS STATEMENTS MAY STILL BE DISCOVERED EVEN IF THEY ARE DETERMINED TO BE PRIVILEGED WORK PRODUCT. Courts will order the production of documents covered by the work product privilege upon a showing that the plaintiff has a substantial need for the material and is unable without due hardship to obtain the substantial equivalent to the materials by other means. See generally, The Attorney-Client Privilege and the Work-Product Doctrine, 2nd Edition, American Bar Association, Pages
9 Mills - 9 Do not approach the hearing just on the issue of privilege. Be prepared to argue grounds for obtaining the documents even if privileged. The importance of that victory will become apparent on appeal because if the trial judge rules that the plaintiff is entitled even if the privilege applies, the appeal of the privilege issue becomes much less important. Ask the judge to make rulings regarding whether or not you have made the necessary showing for overcoming the privilege, assuming the higher court disagrees on the issue of the privilege. Generally the only means available to plaintiffs for obtaining the type of information recorded in incident reports or witness statements is to take the witnesses' depositions. These depositions will be a few years after the event, depending on when your client came to you and how quickly you filed. Obviously a witnesses' ability to recall specific factual details has diminished over time and cases have held that this factor alone should justify the production of the witness statements. McDougall v. Dunn, 468 F.2d 468, 474 (4th Circuit 1972); Southern Railway Company v. Lanham, supra. In Lanham the court ordered the notes of interviews with the train crew produced, in part, because the depositions of the witnesses, taken well after the accident had occurred, would be less reliable than their immediate impression of the facts contained in the prior statements. The courts have been unequivocal in ordering the production of witness statements where witnesses do not recollect events or time has elapsed since the incident occurred. In United States v. Murphy Cook and Company, 52 F.R.D. 363 (E.D. Pa, 1971), the court stated succinctly: There is no doubt that production of a statement should be ordered if a witness has a faulty memory and can no longer relate details of the event.... The mere lapse of time is in itself enough to justify production of material otherwise protected as work product... The notion that memory fades with the passage of time needs no demonstration. IV. ADDITIONAL CONSIDERATION OF THE ATTORNEY CLIENT PRIVILEGE IN THE CONTEXT OF RISK MANAGEMENT INVESTIGATIONS If the court finds the existence of the attorney client privilege, as opposed to the work product privilege, the information is absolutely protected and showing need will not overcome the privilege. You will often face a defendant's assertion that risk management's interview of witnesses at the direction of counsel is absolutely protected by Upjohn Company v. United States, 449 U.S. 383, 66 L. Ed.2d 584, 101 S.C. 677 (1981). However, the Upjohn decision is strictly limited to the facts of that case, a point which is emphasized in the opinion. In Upjohn the court stressed that the corporate superiors had specifically directed that the in-house counsel conduct an investigation as to certain payments to foreign governments in order to ascertain whether any illegal conduct had occurred. Based on that directive, the in-house counsel of Upjohn, with the assistance of privately retained counsel, prepared questionnaires that were then disseminated to targeted individuals with specific instructions that the attorneys were investigating the payments and that the investigation was "highly confidential". Id. 449 U.S. at 387. Generally you will find that inhouse counsel and the office of risk management initiated the investigations, not corporate superiors. In Upjohn, there was a very specific notice of a legal claim and the information sought was to enable Upjohn's counsel to render legal advice. Typically the incident reports and interviews are conducted by a risk manager as a matter of routine business policy. In your
