Each of the fifty states recognize some variation of medical peer-review privilege that protects from compelled disclosure certain defined information arising from a healthcare provider’s peer-review activities. Virmani v. Novant Health, Inc., 259 F.3d 284 (CA4 2001).  The privilege encourages medical providers to hold candid discussions following an adverse medical event which, in turn, promotes continued medical-care improvement.

The privilege most often arises in medical-malpractice actions which plaintiffs typically file in state courts.  But the privilege also surfaces in federal-court actions.  For example, parties seek peer-review information in medical-malpractice actions filed under diversity jurisdiction. They may seek peer-review information in cases premised on federal-question jurisdiction, such as claims under federal anti-discrimination statutes or for insufficient medical care under 42 U.S.C. § 1983 or the Emergency Medical Treatment and Active Labor Act (EMTALA). These discovery efforts present a complex question—whether, and how, a peer-review privilege applies when the issue presents itself in federal court.

Choice of Law Issues

Highly consequential yet often ignored, the first question in applying a peer-review privilege in federal court is whether federal or state privilege law applies.  In general, Federal Rule of Evidence 501 dictates that federal privilege law applies when the federal court entertains the civil action under federal-question jurisdiction, 28 U.S.C. § 1331, and state privilege law—as governed by the forum state’s conflict-of-privilege-law rules—applies when the court considers the case under diversity jurisdiction. 28 U.S.C. § 1332.  For a more detailed explanation of these issues, see 1-2 Privileges & Protections: TN & Sixth Circuit Law § 2.02 Conflicts of Privilege Laws in Federal Court (2024).

For current purposes, let’s focus on the peer-review privilege’s application when one files a claim against a healthcare provider in federal court based on federal-question jurisdiction and then seeks peer-review materials from that provider. Three questions arise.

Is There a Federal Common Law Peer-Review Privilege?

While a few federal district courts have applied a medical peer-review privilege under federal common law, such as Weekoty v. United States, 30 F. Supp. 2d 1343 (D.N.M 1998) and Bredice v. Doctors Hosp., 50 F.R.D. 249 (D.D.C. 1970), the majority of federal courts have refused to recognize a common-law peer review privilege, as discussed in this article and in this section of my privileges treatise.  1-11 Privileges & Protections: TN & Sixth Circuit Law § 11.05[5][a] Medical Peer-Review Privilege in Federal-Question Cases (2024)

Is There a Federal Statutory Peer-Review Privilege?

Two federal statutes provide healthcare providers with some hope of protection of peer-review materials.  First, the Health Care Quality Improvement Act of 1986 (HCQIA), 42 U.S.C. § 11101 to -11152, provides immunity to peer-review bodies and those participating in a peer-review process, but most courts refuse to find that this immunity equates to an evidentiary privilege.  See Atteberry v. Longmont United Hosp., 221 F.R.D. 644 (D. Colo. 2004).

Second, the Patient Safety and Quality Improvement Act (PSQIA) creates a reporting system for healthcare providers to report adverse medical events to a designated Patient Safety Organization (PSO) and installs an evidentiary privilege for “patient safety work product” submitted to the PSO. 42 U.S.C. § 299b–21(7).  The privilege is narrow, however, and requires detailed proof that the putatively privileged materials were evaluative and submitted to a PSO.

Do Comity Principles Ever Play a Role?

With no federal common-law privilege, no statutory privilege under the HCQIA, and a limited privilege under the PSQIA, some argue that a federal court should apply a state-law peer-review privilege under comity principles.  And while some courts agree that comity supports applying a state peer-review privilege in federal-question cases, such as Mattice v. Mem’l Hosp. of S. Bend, 203 F.R.D. 381 (N.D. Ind. 2001) and LeMasters v. Christ Hosp., 791 F. Supp. 188 (S.D. Ohio 1991), the comity concept seems contrary to federal law requiring application of federal privilege law in federal-question cases.

Putting it all Together: A Case Study

So, how do these principles apply in practice?  Judge Poplin’s opinion in Est. of McCleary v. QCHC of Tenn., PLLC, 2025 U.S. Dist. LEXIS 13275 (opinion also available here), provides a good illustration.

