Love v. Permanente Med. Group (Summary)

ATTORNEY-CLIENT PRIVILEGE

Love v. Permanente Med. Group, No. C-12-05679 DMR (N.D. Cal. Feb. 19, 2014)

The United States District Court for the Northern District of California found that the attorney-client privilege had been waived by the presence of a “guest” at a meeting of a Credentials and Privileges Committee (“Credentials Committee”) and, therefore, granted a request for the production of unredacted committee minutes.  The plaintiff, a social worker, had been employed by a medical group in its chemical dependency division.  The social worker had learned of a death threat against her, made by one of her patients, and requested that the medical group obtain a restraining order.  According to the complaint, when the medical group refused, the social worker complained about workplace safety and the medical group retaliated by bringing disciplinary charges against her, and subsequently terminated her employment.  The social worker sued.

During the course of discovery, the social worker sought the production of Credentials Committee minutes.  The medical group produced the minutes, in redacted form, claiming the redacted portion was protected by the attorney-client privilege because it pertained to advice that had been given by legal counsel. 

After reviewing the minutes, the court agreed that the privilege had not been waived simply because the legal opinion had been communicated by the administrator to the Credentials Committee instead of by counsel herself.  Even sharing the legal opinion with the Credentials Committee did not constitute a waiver of the privilege, the court found.

However, according to the court, the privilege was waived by communicating protected information in the presence of a “guest.” The court reasoned that the “guest” did not have any connection to the social worker, the relevant departments and committees, any aspect of the litigation, or any common legal interest to support an assertion of the common legal interest privilege.  Rather, the “guest,” who was identified as the chief of the department of pediatrics, had been invited to the Credentials Committee meeting to address questions pertaining to pediatric privileges.

It is worth noting that it was not clear from the minutes that the guest had actually been present when the legal opinion was shared.  However, as the court pointed out, the party claiming the privilege bears the burden of proving that it applies.  Since there was nothing in the minutes to reflect that the guest had, in fact, left the meeting when the privileged communication was shared, the court concluded that the privilege had been waived.