10 Mills - 10 cases you should try to establish a motivation for the gathering of the information which is not related to enabling counsel to render legal advice. Often you can find such a purpose in the hospital's risk management regulations or a statute. To be privileged, among other things, the primary purpose of the attorney-client communication must be the seeking or giving of legal advice or service. N. C. Electric Membership Corp. v. Carolina Power and Light Co., 110 F.R.D. 511, 513 (M.D.N.C. 1986). The privilege applies only to communications "on the faith of", "and in consequence of" the attorney-client relation. Hughes v. Boone, 102 N.C. 117, 141 (1889). The attorney client privilege will be strictly construed. Fisher v. U.S., 425 U.S. 391 (1976) (the privilege applies only to disclosures, necessary to obtain legal advice, which might not have been made absent the privilege). Courts have held that "in order for the privilege to apply, the attorney receiving the communication must be acting as an attorney and not simply as a business advisor. (citations omitted). In fact, for the privilege to apply, the client's confidential communication 'must be for the primary purpose of soliciting legal, rather than business, advice.'" Henson v. Wyeth Laboratories, Inc., 118 F.R.D. 584, 587 (W.D. Va. 1987). In addition to the hospital's own policy and procedure's manual, look to the state's statutes as a potential source of a reason for conducting the interviews or investigation. For instance, North Carolina General Statutes 131E-96 requires: (a) Each hospital shall develop and maintain a risk management program which is designed to identify, analyze, evaluate, and manage risks of injury to patients, visitors, employees, and property through loss reduction and prevention techniques and quality assurance activities, as prescribed in rules promulgated by the Commission. If the hospital is accredited, then it is subject to the requirement imposed by the Joint Commission on Accreditation of Hospitals (JCAH, now known as the Joint Commission on the Accreditation of Healthcare Organizations), that the hospital maintain procedures for investigations necessary to assure and improve Quality Assurance and patient care. (see, for example, pp of the Accreditation Manual for Hospitals, 1985, JCAH). If you look, you will probably find other reasons why the hospitals conduct such interviews and obtains such statements in the ordinary course of business, and not simply for the purpose of rendering legal advice. Samaritan Foundation v. Goodfarb, 176 Ariz. 497, 862 P.2d 870, 26 A.L.R.5th 893 (1993) is a very noteworthy decision regarding the treatment of attorney client privilege in the contest of a corporate hospital defendant. The court in Goodfarb discusses the policy behind the attorney client privilege and the Upjohn decision at length. You should read this case if attorney client privilege is asserted by a hospital in connection with statements obtained by risk management. The Arizona Supreme Court addressed the issue of when the attorney client privilege was available to a corporate hospital in a medical negligence case. That Court held that the interviews conducted by a paralegal at the direction of corporate counsel of witnesses in the operating room at the time of the negligence were not protected by the attorney client privilege and affirmed the order directing the production of those statements. The Supreme Court rejected the Arizona Court of Appeal's creation of a "qualified attorney client privilege" which could be overcome by a showing of need. Instead, the Court ruled that if the employee witness was being interviewed about conduct of the employee for which the corporation may be vicariously liable, then the statements were absolutely privileged as attorney-client communications. However, if the employee was simply a witness to the actions of others, the privilege does not apply.