Joshua McCleary died in the ER of the Sweetwater Hospital Association (SWHA) after being transferred there from the Monroe County (TN) jail.  His estate filed suit in federal court asserting constitutional claims through 42 U.S.C. § 1983 against the government defendants and a claim against SWHA under EMTALA, 42 U.S.C. § 1395dd.  The Estate specifically invoked federal-question jurisdiction and did not assert any supplemental state-law claims, such as a medical-malpractice claim.

Discovery of Peer-Review Materials

The Estate sought SWHA’s peer-review materials related to McCleary’s treatment and addressed the peer-review privilege head-on with this cover email—

Undaunted, SWHA argued in response to the subsequent motion to compel that, while most federal courts disfavor applying a federal peer-review privilege, some courts distinguish between solely federal-question cases, such as claims under federal anti-discrimination statutes, and state-law medical malpractice claims.

Refusal to Recognize a Federal Common-Law Peer-Review Privilege

Judge Poplin began her privilege assessment by refusing to recognize a federal common-law peer-review privilege, noting in particular that the Supreme Court “has expressed reluctance to expand the parameters of privilege law in recent years” and that the “weight of authority in the Sixth Circuit and elsewhere is that no medical peer review privilege exists under federal common law.”

The judge recognized that some federal courts have applied state peer-review privileges when the case includes a state-law medical-malpractice claim, but refused SWHA’s invitation to treat the EMTALA claim as a state-law medical-malpractice claim for privilege purposes.

No Proof to Support a Patient Safety Work Product Claim

The PSQIA statute offered SWHA a final opportunity to secure peer-review protection, but the court rejected that as well.  The judge noted that, to secure PSQIA protection, a healthcare provider must prove (1) that the putatively privileged document was created for the purpose of reporting to a PSO and (2) was “so reported.”  SWHA lacked any evidence supporting either prong, leading the judge to easily conclude that the PSQIA offered no privilege protection.

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Federal banking regulations, such as this FDIC regulation, mandate the confidentiality and non-discoverability of suspicious-activity reports (SAR) without mentioning the word “privilege.” As you can read more about in 1-6 Privileges & Protections: TN & Sixth Circuit Law § 6.05 (2024), many courts have nevertheless ruled that these regulations create an evidentiary privilege that prohibits either a bank or a banking regulator from disclosing a SAR or information about the filing or non-filing of a SAR.

So, how do these SAR regulations play out during discovery and trial?  The court’s decisions in Camenisch v. Umpqua Bank, 2025 U.S. Dist. LEXIS 9755, provide an outline. In this case, the court reviewed several banking documents in camera and ruled that some, but not all, fell within the SAR privilege’s scope.  And just before trial, it precluded the parties, including plaintiffs’ expert, from mentioning SAR-related information while permitting them to discuss the bank’s investigative efforts.  And because these restrictions and permissions may result in the jury hearing less than the full story, the court decided to inform the jury, through a special instruction, why federal SAR regulations precluded them from hearing more.  Let’s look at the details.

Increase in SARs

While a relatively obscure evidentiary privilege, the SAR privilege may attract courts’ increased attention in the years ahead.  As reported by FinCEN, and summarized in the chart below, depository institutions more than doubled their SAR filings over the last decade, with significant increases in 2022 and 2023.

From: FinCEN

One can reasonably assume that criminal and civil litigation will erupt from activities underlying these filings and, if so, lawyers and courts will have to maneuver through the SAR privilege with more frequency than ever before.  Perhaps the Camenisch case will offer some guidance.

A Class Action and Banking-Industry Expert

Several investors in a real-estate investment fund filed a class-action lawsuit against Umpqua Bank after sustaining losses.  The investment fund’s founders, as it allegedly turned out, lost money and began a Ponzi scheme through which it used new investor money to pay prior investors.  The scheme unraveled and, with one owner dead, another in prison, and the fund in bankruptcy, the investors turned to Umpqua Bank for relief.

The plaintiffs-investors claim that the bank had knowledge of the Ponzi scheme, due in part to many “red flags” on the investment fund’s account, but failed to do anything about it.  The plaintiffs disclosed a banking-industry expert, a former state banking commissioner, to offer opinions on typical practices in the banking industry, which transactions lack business justification, and the types of customer behavior that banks should consider so-called red flags.

