United States District Court, E.D. Kentucky, Southern Division, London
GEOFFREY CARR, as Guardian of the Estate of Joseph Carr PLAINTIFF
LAKE CUMBERLAND REGIONAL HOSPITAL, et al. DEFENDANTS
L. Sunning, United States District Judge
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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).
The Attorney-Client Privilege
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.”)
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.”).
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).
The Work-Product Doctrine
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.
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 ...