11 Mills - 11 V. CONCLUSION Start preparing for the inevitable hearing on the work product materials early. Seek the information you will need to resist the claim of privileges in your depositions, interrogatories and request for documents. Force the Defendants to provide sufficient information about the document so that you can determine if it is in fact work product. Don't simply take their assertion that it is. Have the subject documents present by agreement or by subpoena at the hearing so that the judge can make an in camera review. Resist the stipulation of facts and force the Defendants to meet their burden with evidence. A number of factors seem to be of concern to a court when faced with the issue of privilege. It is apparent that findings of fact by the trial court are very critical in your effort to obtain an Order that will be affirmed on appeal. The trial judge should be more inclined to grant the request when some of the following circumstances apply: 1. The report or statement is made by a person with actual knowledge of the event. 2. The report or statement was made at or near the time of the event in litigation. 3. It was prepared as part of a normal routine or pursuant to some other statutory duty. (as long as the statute that imposes the duty does not also protect it from discovery) 4. The documents serve purposes other than simply helping to prepare for litigation. For example, is it mandated as part of an accredited hospital's duty to require investigations as part of its quality control program? 5. It will be difficult to obtain the information at this point in time from some other source. 6. Defendant had no notice of a claim at the time the document was prepared. 7. The documents do not contain the mental impressions of its author and simply cover factual events. 8. The statement if from a witness to the event who is not the agent of the hospital whose actions may cause negligence to be imputed to the hospital. 9. Hospital counsel did not direct and control the investigation. H:\BILL\ACADEMY\Privilege Documents\WORKPROD.MAN
Case :-cv-00-lrh-vpc Document 0 Filed 0/0/ Page of UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 0 GINA NELSON, Plaintiff, vs. NAV-RENO-GS, LLC, et al., Defendants. :-CV-0-LRH (VPC ORDER 0 This discovery
NOTICE Decision filed 02/09/11. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same. NO. 5-09-0460 IN THE APPELLATE COURT
Can You Keep A Secret? How the Attorney- Client and Self-Evaluative Privileges Can Apply to Your Compliance Practice Pamela J. Grimm firstname.lastname@example.org Associate Counsel UPMC Health System 200 Lothrop
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION Kimlyn Cline Plaintiff, v. Advanced Medical Optics, Inc., Defendant. CIVIL ACTION NO. 2:08-CV-62 (TJW) MEMORANDUM
Published on Arkansas Judiciary (https://courts.arkansas.gov) Rule 26. General Provisions Governing Discovery. (a) Discovery Methods. Parties may obtain discovery by one or more of the following methods:
George Sacco, Esq. Purcell & Ingrao GSaccolaw@aol.com September 2, 2011 Expert Witness Disclosure and Privilege (Federal & New York) FEDERAL Federal Rules of Civil Procedure (FRCP) Rule 26(A)(2) governs
Case 2:11-cv-01174-TS-PMW Document 257 Filed 02/03/15 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION SALT LAKE CITY CORPORATION, a Utah municipal corporation;
Case 5:11-cv-00360-OLG-JES-XR Document 1130 Filed 07/09/14 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, ET AL, Plaintiffs, v. RICK
Page 1 of 7 809.66 MEDICAL NEGLIGENCE - HEALTH CARE PROVIDER'S LIABILITY FOR ACTS OF NON-EMPLOYEE AGENTS - RESPONDEAT SUPERIOR - APPARENT AGENCY. 1 NOTE WELL: This instruction previously was labeled N.C.P.I.
IN THE SUPREME COURT OF THE STATE OF ALASKA ORDER NO. 1682 Amending Civil Rules 16, 26, 33, 34, 37, and 45 concerning Discovery of Electronic Information IT IS ORDERED: 1. Civil Rule 16 is amended to read
Summary of Key Cases: Protections Under the Patient Safety and Quality Improvement Act of 2005 (PSQIA) Kathryn K. Wire JD, Project Manager Center for Patient Safety February 25, 2015 Illinois Decisions
Case 6:13-cv-01168-EFM-TJJ Document 157 Filed 06/26/15 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS CARGILL MEAT SOLUTIONS CORPORATION, v. Plaintiff, PREMIUM BEEF FEEDERS,
DISCOVERY IN BAD FAITH CASES Barbara A. O Brien A. The Tort of Bad Faith Bad faith is a separate tort from breach of contract. Anderson v. Continental Ins. Co., 85 Wis.2d 675, 686, 271 N.W.2d 368 (1978).