Umpqua denies plaintiffs’ assertions and the case is currently headed to trial as a certified class action for reasons you can read about in this court order.

Discovery of SAR Information

During discovery, plaintiffs requested information related to suspicious-activity alerts arising from the investment fund’s account and the bank withheld over 100 documents on the basis that the SAR privilege precluded production.  The court, citing an OCC regulation (12 C.F.R. § 21.11(k)), stated that “[a] SAR, and any information that would reveal the existence of a SAR, are confidential, and shall not be disclosed.” But how does one apply this privilege in practice?

Citing the First Circuit’s opinion in In re JPMorgan Chase Bank, N.A., 799 F.3d 36, 2015 U.S. App. LEXIS 14721, the court, in an opinion available here, held that “the key query” in assessing the SAR privilege’s scope is whether the document “suggest[s], directly or indirectly, that a SAR was or was not filed.” Despite the bank’s contrary arguments, this standard does not protect all documents underlying a SAR and provided this example—

Some bank prepared documents may simply aggregate relevant account or transactional information, flag potentially suspicious activity that needs to be investigated further, or explain what steps need to be taken as part of that investigation. Documents like these may reflect the bank’s due diligence, but they won’t always shed light on whether or not a SAR was filed.

And using these standards, the court reviewed the bank’s 100+ documents in camera and determined that only 12 fell within the SAR privilege

Expert Opinion Restrictions and an Explanatory Instruction

Having achieved some SAR privilege success in the discovery phase, the bank became concerned that, if plaintiffs’ banking-industry expert testified that the bank performed no investigation in response to anti-money laundering alerts, it could not use the SAR-privileged information to show how it actually investigated those alerts.  The bank therefore moved to exclude the expert’s opinion regarding the bank’s investigation efforts.

The court, in an opinion available here, again noted the SAR privilege’s narrow application, stating that the privilege “only extends to testimony that would reveal the filing or non-filing of an SAR.”  This privilege does not, according to the court, “encompass the details of an investigation leading to the decision whether to file a SAR.”

The court therefore allowed both parties to introduce testimony about the bank’s investigations but stated that it would—before any such testimony—provide the jury with an instruction that the SAR privilege prevents the bank from revealing whether it filed a SAR in connection with any investigation and that it withheld certain documents from plaintiffs due to the SAR privilege.  The parties then worked together and proposed this joint jury instruction:

In the short term, we will see how this jury deals with explanations of the SAR privilege and in the long term, we may see how other lawyers and courts handle what could be an increase in SAR privilege claims.

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It’s a conundrum, for sure.  A company receives notice of potential wrongdoing, directs its in-house counsel to investigate the issue, and then must decide how, if at all, to affirmatively use the investigation to defend its conduct.  A significant consideration in determining whether to use investigation results is waiver of privilege and work-product protections.

The court’s decision in a trade-secrets case against Nvidia illustrates the potential waiver perils when faced with this issue.  Following assertions that a recent hire brought a competitor’s trade secrets to Nvidia, the company’s in-house counsel, and others, investigated the veracity of those allegations.  The company then used an in-house lawyer’s affidavit to convince a German court of the non-existence of the competitor’s trade secrets within it system.  Let’s see how this decision affected waiver arguments in a U.S. federal court. Valeo Schalter Und Sensoren GmbH v. NVIDIA Corp., No. 23-cv-05721-EKL (VKD), 2025 U.S. Dist. LEXIS 2221 (N.D. Cal. Jan. 6, 2025) (opinion also available here).

Employee Download, Criminal Investigation, and a German Civil Proceeding

Valeo, a German-based company, created source codes and other proprietary information related to its parking-assistance technology.  One of its employees allegedly downloaded over 27,000 files and later joined Nvidia, which was also developing parking-assistance technology, and six months later, German officials began a criminal investigation.  Two other things occurred: Nvidia began an internal investigation and Valeo initiated civil proceedings against Nvidia in Germany.

As part of the civil proceedings, the German court ordered Nvidia “to perform comprehensive searches for Valeo code files.”  What was Nvidia to do?

