Informative Comments on In-House Counsel’s Dual Role and Challenges with Attorney-Client Privilege 2

A recent post on inhouseblog.com references a good article from InsideCounsel on protecting the attorney-client privilege.  The article highlights the dual role–business and legal–played by in-house counsel and the challenges they face in parsing those duties while maintaining the attorney-client privilege.  Well worth the read.  Also note recent PoP post  regarding the Idaho federal court’s instructive comments on applying the attorney-client privilege to in-house counsel.

Courts Divided–Application of Medical Peer Review Privilege in FTCA Cases

Medical malpractice cases brought in federal court under the Federal Tort Claims Act (FTCA) often raise issues regarding discovery of information generated in the context of the medical peer review process.  While all 50 states recognize a medical peer review privilege, there is no federal common law peer review privilege.

But medical malpractice cases brought against the federal government under the FTCA pose unique problems.  Because the FTCA is a basis for federal question jurisdiction, claims brought under this act in federal court will be subject to federal law on evidentiary privileges.  See Menses v. U.S. Postal Serv., 942 F. Supp. 1320 (D. Nev. 1996).  And following this conflict-of-laws rule, peer review information sought in a medical malpractice case brought under the FTCA would generally find no privilege protection under federal law.  Some federal courts, however, stray from this general rule and apply state-law privileges in certain situations under the doctrine of comity.

The Illinois federal court’s decision in Sevilla v. United States, 852 F. Supp.2d 1057 (N.D. Ill. 2012), provides an informative illustration.  In this medical malpractice case against a physician employed by the United States, the federal government asserted the peer review privilege found in Illinois’ Medical Studies Act to withhold from discovery information generated as part of the peer review process.  The Court recognized that the majority of federal courts do not recognize a medical peer review privilege under the FTCA, but ultimately ruled that the government should be able to use Illinois’s peer review privilege in this medical malpractice case.  The Court held that the Supreme Court’s rejection of a federal peer review privilege in Univ. of Pennsylvania v. EEOC, 493 U.S. 182 (1990), was limited to an academic peer review privilege.  Instead, the Court followed the teaching of Jaffee v. Redmond, 518 U.S. 1 (1996), regarding criteria for recognizing new privileges, and found that recognizing a peer review privilege in the medical malpractice FTCA context met that criteria.

The Sevilla court limited its holding to application of the medical peer review privilege in medical malpractice cases filed under the FTCA, but the Court could have been clearer that it was applying the Illinois medical peer review as a matter of comity rather than adopting a federal common law peer review privilege.  The Court failed to address that many courts, following Jaffee, have ruled that comity may not serve as a basis to recognize a state-law privilege in federal-question cases. See, e.g., Folb v. Motion Picture Indus. Pension & Health Plans, 16 F. Supp. 2d 1164 (C.D.  Cal. 1998).  But the Court’s decision shows that federal courts are divided on the issue, and whether the peer review privilege applies in FTCA medical malpractice cases depends on the federal jurisdiction in which the case is filed.

N.M. Supreme Court and Executive Privilege Part II: Chief-Executive Communications Privilege 2

N.M. Governor Susana Martinez

In Republican Party of New Mexico v. New Mexico Taxation & Revenue Dep’t, 283 P.3d 853 (N.M. 2012), the New Mexico Supreme Court issued a major decision on the executive privilege by rejecting the deliberative process privilege but adopting a limited chief-executive communications privilege.  PoP analyzed the deliberative process privilege in an earlier post, and focuses here on the scope of the chief-executive communications privilege.

The Court analyzed federal decisions recognizing and applying the presidential communications privilege and the few state decisions that have adopted a privilege for gubernatorial communications, best described as a chief-executive communications privilege. The Court decided to recognize a communications-based privilege for New Mexico’s governor, but severely limited its scope.  The privilege applies only to communications involving the governor’s decisionmaking and specifically does not apply to communications related to other executive branch decisionmaking, such as communications of Cabinet-level departments.

The privilege applies to communications that are authored or solicited and received by the either the governor or an “immediate advisor.”  The Court refused to identify “how far down the chain” the privilege extends, saying only that it applies to “those communications to or from individuals in very close organizational and functional proximity to the Governor.”

The Court held that the chief executive communications privilege is qualified, meaning that an individual may overcome the privilege by a sufficient showing of need.  To make this need determination, the Court must balance the public’s interest in preserving confidentiality to promote intra-government candor against the individual’s need for the information.  The balancing test, however, only applies when the communications are sought during discovery in civil litigation and does not apply when the request comes under the state’s Public Records Act.

PoP Analysis. As noted in an earlier post, many federal and state courts confuse and conflate the deliberative process privilege and the chief executive communications privilege by labeling each the “executive privilege.”  Courts and lawyers should be mindful that the phrase “executive privilege” is a broad phase that encompasses four distinct evidentiary privileges: (1) chief-executive communications privilege; (2) deliberative process privilege; (3) law-enforcement privilege; and (4) government–informant privilege.  And it would be helpful to the bench and bar if lawyers and courts would follow the New Mexico Supreme Court’s lead and use the proper terminology when referring to these privileges.

By limiting the scope to communications by the governor and only her immediate supervisors, the Court adopted a narrow chief-executive communications privilege. And the Court properly held that the privilege is qualified only when asserted to resist discovery in civil litigation and is absolute when records are sought under a public records act request.  The reason is that individuals making a public records act request are not required to show a need for the documents while in civil discovery parties must request only documents reasonably likely to lead to the discovery of admissible evidence.  Many courts ignore this distinction, and the N.M. Supreme Court recognized it.