Friday 31st October, 2008. It is ordered that the Rules heretofore adopted and promulgated by this Court and now in effect be and they hereby are amended to become effective January 1, 2009. Amend Rules
[Cite as Joyce v. Rough, 2009-Ohio-5731.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY Rosemary S. Joyce, Individually and as Administratrix of the Estate of Edward M. Joyce Court
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION UNITED STATES OF AMERICA ex rel., ) JOHN TIMOTHY DONEGAN, ) ) Plaintiffs and Relator, ) ) v. ) No. 4:12-CV-0876-DGK
Cook v. Lowes Home Ctrs., Inc. NO. COA10-88 (Filed 18 January 2011) Workers Compensation foreign award subrogation lien in North Carolina reduced no abuse of discretion The trial court did not abuse its
Case 1:13-cv-00195-WTL-MJD Document 122 Filed 06/24/14 Page 1 of 12 PageID #: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION TALAL S. HAMDAN M.D., vs. Plaintiff, INDIANA
Rule 45. Subpoena. (a) Form; Issuance. (1) Every subpoena shall state all of the following: a. The title of the action, the name of the court in which the action is pending, the number of the civil action,
Case 1:13-cv-01018-MAD-DJS Document 76 Filed 02/10/15 Page 1 of 6 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JAMES KARAM, Plaintiff, - v - Civ. No. 1:13-CV-1018 (MAD/RFT) COUNTY OF RENSSELAER,
ABA Section of Litigation 2012 Insurance Coverage Litigation Committee CLE Seminar, March 1-3, 2012: Hey! Give Me Back That Document! Privilege Issues in Insurance Coverage Disputes SSSHHHHH THERE S AN
Case 05-00262-8-JRL Doc 142 Filed 06/04/07 Entered 06/04/07 17:00:30 Page 1 of 5 SO ORDERED. SIGNED this 04 day of June, 2007. J. Rich Leonard United States Bankruptcy Judge IN THE UNITED STATES BANKRUPTCY
Writ of Mandamus is Conditionally Granted; Opinion Filed December 3, 2013. S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01457-CV IN RE SOUTHPAK CONTAINER CORPORATION AND CLEVELAND
DISCOVERY: Using the Civil and Criminal Rules of Discovery in DSS Cases Maitri Mike Klinkosum Assistant Capital Defender Office of the Capital Defender-Forsyth Regional Office Winston-Salem, North Carolina
NOTICE Decision filed 10/15/15. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same. 2015 IL App (5th 140227-U NO. 5-14-0227
SIGNED this 31st day of August, 2010. CRAIG A. GARGOTTA UNITED STATES BANKRUPTCY JUDGE IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION IN RE: ' CASE NO. 09-12799-CAG
Case: 1:10-cv-00363-WHB Doc #: 31 Filed: 09/02/10 1 of 14. PageID #: 172 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION JAMES MEYER, v. Plaintiff, DEBT RECOVERY SOLUTIONS
Filed 5/16/13; pub. order 6/12/13 (see end of opn.) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado) ---- STEVE SCHAEFER, Plaintiff and Respondent, C068229 (Super.
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE: NEW YORK CITY ASBESTOS LITIGATION This Document Refers To: WALTER SKY x Index No.: 105281/2000 RECOMMENDATION OF THE SPECIAL MASTER FACTUAL
Wes Bearden, Attorney Texas Certified Investigator; TALI General Counsel Dallas, Texas Region 1 Meeting; April 2014 Are your communications confidential? Disclosure v. Privilege Disclosure DPS PSB Rules
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-13-00125-CV CHRISTOPHER EDOMWANDE APPELLANT V. JULIO GAZA & SANDRA F. GAZA APPELLEES ---------- FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY
Electronic Discovery and the New Amendments to the Federal Rules of Civil Procedure: A Guide For In-House Counsel and Attorneys By Ronald S. Allen, Esq. As technology has evolved, the federal courts have
This article originally appeared in The Colorado Lawyer, Vol. 25, No. 26, June 1996. by Jeffrey R. Pilkington TORT AND INSURANCE LAW REPORTER Informal Discovery Interviews Between Defense Attorneys and
House Engrossed State of Arizona House of Representatives Fifty-first Legislature First Regular Session HOUSE BILL AN ACT AMENDING TITLE, CHAPTER, ARIZONA REVISED STATUTES, BY ADDING ARTICLE ; RELATING
