District Court, Tooele Department The Honorable Robert W.
Adkins No. 130301902
J. Drake, Mark O. Morris, and Paul W. Shakespear, Attorneys
R. Guelker and Janet I. Jenson, Attorneys for Appellee
David N. Mortensen authored this Opinion, in which Judges
Gregory K. Orme and Jill M. Pohlman concurred.
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.
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."
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,  but did not argue that the motion should
be denied on that basis.
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
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.
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."
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.
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
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."
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
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
Id. ¶¶ 9, 12, 28.
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."
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."
Defendants' attorney admitted several times throughout
the August hearing that the original privilege log was
deficient.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."
Defendants now appeal.
AND STANDARDS OF REVIEW
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 ...