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Jansson v. Stamford Health, Inc.

United States District Court, D. Connecticut

May 7, 2018




         Plaintiff Samantha Jansson, M.D., an anesthesiologist, commenced this civil rights action against a number of defendants, including Stamford Health, Inc. d/b/a Stamford Hospital ("Stamford Hospital") and Stamford Anesthesiology Services, P.C. ("SAS"). The litigation was generated by a notice of termination of employment SAS gave to Jansson in October 2014. The Court has had occasion to file a number of prior rulings in the case. Familiarity with them is assumed.

         The case is now before the Court on a dispute involving pretrial discovery. Plaintiff has filed a motion [Doc. 190] to compel Stamford Hospital to produce a number of documents. Stamford Hospital resists production on the ground that these documents are protected by a privilege, of one kind or another. In compliance with the local rules of practice, Stamford Hospital filed a privilege log purporting to explain and justify those claims of privilege. Plaintiff contends that the documents in question are not privileged as a matter of law, or their privileged status has not been satisfactorily demonstrated by Stamford Hospital, whose burden it is to do so.

         This Ruling resolves the motion.


         There are two institutional Defendants in this action: Stamford Hospital (sometimes referred to as "Stamford Health"), and Stamford Anestheliology Services, P.C. ("SAS"). These Defendants resist discovery of certain documents requested by Plaintiff Dr. Jansson. Defendants contend they are immunized from production by the attorney-client privilege, or by the attorney work product privilege.

         The designation of the second principle has evolved over time. Fed.R.Civ.P. 26(b)(3) is captioned "Trial Preparation: Materials" and provides: "Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party . . . ." Rule 26(b)(5)(A), which was added in the 1993 Amendments to the Rule, mandates certain procedural steps whenever a party withholds information from discovery "by claiming that the information is privileged or subject to protection as trial-preparation material, " thereby seeming to distinguish between "privileged" and "protected" information.

         The Advisory Committee's Notes to the 1993 Amendments echo that distinction: "A party must notify other parties if it is withholding materials otherwise subject to disclosure under the rule or pursuant to a discovery request because it is asserting a claim of privilege or work product protection." The Notes substitute the synonymous phrase "work product" for the Rule's phrase "trial-preparation." Moore's text discusses the "attorney-client privilege" as a creation of federal common law, and then turns to the "work product doctrine." 6 Moore's Federal Practice §§ 26.49, 26.70 (Matthew Bender 3d ed. 2009).

         Notwithstanding these differences in phrasing, the Second Circuit has taken to referring to the "trial material" or "work product" concept as "the work product privilege." See, e.g., United States v. Constr. Prod. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996) (In addition to the attorney-client privilege, "Respondents also assert a work-product privilege."); A. Michael's Piano, Inc. v. F.T.C., 18 F.3d 138, 146 (2d Cir. 1994) ("The attorney work product privilege protects" certain files). In the discussion that follows, I will adopt the Second Circuit's parlance and characterize each concept, attorney-client and work product, as a privilege.


         The principles which guide the application of these privileges are well settled. The leading treatise says:

Discovery is not permitted as to privileged matters. The reference in the discovery rules to privilege is to evidentiary privilege. . . . Privilege, unlike relevance, is narrowly construed. The burden of establishing that a privilege exists is on the party claiming the privilege.

6 Moore, § 26.47[1][a].

         Someone who claims an evidentiary privilege is in effect saying to the world: "I possess evidence about what is true in this case and who is right; but this privilege gives me an exemption from having to testify about it." The law allows certain privileges of that nature, but does not favor them: hence the narrow construction noted by Professor Moore. In United States v. Bryan, 339 U.S. 323 (1950), Chief Justice Vinson cited iconic authority for that proposition:

Certain exemptions from attending or, having attended, giving testimony are recognized by all courts. But every such exemption is grounded in a substantial individual interest which has been found, through centuries of experience, to outweigh the public interest in the search for truth. Dean Wigmore stated the proposition thus: "For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man's evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule."

339 U.S. at 331 (quoting Wigmore, Evidence § 2192)(3d ed.).

         In Branzburg v. Hayes, 408 U.S. 665 (1972), where the Court refused to create a First Amendment testimonial privilege for newsmen subpoenaed before grand juries, a footnote in Justice White's majority opinion quotes the same passage from Wigmore:

The creation of new testimonial privileges has been met with disfavor by commentators since such privileges obstruct the search for truth. Wigmore condemns such privileges as "so many derogations from a positive general rule (that everyone is obligated to testify when properly summoned)" and as "obstacle(s) to the administration of justice." 8 J. Wigmore, Evidence § 2192 (McNaughton rev. 1961). His criticism that "all privileges of exemption from this duty are exceptional, and are therefore to be discountenanced, " id., at § 2192, p. 73 (emphasis in original) has been frequently echoed.