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION East Bridge Lofts Property Owners ) Civil Action No. 2: 14-cv-2567-RMG Association, Inc.; Creekstone Builders,
In the Missouri Court of Appeals Western District STEVE AUSTIN, Appellant, v. JOHN SCHIRO, M.D., Respondent. WD78085 OPINION FILED: May 26, 2015 Appeal from the Circuit Court of Clinton County, Missouri
PUBLISHED IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ABINGDON DIVISION ROBERT ADAIR, on behalf of himself and all others similarly situated, Plaintiffs, v. Case No. 1:10-cv-00037
Nebraska Ethics Advisory Opinion for Lawyers No. 91-3 I. AS COUNSEL FOR A PLAINTIFF, AN ATTORNEY MAY NOT ETHICALLY INTERVIEW PRESENT OR FORMER EMPLOYEES OF A DEFENDANT CORPORATION IF: (a) THE EMPLOYEES
Case 0:07-cv-60771-JIC Document 30 Entered on FLSD Docket 08/07/07 09:36:18 Page 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MRI SCAN CENTER, INC., on itself and all others similarly situated,
SUBCHAPTER IX. PRETRIAL PROCEDURE. Article 48. Discovery in the Superior Court. 15A-901. Application of Article. This Article applies to cases within the original jurisdiction of the superior court. (1973,
UTAH Rick L. Rose Kristine M. Larsen RAY QUINNEY & NEBEKER P.C. 36 South State Street, Suite 1400 P.O. Box 43585 Salt Lake City, Utah 84111 Telephone: (801) 532-1500 Facsimile: (801) 532-7543 email@example.com
ISBA Advisory Opinion on Professional Conduct ISBA Advisory Opinions on Professional Conduct are prepared as an educational service to members of the ISBA. While the Opinions express the ISBA interpretation
PART III Discovery CHAPTER 8 Overview of the Discovery Process Generally, discovery is conducted freely by the parties without court intervention. Disclosure can be obtained through depositions, interrogatories,
Case 2:07-cv-02175-JPM-dkv Document 85 Filed 01/08/2008 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION SPINE SOLUTIONS, INC., a Delaware Corporation,
IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE FILED JERRY HAMMOCK and wife RUBY HAMMOCK, et al., December 5, 1997 Cecil W. Crowson Appellate Court Clerk Plaintiffs/Appellants, Sumner
Case 3:12-cv-08123-HRH Document 521 Filed 10/27/14 Page 1 of 7 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) vs. ) ) TOWN OF COLORADO CITY,
Case 7:12-cv-00148-HL Document 43 Filed 11/07/13 Page 1 of 11 CHRISTY LYNN WATFORD, IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA VALDOSTA DIVISION v. Plaintiff, Civil Action No.
THE STATE OF NEW HAMPSHIRE ROCKINGHAM COUNTY SUPERIOR COURT Docket No.: 08-C-794 Caroline McMullen v. Donald L. Lamoureux ORDER In this motor vehicle personal injury case, the plaintiff, Caroline McMullen
The Journey from Legal Technician to Trusted Advisor: Pick up Your Road Map Here Thursday, April 25, 2013 2013 NATIONAL EMPLOYMENT LAW CONFERENCE APRIL 25 Panel Presentation The Journey from Legal Technician
THE PREROGATIVES OF PRIVILEGES: THE ETHICS OF PROTECTING OUR PLANNING CLIENTS (EVEN FROM THEMSELVES!) 50 TH Annual Heckerling Institute on Estate Planning Orlando, Florida January 12, 2015 STEPHANIE LOOMIS-PRICE
Case: 12-16291 Date Filed: 06/17/2013 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 12-16291 Non-Argument Calendar D.C. Docket No. 0:12-cv-61429-RSR MICHAEL
LOCAL RULES FOR FOURTH CIRCUIT COURT DISTRICT OF MISSISSIPPI [Renumbered and codified by order of the Supreme Court effective May 18, 2006; amended effective April 23, 2009.] RULE 1. ASSIGNMENT OF CASES
AMENDED IN ASSEMBLY APRIL 14, 2015 california legislature 2015 16 regular session ASSEMBLY BILL No. 597 Introduced by Assembly Member Cooley February 24, 2015 An act to amend Sections 36 and 877 of, and
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. IN THE ARIZONA COURT OF APPEALS DIVISION
RULE 10 FUNDS HELD BY THE CLERK 10.1 General. A Judge of the District Court may order that any monies in actions pending before the Court be invested in any local financial institution for safe keeping.
