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Carr v. Lake Cumberland Regional Hospital, LLC

United States District Court, E.D. Kentucky, Southern Division, London

November 15, 2017

GEOFFREY CARR, as Guardian of the Estate of Joseph Carr PLAINTIFF


          David L. Sunning, United States District Judge


         In this medical-negligence action brought by Plaintiff Geoffrey Carr, as the Guardian of Joseph Carr, against the doctor-Doctor John Husted-who performed Joseph's bariatric surgery, and the hospital where the bariatric surgery was performed- Lake Cumberland Regional Hospital (“Hospital”), several discovery disputes require the Court's attention. Specifically, the Hospital has filed Objections to the Magistrate Judge's Orders (Docs. # 188 and 217), which found that certain documents were not protected from discovery disclosure under the attorney-client privilege or the work-product doctrine.


         On April 24, 2009, Doctor Husted performed bariatric surgery on Joseph Carr at the Commonwealth Bariatric Center in Pulaski County, Kentucky. (Doc. # 1-3 at ¶¶ 9, 34). The Hospital operates the Commonwealth Bariatric Center. Id. at ¶ 9.

         After the surgery, Plaintiff allegedly began suffered from complications as a result of the surgery, including the aspiration of food into his lungs. Id. at ¶¶ 65-67. On or about March 19, 2015, Plaintiff underwent revision surgery, at which point Plaintiff allegedly learned that Doctor Husted had “performed a surgery that appeared incomplete and had left [Plaintiff] with permanent revisions of his anatomy not recognizable as any approved bariatric surgery.” Id. at ¶ 68. Accordingly, Plaintiff alleges that without his consent, Doctor Husted performed an “unrecognized, unaccepted, and experimental procedure” on him. Id. at ¶¶ 34-35. Plaintiff alleges that Doctor Husted did not have the privileges to perform the surgery as it was performed. Id. at ¶ 38. Plaintiff further claims that, before his surgery, the Hospital was or should have been on notice of numerous concerns over the results of surgeries that Doctor Husted had performed. Id. at ¶ 40. As a result, Plaintiff filed the instant action on July 9, 2015, in the Pulaski County Circuit Court. Id. at p. 5. Plaintiff's complaint asserts eleven causes of action against Doctor Husted and the Hospital. Id. at p. 17-27.

         During the course of discovery, the Hospital filed objections to Plaintiff's request for certain documents. Magistrate Judge Ingram reviewed those objections and issued two Orders (Docs. # 188 and 217). In the September 15, 2017 Order (Doc. # 188), Magistrate Judge Ingram determined that the bulk of the contested documents were protected by the attorney-client privilege, the work-product doctrine, or both. (Doc. # 188). Four of the documents, however, did not fall under either protection, or contained only small protected passages that could be redacted. Id. at 4-7. In the October 16, 2017 Order (Doc. # 217), Magistrate Judge Ingram denied the Hospital's Motion for a Protective Order on two additional documents (Doc. # 217). Pursuant to Federal Rule of Civil Procedure 72, the Hospital filed Objections, arguing that Magistrate Judge Ingram's determinations were “clearly erroneous.” (Docs. # 197 and 232).

         III. ANALYSIS

         A. The Attorney-Client Privilege

         A federal court sitting in diversity jurisdiction applies state law to the question of attorney-client privilege and federal law to the question of work-product. In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir. 2006). “[T]he burden of establishing the existence of [a] privilege rests with the party asserting the privilege.” In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 454 (6th Cir. 1983). “While the purpose of the attorney-client privilege is to encourage clients to communicate freely with the attorneys, the privilege is narrowly construed because it reduces the amount of information discoverable during the courts of the lawsuit.” United States v. Collis, 128 F.3d 313, 320 (6th Cir. 1997); see also Frankfort Reg'l. Med. Ctr. v. Shepherd, No. 2015-SC-438, 2016 WL 3376030, at *12 (Ky. Jun. 16, 2016) (“[P]rivileges of all stripes are to be strictly construed.”)

         In Kentucky, the attorney-client privilege “allows a client ‘to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client.'” Collins v. Braden, 384 S.W.3d 154, 161 (Ky. 2012) (quoting Ky. R. Evid. 503(b)). “Client” refers to both natural and fictitious persons, such as corporations and associations. Ky. R. Evid. 503(a)(1); see also Moss v. Unum Life Ins. Co., No. 5:09-CV-209, 2011 WL 321738, at *5 (W.D. Ky. Jan. 28, 2011) (citing Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 348 (1985)) (“Corporations act through their agents, and the attorney-client privilege applies to communications between counsel and top management.”).

         The attorney-client privilege is limited to communications to the attorney, and does not protect the underlying facts in the communication from other means of discovery. Collins, 384 S.W.3d at 159. “[W]hether a particular communication is privileged depends (absent waiver) not on what use was ultimately made of the communication, but on the facts and circumstances under which the communication was made.” Lexington Pub. Library v. Clark, 90 S.W.3d 53, 60 (Ky. 2002).

         B. The Work-Product Doctrine

         The work-product doctrine protects the “interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible [memorializations]” of an attorney “prepared for formed by counsel in the course of his legal duties.” Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). It is “not a privilege but a qualified immunity protecting from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.” In re Perrigo Co., 128 F.3d 430, 437 (6th Cir. 1997) (citing Fed.R.Civ.P. 26(b)(3)). The purpose of this doctrine is to permit an attorney to “assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference ... to promote justice and to protect [his] clients' interests.” Hickman at 510. It is a duty “'distinct from and broader than the attorney-client privilege.” In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 294 (6th Cir. 2002) (quoting In re Antitrust Grand Jury, 805 F.2d 155, 163 (6th Cir. 1986). “Although the rule affords special protections for work-product that reveals an attorney's mental impressions and opinions, other work-product materials nonetheless may be ordered produced upon an adverse party's demonstration of substantial need or inability to obtain the equivalent without undue hardship.” In re Perrigo Co., 128 F.3d at 437.

         There are three requirements for shielding documents from discovery under the work-product doctrine. “Rule 26(b)(3) protects (1) ‘documents and tangible things'; (2) ‘prepared in anticipation of litigation or for trial'; (3) ‘by or for another party or its representative.'” In re Professionals Direct Ins. Co.,578 F.3d 432, 438 (6th Cir. 2009) (internal citations omitted). “Prepared in anticipation of litigation” is determined by asking two questions: “(1) whether that document was prepared “because of” a party's subjective anticipation of litigation, as contrasted with ordinary business purpose; and (2) whether that subjective anticipation was objectively reasonable.” Id. at 439 (quoting United States v. Roxworthy,457 F.3d 590, 594 (6th Cir. 2006)). Similar to the attorney-client privilege, “[a] party asserting the work product privilege bears the burden of establishing that the documents he or she seeks to protect were prepared in anticipation of litigation.” Roxworthy, 457 F.3d at 593 (internal quotations omitted). When a document prepared in ...

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