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Vered v. Tooele Hospital Corp.

Court of Appeals of Utah

January 25, 2018

Eldad Vered, Appellee,
Tooele Hospital Corporation, Executive Medical Committee of the Medical Staff of the Mountain West Medical Center, Tracy Schaffer, and Yvonne Nielson, Appellants.

         Third District Court, Tooele Department The Honorable Robert W. Adkins No. 130301902

          Curtis J. Drake, Mark O. Morris, and Paul W. Shakespear, Attorneys for Appellants

          Gary R. Guelker and Janet I. Jenson, Attorneys for Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.


          MORTENSEN, Judge.

         ¶1 In this interlocutory appeal, we address questions regarding the invocation of the care-review privilege and the mechanics of a privilege log in establishing the applicability of that privilege. Twice the district court rejected Defendants' assertion that they had established that the care-review privilege applied. Defendants ask this court to give them a third bite at the apple by remanding to the district court so that they may reassert their twice-rejected arguments regarding the care-review privilege. We decline to do so and affirm the district court's decision.


         ¶2 Dr. Eldad Vered filed suit against Defendants, alleging breach of contract, defamation, and interference with economic relations. In February 2014, Dr. Vered served Defendants with his first set of discovery requests. In April, Defendants responded, setting off a string of discovery disputes between the parties. On September 3 of that year, Dr. Vered filed with the district court a statement of discovery issues and asked for the court's intervention. He specifically requested that the court order Defendants "to produce all documents and things which defendants agreed to produce in their responses to Plaintiff's First Set of Requests for Production of Documents, " "to answer all of the Interrogatories, " and "to respond to all of the Requests for Production of Documents."

         ¶3 On September 11, Defendants filed an opposition to Dr. Vered's statement of discovery issues. They argued that Dr. Vered's motion was moot because "Defendants are already, and have been in the process of finalizing a privilege log and supplemental responses with the discoverable information and documents sought" by Dr. Vered. They also noted that Dr. Vered's counsel had failed to "meet and confer in person or by telephone before filing his Statement, as [then] required by Rule 4-502(2)(A)" of the Utah Rules of Judicial Administration, [1] but did not argue that the motion should be denied on that basis.

         ¶4 The district court set the matter for hearing on October 6. Before the hearing, but after filing their opposition, Defendants provided Dr. Vered with a privilege log that identified 119 documents purportedly protected by the care-review privilege. At the hearing, the parties and the court discussed not only the statement of discovery issues but also the privilege log. Defendants did not argue that Dr. Vered had failed to comply with the meet-and-confer requirement.

         ¶5 Defendants indicated that there was not "necessarily a dispute as to" some of the issues raised by Dr. Vered, but they disagreed as to the application of the care-review privilege. Dr. Vered argued that Defendants, as the "party asserting the privilege[, ] must provide [an] . . . 'adequate evidentiary basis to show that the documents were prepared specifically to be submitted for review purposes.'" (Quoting Wilson v. IHC Hosps., Inc., 2012 UT 43, ¶ 115, 289 P.3d 369.) He also claimed that Wilson stood for the proposition that a party asserting the privilege must "submit an affidavit or provide some witness testimony to show that the documents that [it is] claiming as a privilege really fall within that privilege, " which Defendants failed to do. Ultimately, Dr. Vered asked the court to compel the production of all the documents listed on the privilege log because Defendants had failed to identify an evidentiary basis for claiming privilege and thus had not "met their burden of establishing" that the care-review privilege applied.

         ¶6 Defendants countered that they "read the privilege a little . . . differently" in that they believed "[i]t's a very broad privilege." They also offered that they had "no problem providing an affidavit or a witness to lay the foundation for the applicable privilege, but this process did not allow for [them] to provide an affidavit."

         ¶7 The district court concluded that "there ha[d] not been an adequate evidentiary basis to show that the documents were specifically prepared to be submitted for the review purposes" and ordered "that all of the documents be produced." Defendants asked for clarification: "As far as the production of the care review materials, if we provide the evidentiary basis or [are] you saying that that door is shut[?]" The district court responded, "That door is shut at this point, " and asked Dr. Vered's attorney to prepare a written order.

