I’m betting this is a common deposition-preparation occurrence. A litigant reviews documents in preparation for her deposition, whether unilaterally or—a key difference—at her lawyer’s request. And in doing so, she makes notes on those documents.
Does the attorney–client privilege protect those notes from discovery? One court said no, and we need to learn why. Ford-Bey v. Professional Anesthesia Servs. of N. Am., LLC, 2020 WL 830016 (Pa. Super. Ct. Feb. 20, 2020). You may read the decision here.
So, take note, folks. Pun intended. Sorry.
A deceased patient’s administrator filed a wrongful-death, medical-malpractice action against an anesthesia group and a handful of CRNAs, including Thomas Maddaloni. In preparation for his deposition, Maddaloni reviewed the medical chart, making handwritten notes on the chart during the process.
At his deposition, he said this—
Q. When you reviewed the chart in preparation for your deposition, did you have it printed out like it is in front of you?
Q. Did you write anything on your copy of the chart?
A. I believe I did.
Q. And was that to assist you in your review?
Q. Okay. And where is your copy of the chart?
A. It’s at my home.
Third Time Not a Charm
The plaintiff, of course, asked for Maddaloni’s self-annotated medical chart, both informally and formally. Maddaloni’s counsel objected on privilege and work-product grounds. At the first motion-to-compel hearing, the trial court rejected these arguments. Maddaloni filed a motion to reconsider but did not file any sworn statements explaining why the privilege or work-product doctrine covered these notes. Motion denied.
Looking for a third bite at the apple, Maddaloni filed a motion to supplement the record with his affidavit. This affidavit likely would have made a prima facie privilege argument, shifting the burden to the plaintiff, but the Court rejected it as too little, too late.
But no matter, Maddaloni reasoned, because he believed the privilege law is this—
Notes made by a client to assist the client in preparing for his deposition were attorney-client or work-product privileged regardless of whether they were communicated to the attorney.
In other words, “a client’s notes are, ipso facto, attorney–client privileged.”
No Communication, No Privilege
The court did not think so. In Pennsylvania, as elsewhere, the privilege covers communications, which means, simply enough, that the communication occur between a client and her attorney. In short, “the privilege protects communications from both lawyers to their clients and clients to their lawyers.”
Here, Maddaloni did not prove that he communicated the medical-chart notes to his attorney or that he created those notes with the intent to do so. As the court put it, “there is no evidence that the notes were communicated, which is the very essence of the attorney–client privilege.” (emphasis by the court).
What about Work Product?
Having digested this nugget, your instinct is to shout, “Work Product!”, right? That also did not work here. The court noted that, unlike the attorney–client privilege, the Pennsylvania work-product doctrine “belongs to the attorney, not the client.” It protects the attorney’s—not the client’s—mental impressions and opinions.
Here, Maddaloni “simply offered no proof that his notes contained the mental impressions of his attorney or of his attorney’s representatives.” The court concluded with a point that we should all consider—
Mr. Maddaloni cites no authority, and we know of none, supporting his contention that the mental impressions of the client automatically are protected from disclosure under the attorney work-product doctrine.
A few lessons here.
First, we must remember the privilege’s limited scope—it does not protect a client’s facts or impressions of those facts—only communications to or from his lawyer. An in-house lawyer also learned this lesson the hard way as you can see in Court Rejects Privilege for In-House Lawyer’s Handwritten Notations.
If a lawyer wants her client to make notes, then she should ask her client to do so and instruct the client to send the notes to her for legal-advice purposes. Or, if the lawyer directs notes be taken for a specific, lawyer-driven purpose, then the work-product doctrine likely protects those notes.
Second, clients and their lawyers must actually prove that the privilege or work-product doctrine applies. It is insufficient to argue that the privilege, ipso facto, covers anything. Another in-house lawyer learned this lesson the hard way as you can see in Ipse Dixit Privilege Assertions Doom In-House adidas Lawyer’s Emails.
Third, if you intend to prove it, do it the first time. While Proctor &Gamble received a second chance to prove privilege protection, as you can read about in P&G Receives a Mulligan–Proves Privilege for Emails Between Non-Attorney Employees, the Ford-Bey court proves that is not always the case.