Caution! Inadequate Privilege Log Could Result in Waiver 1

 The Federal Rules of Civil Procedure and many corresponding state civil procedure rules require parties withholding privileged documents to prepare a privilege log identifying theSlide1 withheld documents and the asserted privilege.  But many lawyers either ignore these requirements or construct privilege logs that fail their essential purpose.  Many reasons exist for this privilege-log apathy: privilege logs require tedious diligence and cause lawyers to procrastinate in their preparation; lawyers don’t insist on privilege logs from their adversaries for fear their adversaries will respond in kind; and some lawyers decide that legal strategy calls for keeping privilege claims intentionally vague and provide a general privilege log with no specifics.

The days of privilege log apathy are coming to an end.  Courts are increasingly exhibiting more scrutiny of privilege logs and imposing sanctions, including the significant sanction of waiver, for insufficient privilege log descriptions.  The privilege-log rule, however, is intentionally vague and simply requires parties to “describe the nature” of the putatively privileged document in a manner that “will enable other parties to assess the
claim.”  Fed. R. Civ. P. 26(b)(5)(A).  But several courts, through common law decisions or via local rules, now impose strict requirements on the composition of privilege logs.

In my article, Ignoring Privilege Log Obligations May Prove Costly, published by the Inside Counsel magazine and website, I explore the necessity of privilege logs, the various rules and requirements that some courts now impose, and outline the adverse consequences for failing to comply with these requirements.  I end the article with a list of practical tips that should aid lawyers in preventing privilege log mishaps and privilege waiver.  You may access the article at this link.  My thanks to Inside Counsel for publishing the article and allowing access through this post.

Excellent IADC Article on Joint Defense Agreements and Joint Defense Privilege 1

Lawyers representing multiple defendants in a single lawsuit regularly share information such as witness-interview notes, deposition summaries, client-interview notes, expert-interview notes, legal memoranda, and other confidentiallawyersagreement information relevant to all defendants.  Defendants are not alone in this information-sharing–plaintiffs’ lawyers in multi-plaintiff cases often share documents in which they have a common interest.  Several privilege-related questions arise when parties share confidential information.  Does sharing confidential information waive any applicable evidentiary privilege or the work-product doctrine? Is a joint defense agreement necessary to preserve privilege assertions? What provisions should a joint defense agreement contain? Are there any disadvantages to entering a joint defense agreement?

In their excellent article, In Unity There is Strength: The Advantages (and Disadvantages) of Joint Defense Groups, 80 Def. Counsel J. 29 (Jan. 2013), published in IADC’s reputable Defense Counsel Journal, Chicago trial lawyers Brad Nahrstadt and Brandon Rogers explore all aspects of joint defense agreements, including the scope of the joint defense privilege.  The article discusses the advantages and drawbacks of forming information-sharing groups and what pre-litigation events trigger a joint defense situation necessary to secure the privilege.  The authors identify a very helpful list of 33 provisions that parties should consider including in their joint defense agreement and, importantly, discuss ethical conflict-of-interest issues that may arise.

The authors remind us that the joint defense privilege, also called the common interest privilege, is not actually an independent privilege, but rather a doctrine of non-waiver.  The joint defense privilege precludes waiver of other evidentiary privileges that protect information shared with the defense group as well as communications among lawyers for parties within the group.  You may access the article at this link, and I recommend it as a “must read” for lawyers drafting joint defense agreements and otherwise wanting to share privileged information without waiving the privilege.

My thanks to authors Brad Nahrstadt and Brandon Rogers and the International Association of Defense Counsel (IADC) for permission to link this article in this post.

Physician’s Post-Op Comments Not Protected by Peer-Review Privilege 1

An Illinois Appellate Court recently ruled that a physician’s post-operation comments to the Medical Affairs Diretor were not protected by the medical peer-review privilege.  The Court issued this ruling despite the fact that the physician making the comments later participated in formal peer-review committee meetings.  See Tunca v. Painter, 980 N.E.2d 1132 (Ill. App. Ct. 2012).

The peer-review privilege in Tunca arose in an atypical case-setting.   Plaintiff Dr. Tunca, a surgeon specializing in gynecological oncology, cut a patient’s femoral artery during surgerMedical teamy to remove an ovarian tumor.  Defendant Dr. Painter, a vascular surgeon, later repaired the cut by performing a femoral-femoral bypass.  After the surgery, Dr. Painter informed the Medical Affairs Director that Dr. Tunca had negligently and inadvertently severed the patient’s artery during the first operation.  Dr. Painter later made similar comments to other medical staff.  These comments were made in June 2006, and the hospital’s peer-review committee reviewed the incident in February 2007.

Illinois’ peer-review statute provides that “all information, interviews, reports, statements,” etc. are “privileged and strictly confidential.”  735 Ill. Comp. Stat. 5/8-2101.  Dr. Tunca sued Dr. Painter alleging that Painter’s comments were slanderous and violated Illinois’ peer-review statute.  The appellate court, however, held that Dr. Painter’s post-operation comments were not protected by the peer-review statute.  The court narrowly interpreted the statute to protect from compelled disclosure only those statements made while a committee is actually engaged in the peer-review process.  Statements made before the peer-review process begins or after it ends fall outside the peer-review privilege.

The court reiterated that information obtained after a medical incident but before the peer-review process formally begins is not privileged; nor does this information transform into privileged material when it is later reported to a peer-review committee.  Even statements made in anticipation of a peer-review process are not covered.  Simply put, the peer-review privilege does not protect letters, emails, declarations, and statements made before the peer-review process formally begins.

PoP Analysis.  Even though the Tunca case arose in a defamation setting, it contains lessons for in-house and outside counsel representing medical providers in malpractice settings.  This case follows so many other decisions that narrowly interpret privilege rules and statutes.  Physicians routinely discuss post-incident information for purposes of learning what occurred and preventing repeat incidents, which is the same goal as the peer-review process.  Yet, these statements are not privileged unless made after formal institution of medical peer-review proceedings.  Counsel should endeavor to train physicians and medical staff regarding how to handle post-incident comments and discussions.  While not all states follow Illinois’ strict statutory construction, the Tunca case should serve as caution in all peer-review situations.