Nvidia Investigation, Affidavits, and a Disclosure

Nvidia’s head of IT Security, with the assistance of an in-house lawyer, oversaw a detailed search for Valeo source codes across Nvidia’s computers and source code repositories.  Another in-house lawyer participated as well by interviewing numerous Nvidia employees and specifically emailing those who worked with the former Valeo employee to ascertain whether they received any of Valeo’s proprietary information.

To show that it complied with the German court’s investigation order, Nvidia filed affidavits from its in-house lawyers, available for review here and here, describing their investigation-related work and their findings that Nvidia systems were free of Valeo’s source codes.  These lawyer affidavits included verbatim quotes from their employee communications.

It worked.  The German court found Nvidia in compliance with the investigation order and declined to impose any penalties.  Valeo withdrew its civil action.

U.S. Trade Secrets Case

That détente didn’t last long as Valeo filed a trade-secrets case against Nvidia in a U.S. federal court and sought production of Nvidia’s investigation materials. Nvidia refused, claiming that the attorney–client privilege and work-product doctrine protected those materials from production.

But did Nvidia waive these protections by filing its in-house lawyers’ affidavits in the German action?

Waiver Law

Let’s quickly review waiver principles for the attorney–client privilege and work-product doctrine—because they are different.  As the Valeo court recognized, a privilege holder may waive the attorney–client privilege expressly by disclosing protected information to a third party or otherwise making it public.  And the privilege holder need not have intended to waive the privilege—the disclosure alone is usually enough.  The privilege holder may also waive the privilege by implication, such as asserting a defense that relies on privileged information.

By contrast, one may expressly waive the work-product doctrine by disclosing protected materials to an adversary in litigation or in a manner that, as the court correctly put it, “substantially increases the opportunities for potential adversaries to obtain the work product.”

Ruling—Work Product Waiver

Applying these legal standards, the court “easily concluded” that Nvidia’s voluntary decision to rely on its in-house lawyers’ affidavits in the German proceeding waived the work-product protection in the U.S. proceeding.  Nvidia argued that its in-house counsel disclosure was involuntary because the German tribunal ordered an investigation and wanted to know the results. But the U.S. court noted that the German court did not require Nvidia to “submit affidavits from its attorneys” to show compliance with its investigation order.

And these affidavits disclosed the investigation’s details, identity of employee-witnesses, and content of employee interviews, resulting in the U.S. court concluding this—

In short, Nvidia has made its in-house counsel fact witnesses.

The U.S. court noted, however, that this express waiver extended only to fact work product and did not “automatically extend to opinion work product, which typically includes counsel’s mental impressions, conclusions, opinions, and legal theories.” While a party may certainly waive opinion work product, such as where it affirmatively places its attorneys’ opinions at issue, Nvidia limited its lawyers’ affidavits to the factual part of the investigation without diving into their opinions.   

Ruling—Attorney–Client Privilege

As to Nvidia’s privilege objection, the U.S. court, again easily, found that Nvidia waived the privilege over its in-house lawyer’s communications with employees during the investigation because he disclosed those communications in his German affidavit.  The court seemed skeptical, too, of Nvidia’s claim that the privilege covered its IT employee’s investigation materials, providing this warning:

The Court reminds Nvidia that a communication is not privileged merely because an attorney is copied on it; nor does the privilege encompass a record that is attached to, linked with, or pasted into a communication seeking advice of counsel, where the record itself is not privileged.

But the court stopped its admonitions and waiver findings there after finding that Nvidia had not, to date, relied on privileged information to defend the U.S. action which would have otherwise warranted an implied-waiver finding.

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Many in the corporate world provide internal training or communicate ideas, plans, guidelines, and the like through PowerPoint presentations.  This includes in-house lawyers, who often use PowerPoint or some other presentation aid to advise employees on various legal-related issues.  And, of course, lawyers and non-lawyer employees circulate those slide decks to seek feedback and revisions, some legal and some perhaps not so legal.

The question arises whether the corporate attorney–client privilege protects PowerPoint presentations either prepared by in-house counsel or on which an in-house lawyer provided input.  One court, in a rather routine situation, said no—the privilege did not protect from discovery an in-house lawyer’s PowerPoint used to train employees on antitrust compliance because the slide deck pertained more to business than legal issues.  In re Diisocyanates Antitrust Litig., 2024 U.S. Dist. LEXIS 126413 (W.D. Pa. Mar. 28, 2024) (opinion available here).  Let’s discuss the reasons and look for clues for how to increase the chances of protecting those legal PowerPoints.