408 U.S. at 690 n.29 (citing treatises and cases).

         In McMann v. Securities and Exchange Commission, 87 F.2d 377 (2d Cir. 1937), which rejected an investor's effort to protect as privileged his broker's records subpoenaed by the SEC, Judge Learned Hand also cited Wigmore:

[T]he duty to disclose in a court all pertinent information within one's control, testimonially or by the production of documents, is usually paramount over any private interest which may be affected. Wigmore, Secs. 2192, 2193. There are of course the traditional privileges touching communications made in certain confidential relations; but a broker's customer is not a client, a penitent, a patient or a spouse. Therefore, although we assume, as we do, that the conduct of investigations under these statutes is subject to the same testimonial privileges as judicial proceedings, it will not serve McMann; he must erect a new privilege ad hoc. The suppression of truth is a grievous necessity at best, more especially when as here the inquiry concerns the public interest; it can be justified at all only when the opposed private interest is supreme.

87 F.2d at 378.

         Judge Friendly's opinion in United States v. Kovel, 296 F.2d 918 (2d Cir. 1961), which involved a grand jury subpoena upon an accountant employed by attorneys, referred to the Wigmore proposition as one of two opposing principles, whose proper resolution in a given case requires careful factual analysis. Judge Friendly said:

Decision under what circumstances, if any, the attorney-client privilege may include a communication to a nonlawyer by the lawyer's client is the resultant of two conflicting forces. One is the general teaching that "The investigation of truth and the enforcement of testimonial duty demand the restriction, not the expansion, of these privileges, " 8 Wigmore, Evidence (McNaughton Rev. 1961), § 2192, p. 73. The other is the more particular lesson "That as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man should have recourse to the assistance of professional lawyers, and it is equally necessary that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret." Jessel, M.R. in Anderson v. Bank, 2 Ch.D. 644, 649 (1876).

296 F.2d at 920-21 (ellipsis omitted).

         In Kovel, the Second Circuit remanded the case to the district court for an evidentiary hearing to ascertain the particular circumstances resulting in the communications in question. Judge Friendly's instruction in that respect may be regarded as stating the law of the Circuit: "What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer." Id. at 922.


         The requisite elements of the two privileges Defendants invoke in the case at bar are summarized in United States v. Construction Products Research, Inc., 73 F.3d 464 (1996):

To invoke the attorney-client privilege, a party must demonstrate that there was: (1) a communication between client and counsel, which (2) was intended to be and was in fact kept confidential, and (3) made for the purpose of obtaining or providing legal advice.
Respondents also assert a work-product privilege. To invoke this privilege, a party generally must show that the documents were prepared principally or exclusively to assist in anticipated or ongoing litigation.

Id. at 473 (citations omitted).

         Second Circuit cases place upon Defendants, who invoke these privileges, the burden, which is demanding, of showing they are entitled to do so. See, e.g., von Bulow by Auersperg v. von Bulow, 811 F.2d 136 (2d Cir. 1987):

The law is clear in this circuit that a person claiming the attorney-client privilege has the burden of establishing all the essential elements thereof. That burden is not, of course, discharged by mere conclusory or ipse dixit assertions, for any such rule would foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed.

Id. at 146 (citations and internal quotation marks omitted).

         Explicit instructions exist with respect to the manner in which a claimant must establish the right to invoke one of these evidentiary privileges. The sources of those instructions are Fed.R.Civ.P. 26(b), Local Civil Rule 26(e) of this Court, and Second Circuit opinions dealing with one or another aspect of the process.

         Fed. R. Civ. P. 26(b)(5) prescribes the procedure for "claiming privilege or protecting trial-preparation materials" (or, in Second Circuit parlance, claiming either or both "privileges"). With respect to "Information Withheld, " which is the subject matter of the present motions, Rule 26(b)(5) provides that when a party withholds discoverable information by claiming it is privileged or protected, "the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed - and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Thus the Rule states in mandatory terms a party's obligation to give prompt, specific and detailed notice of a claim of privilege.

         The Advisory Committee's Notes to the 1993 Amendment identify paragraph (5) of Rule 26(b) as "a new provision, " and go on to say that the ...

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