In a personal-injury case, the plaintiff generally waives any privilege protecting communications with her health-care providers regarding the injuries for which she seeks damages. Privilege Waiver 101, right?
Not in Oregon. The state’s supreme court ruled that the physician–patient privilege precludes discovery of the plaintiff’s communications with her physician even where her medical treatment is at issue. The court’s opinion is so draconian that it prohibits a defense lawyer from asking deposition questions as routine as “what injury did you receive?”
The court’s decision offered a potential—but unanswered—waiver argument (discussed below), but otherwise allows Oregon plaintiffs to use the physician–patient privilege as a sword and a shield in personal-injury cases. Hodges v. Oak Tree Realtors, Inc., 426 P.3d 82 (Ore. 2018). You may read the decision here.
Oregon’s Physician–Patient Privilege
Oregon Evid. Code 40.325, or Rule 504-1, provides a patient, in a civil action, a privilege to refuse to disclose confidential communications with her physician. The rule contains a “nonexclusive list” (remember this phrase) of three exceptions for communications made to a physician during a:
(1) commitment-related examination (Rule 504-1(4)(c))
(2) court-ordered physical examination (Rule 504-1(4)(a); and
(3) court-ordered examination “performed under” Ore. R. Civ. P. 44 (Rule 504-1(4)(b)).
Do the last two exceptions sound redundant to you?
Issues and Ruling
When it comes to dictating customized procedures for retrieving inadvertently disclosed privileged information, the proverb is, as The Rolling Stones would say, “You can’t always get what you want.”
Federal Rule of Evidence 502(b) and FRCP 26(b)(5)(B) provide a framework for handling the inadvertent disclosure of privileged information. FRE 502(b) puts the onus on the producing party to prove that the disclosure was actually inadvertent, and that it took reasonable steps to prevent disclosures and to correct the error.
Don’t like shouldering this burden? Then read FRE 502(d), which allows parties to enter an Order bypassing FRE 502(b) and declaring that the inadvertent disclosure does not constitute privilege waiver. But I digress.
So what if a party desires its own claw-back procedures and moves for a protective order that incorporates them—must the opposing party agree? Should the Court adopt those procedures over objection? More…
Issues of relevance and privilege arise in answering the question whether common−interest agreements are discoverable. One federal court recently rejected discovery of three defendants’ common−interest agreement, and did so even though the three defendants had adverse interests that “may lead to future litigation between them.” Wausau Underwriters Ins. Co. v. Reliable Transp. Specialists, Inc., 2018 WL 4235077 (ED MI Sept. 6, 2018). You may read the Magistrate Judge’s opinion here, and the District Judge’s affirmance here.
Wausau Underwriters sued Reliable Transportation Specialists, Amarillo Ushe, and Burt Holt seeking a declaration that it did not have to pay a judgment arising from Holt’s lawsuit and ultimate $8.7M judgment against Reliable and Ushe. The three defendants entered into a “Common Interest Confidentiality Agreement” that contained “boilerplate terms” so that they could “safely share information.”
Wausau thought that the CIA contained provisions regarding tolling, settlement, indemnification, and related financial provisions. Wausau asked for the CIA, the defendants politely declined, and Wausau filed a motion to compel. The Court, without much explanation, required the defendants to submit the CIA for in camera review.
Are CIAs Privileged?
This is an interesting question, and one I will address in a future post. At oral argument, the defendants “insisted” that the “joint defense privilege” renders the CIA non-discoverable. The court sidestepped the inquiry, noting that “cases addressing the question of whether JDAs are privileged fall, quite frankly, all over the lot.” (Quoting Steuben Foods, Inc. v. GEA Process Eng’g, Inc., 2016 WL 1238785 (WDNY Mar. 30, 2016)).
The Court did not have to decide the privilege issue because the discovery of a CIA turned on relevance. More…