         ¶8 When Dr. Vered's attorney submitted the proposed written order, Defendants objected and filed a motion for reconsideration. They requested that the district court reconsider its order requiring production of the documents for which Defendants had suggested the care-review privilege applied. Defendants argued that "the Court did not have the proper information before it at the hearing" because Dr. Vered had presented a "surprise argument, " leaving Defendants unprepared to "provide[] the proper information before the Hearing." Defendants reasoned that if they had been prepared to provide the district court with the "proper information, " the court "then would likely have followed the steps established by other Utah courts when presented with an issue of whether a party's care review documents are privileged." (Citing Wilson, 2012 UT 43; Cannon v. Salt Lake Reg'l Med. Center, Inc., 2005 UT App 352, 121 P.3d 74.) Defendants also argued that they had been unprepared to provide an affidavit supporting their invocations of the care-review privilege because Dr. Vered had been "lying in wait" until the hearing to take the "secret position" that Defendants had waived their claims of privilege.[2]

         ¶9 As exhibits to their filings, Defendants attached two documents of particular note. The first was a letter written by Defendants' attorney in July 2014, in which he promised that "for those documents that Defendants withhold[] because of privilege or work product, we will provide you with an appropriate privilege log." This letter was sent three months before Defendants provided their privilege log to Dr. Vered. The second exhibit was an affidavit from the "Quality Director for Mountain West Medical Center." In that affidavit, the Quality Director outlined the types of documents contained in Dr. Vered's credentialing and quality files-documents for which Defendants had claimed the care-review privilege applied-and represented that the documents in the files "are and were gathered and submitted to Mountain West Medical Center and its in-house committees specifically for review purposes . . ., for the purpose of reducing morbidity and mortality, and for the evaluation and improvement of health care." The Quality Director further represented that any "individuals who reviewed this information did so for care review, peer review, and improvement purposes."

         ¶10 Around the time Defendants filed their motion for reconsideration, the Utah Supreme Court issued its decision in Allred v. Saunders, 2014 UT 43, 342 P.3d 204. That decision addressed the care-review privilege; clarified that the privilege protects "information compiled or created during the . . . care-review process from both discovery and receipt into evidence"; addressed amendments to rule 26 of the Utah Rules of Civil Procedure, along with their impact on the care-review privilege; and explained that

in camera review is not required in all cases. Rather, parties seeking to withhold arguably privileged material from discovery must create a privilege log identifying each document or item withheld from production and provide sufficient foundational information to allow the court and opposing parties to evaluate the validity of the claimed privilege.

Id. ¶¶ 9, 12, 28.

         ¶11 The parties appeared for a hearing on Defendants' motion to reconsider in August 2015. Defendants reiterated that Dr. Vered did not challenge the adequacy of the evidentiary basis supporting the claim of privilege in his statement of discovery issues but raised it for the first time at the October 2014 hearing. They also argued that Allred constituted a "change in the law" that warranted reconsideration of the court's order. Specifically, Defendants argued that under Allred, "there is no requirement of an affidavit" and that the parties were "only at stage one. We have provided a privilege log to the plaintiff. The opposing party has not raised objections to the . . . privileges asserted in that log, " and Defendants expressed that they did not think "the situation [was] ripe at this time for the Court to undertake an in-camera review." Instead, Defendants asked the court for "a couple of weeks to go back and supplement this privilege log."

         ¶12 Dr. Vered responded that an objection to the privilege log could not have been made before the October 2014 hearing because the log had not been received until just days before the hearing. He also argued that the problem with the privilege log "wasn't that it wasn't accompanied by an affidavit per se. It was really that there was nothing on the log that provided any foundation showing why the privilege applied." In his view, "The case law was clear that you have to provide an adequate evidentiary basis to show that the documents were prepared specifically to be submitted for review purposes."

         ¶13 Defendants' attorney admitted several times throughout the August hearing that the original privilege log was deficient.[3]He acknowledged that he did not know whether the privilege log "satisfie[d] all the foundational requirements" set forth in Allred, and that they could "do a better job." The court ultimately explained that it "could not conclude and still today cannot conclude that [the documents] are privileged, " and, because Defendants had not "show[n] that the documents are privileged, " the court "affirm[ed] its prior oral ruling."

         ¶14 Defendants now appeal.


         ¶15 Defendants raise three issues for our review. They first ask us to decide whether the district court erroneously determined that Defendants waived their claims of privilege by not providing a supporting affidavit with their privilege log to lay the evidentiary foundation for the privilege. Next, Defendants maintain the district court abused its discretion when it ordered Defendants to produce the requested documents, without first reviewing the documents in camera. Finally, Defendants assert the district court ...

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