Antitrust Training Session

In February 2018, a major U.S.-based chemical company tasked its in-house antitrust counsel with providing antitrust compliance training to certain non-lawyer employees, including account managers, sales directors, and production managers.  The training specifically focused on antitrust-compliance issues that may arise from the company’s internal pricing program known as Credit Upon Proof of Sale, or “CUPS.”

The antitrust counsel created a PowerPoint to aid in delivering the CUPS training.  The PowerPoint, in part, instructed the attendees to “consult counsel” or to engage their supervisor, the company’s legal representatives, or the Office of Ethics and Compliance if they had questions or needed additional guidance.  In the PowerPoint’s notes section, typically used to prompt the presenter during the presentation, the antitrust lawyer recorded this—

This training is to raise awareness of the principles and framework in which business decisions will be evaluated by antitrust regulators.  It is not a substitute for specific legal guidance in any particular situation or geography.

Motion to Compel

In a later MDL proceeding wherein several plaintiffs alleged that the company, among others, conspired to fix certain prices in violation of antitrust laws, the plaintiffs moved to compel production of the company’s PowerPoint presentation used to conduct the February 2018 training.  Relying in part on the company’s privilege-log description of the slide deck as a “general guideline,” the plaintiffs argued that the PowerPoint, while perhaps based on legal advice, was nothing more than general instructional guidelines that were nothing more than business policies.

The company maintained its privilege objection and refuted the plaintiffs’ “general guideline” argument.  In support, the company submitted the sworn declaration, available here, of its Associate General Counsel for Corporate Transactions (the antitrust in-house lawyer was no longer with the company).  This AGC said the PowerPoint was a “training presentation” that contained the antitrust lawyer’s “legal advice as to how to adhere to” the CUPS program.

In Camera Review and a Ruling

The court could not make a privilege call based on the privilege log, the lawyers’ conferral efforts, and the AGC’s declaration, and therefore reviewed the slide deck in camera. The court noted the attorney–client privilege’s “laudable purposes” but construed the privilege narrowly because it “obstructs the truth-finding process.”  In reviewing the PowerPoint presentation, the court looked for a (1) communication (2) made between privileged persons (3) in confidence (4) for the purposes of obtaining or providing legal advice.

And upon review, the court found that the PowerPoint presentation was primarily a “generalized reference or instructional guide akin to a business policy covering its policies and practices such as its Code of Business Conduct.”  The court could not determine, either from the slide deck or the company’s supporting evidence, whether the attendees could “pose questions and receive particularized legal advice in return,” but said this—

What is clear is that the PowerPoint slide deck itself, which is the sole subject of this discovery dispute, does not communicate particularized legal inquiries or legal advice.

The nail in the coffin, though, came from the antitrust lawyer’s own presenter notes that the training’s purpose was to raise awareness about making business decisions with government regulators in mind and was not a substitute for “specific legal guidance.”

The court essentially found the privilege’s legal-advice component missing—based on the PowerPoint’s own language—and ordered the company to produce the entire PowerPoint presentation.

POP Analysis

The training session’s subject appears focused on regulatory compliance, which some courts, as described in this post, consider business-related rather than legal-related. Perhaps the court had this question in mind when reviewing the PowerPoint and finding little “legal advice” language.

When creating what should be a privileged communication, let’s “write for tomorrow,” meaning to consider the words you compose today as a judge will view them in camera tomorrow or, more accurately, months or years down the road. If conveying legal advice, say so explicitly within the PowerPoint, and instruct, within the deck, that the audience may not disseminate it without lawyer approval. While labels, such as “privilege and confidential,” certainly help, courts reviewing slide decks in camera search for the request for or delivery of specific legal advice. In short, make the legal advice explicit.