Senate Bill No. 292 Senator Roberson CHAPTER... AN ACT relating to civil actions; providing immunity from civil actions for a board of trustees of a school district or the governing body of a charter school
Illinois Supreme Court Requires Plaintiff to Apportion Settlements Among Successive Tortfeasors By: Joseph B. Carini III & Catherine H. Reiter Cole, Grasso, Fencl & Skinner, Ltd. Illinois Courts have long
Goodridge v. Hewlett Packard Company Doc. 13 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION CHARLES GOODRIDGE, Plaintiff, v. CIVIL ACTION H-07-4162 HEWLETT-PACKARD
2015 IL App (1st) 141985-U No. 1-14-1985 NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral
DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO 1437 Bannock Street Denver, CO 80202 IN THE MATTER OF THE APPLICATION OF COLORADO INDEPENDENT ETHICS COMMISSION AND COLORADO ETHICS WATCH Plaintiff v.
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. SUPERIOR COURT In re Asbestos Litigation JAMES SHERMAN, et al. : : v. : C.A. No. 01-0696 : A C & S, INC., et al. : DECISION ON PLAINTIFF
2013 IL App (1st) 120898-U FOURTH DIVISION March 28, 2013 No. 1-12-0898 NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances
STATE OF MICHIGAN COURT OF APPEALS MARJORIE KOSTER, Personal Representative of FOR PUBLICATION the Estate of DOUGLAS W. KOSTER, Deceased, December 26, 2000 and CLYDE MUNSELL, Personal Representative 9:40
ABA Section of Litigation 2012 Section Annual Conference April 18 20, 2012: Deposition Practice in Complex Cases: The Good, The Bad, and The Ugly The to the Expert Discovery Provisions of Rule 26 of the
PAGE 1 OF 8 809.03 (Use for claims arising before 1 October 2011. For claims arising on or after 1 October 2011, use N.C.P.I. Civil 809.03A.) NOTE WELL: Res Ipsa Loquitur has been approved as an option
california legislature 2015 16 regular session ASSEMBLY BILL No. 597 Introduced by Assembly Member Cooley February 24, 2015 An act to amend Sections 36 and 877 of, and to add Chapter 6 (commencing with
Case 3:07-cv-01180-TEM Document 56 Filed 04/27/2009 Page 1 of 12 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION JAMES E. TOMLINSON and DARLENE TOMLINSON, his wife, v. Plaintiffs,
Case 710-cv-00006-HL Document 40 Filed 09/20/10 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA VALDOSTA DIVISION BEATRIZ NAVARRO, surviving spouse and natural heir to
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY JACOB MEYERS, by his natural ) mother and next friend JANNA ) LYNN MEYERS, and individually, ) ) Plaintiffs, ) ) C.A. No. N11C-07-009
NEBRASKA ETHICS ADVISORY OPINION FOR LAWYERS NO 12-09 Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client s interests, including surrendering
IN THE SUPREME COURT OF THE STATE OF ARIZONA KRISTINA R. DOBSON, Petitioner, v. THE HONORABLE CRANE MCCLENNEN, JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA, Respondent
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE GIAN BIOLOGICS, LLC, Plaintiff, v. Civil Action No. 10-865-LPS BIOMET INC. and BIOMET BIOLOGICS, LLC, Defendants. MEMORANDUM ORDER At Wilmington
Case 1:09-cv-21435-MGC Document 208 Entered on FLSD Docket 06/01/2011 Page 1 of 6 E. JENNIFER NEWMAN, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 09-21435-Civ-COOKE/TURNOFF vs. Plaintiff
In the Missouri Court of Appeals Eastern District DIVISION TWO FRANCIS GRAHAM, ) No. ED97421 ) Respondent, ) Appeal from the Circuit Court ) of St. Louis County vs. ) ) Honorable Steven H. Goldman STATE
DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO Court Address: 1437 Bannock Street Denver, CO 80202 Plaintiff: JOHN GLEASON, in his official capacity as Supreme Court Attorney Regulation Counsel vs.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA RONALD DUTTON, : : Consolidated Under Plaintiff, : MDL DOCKET NO. 875 : v. : CIVIL ACTION NO. : 09-62916 TODD SHIPYARDS CORP.,