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Employers routinely investigate employee harassment or hostile-work-environment complaints yet inconsistently achieve privilege protection for those investigations.  For instance, a Florida employer failed to achieve privilege protection for notes of its investigator—who doubled as an attorney and HR Director—regarding an employee’s FMLA claim.  And a North Carolina law firm lost privilege protection for its outside counsel’s investigation of a harassment complaint because, the court found, the investigation was conducted for business reasons rather than legal.

By contrast, a Utah employer, Midwest Commercial Interiors, secured privilege protection for its outside counsel’s investigation of an employee’s harassment complaint.  Tingey v. Midwest Office, Inc., No. 1:22-cv-00145-TC-JCB, 2024 U.S. Dist. LEXIS 22445 (D. Utah Feb. 7, 2024).  And the judge’s opinion, available here, offers practical and persuasive lessons for the privilege victory and, when contrasted to the North Carolina situation, provides strategic lessons for those seeking access to the investigations.  Let’s discuss it.

Other Similar Incidents and a Mulligan

A former account manager at MWCI sued the company and several “Supervisor Defendants” after a co-employee allegedly “drugged and raped” her on a business trip to Georgia.  During discovery, the plaintiff requested information related to MWCI’s investigation into harassment claims of another employee, E.S.  MWCI sought a protective order, available here, but argued only that the investigation-related documents, prepared by outside counsel, were nondiscoverable because they were disproportionate to the case.  MWCI did not assert a privilege objection.

But at the end of oral argument, MWCI mentioned that the attorney–client privilege also sheltered outside counsel’s E.S. investigation from disclosure.  The judge, apparently in a gracious mood, gave MWCI a mulligan, which sometimes happens, to submit supplemental briefing on the privilege issue.

Declarations and a Response

And submit it did.  MWCI, clearly recognizing that it had the burden of proving that its lawyer conducted the investigation for legal-advice purposes, submitted the declaration of its partial owner.  The declaration, available here, stated succinctly that, when the E.S. allegations arose, the company turned to outside counsel “to investigate the allegations and to give us legal advice about what steps we should take to protect our employee and also the company.”

That’s pretty strong, but the outside lawyer’s declaration, available here, surpassed it.  As to the purpose of his retention, the lawyer said this—

The company “asked me to conduct an investigation in order to provide legal advice regarding the merits of the complaint, the company’s potential liability, and the corrective action that should be taken.”

In an area where declarations are often conclusory, this one was deliberately specific.  The lawyer generally explained his investigation, which included interviewing the complainant, the alleged perpetrator, an HR representative, and other employees.  He advised these interviewees that he was “conducting the investigation for the purpose of providing legal advice to the company.”

The plaintiff’s response, available here, unfortunately contained little evidentiary rebuttal.  The brief mentioned that MWCI maintained a policy mandating investigations of sexual-harassment complaints, an argument that won the day in the North Carolina decision but did not expound on that aspect.  There was no deposition testimony of MWCI employees discussing its traditional implementation of this policy; no evidence of the engagement letter between MWCI and its outside counsel, and no evidence that may have countered MWCI declaration testimony.

Ruling

The court appropriately applied federal privilege law in this federal-question case and held that the attorney–client privilege protects client-to-lawyer communications (and vice-versa) “made in order to obtain legal advice.”  And in the employee-investigation context, it relied upon this statement from a Seventh Circuit opinion—

When an attorney conducts a factual investigation in connection with the provision of legal services, any notes or memoranda documenting client interviews or other client communications in the course of the investigation are fully protected by the attorney–client privilege.

And relying upon MWCI’s sworn declarations—for there was no countering evidence—and an in camera review, the court easily found that MWCI proved that its investigation into E.S.’s allegations were legal-advice related.  To be sure, the court found that the privilege did not protect “purely logistical” communications, such as emails scheduling meetings to discuss the investigation; but it held that the investigation’s core—the interviews and substantive client–lawyer communications—were nondiscoverable.

Take-Aways

For employers, MWCI’s supplemental handling of its privilege objections offers a good model to follow.  It supplied testimony from an executive and the lawyer to describe the investigation’s purpose. And the declarations were specific, not conclusory.  For employees seeking OSI investigations, the North Carolina case supplies the better model.  While an insurance-coverage case, the opinion shows that evidence of a mandatory-investigation policy coupled with employee testimony about that policy may overcome even the declaration of outside counsel.

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