Wood et al v. Archbold Medical Center, Inc. et al

Filing 457

ORDER granting 432 Motion to Compel. Ordered by Judge Hugh Lawson on 09/17/09. (mbh)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA V AL D O S TA DIVISION M A R K G. W O O D , M.D., P l a i nti ff, v. A R C H B O L D MEDICAL CENTER, INC., e t al., D e f e n d a n ts . : : : : : : : : :

C a s e No. 7:07-CV-109

ORDER T hi s matter comes before the Court on the Motion to Compel Production of D o c um e nts from Defendant Simms (Doc. 432) (the "Motion") filed by Defendants J o hn D. Archbold Memorial Hospital, Inc., Archbold Medical Center, Inc., James L . Story, M.D., and Mel Hartsfield, M.D. (collectively, the "Hospital Defendants") a g a i ns t their co-defendant W e s l e y W . Simms, M.D. For the following reasons, the Motion is granted. I. FACTUAL BACKGROUND P l a i nti ff Mark G. W o o d , M.D. has brought suit against the Hospital D e fe nd a nts and several physician defendants, including Dr. Simms. Plaintiff c o m p l a i ns of various actions of the Defendants dating back to 1994. Plaintiff's p r i m a r y allegations involve a conspiracy among the Defendants to restrain c o m p e ti ti o n by Plaintiff and otherwise to harm Plaintiff financially and emotionally.

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D uri ng the course of this case, the Hospital Defendants requested certain i nfo rm a ti o n from Dr. Simms, including the following: . . . All non-privileged documents or correspondence exchanged b e tw e e n [Dr. Simms] (including [his] counsel) and Dr. W o o d (i nc l ud i ng his counsel) from 1996 forward. . . . All non-privileged documents referring to or relating to any c o m m uni c a ti o ns between [Dr. Simms] (including [his] counsel) and c o uns e l for Dr. W o o d from 1996 forward. . . . All non-privileged documents referring to or relating to any i nfo r m a ti o n [Dr. Simms] ha[s] provided to Dr. W o o d or his counsel in c o nne c ti o n with or relating to this litigation or the Hospital D e f e n d a n ts . (D o c . 432, Mov.'s Br. 3-4.) In response to these requests, Dr. Simms produced fo ur documents and a privilege log listing 173 emails sent by Dr. Simms's a tto rne y and various of Plaintiff's attorneys (the "subject emails"). In the privilege lo g , Dr. Simms claimed that the subject emails are subject to the attorney work p ro d uc t privilege and are not relevant to this case, and he refused to produce the s ub j e c t emails. The Hospital Defendants and Dr. Simms attempted to resolve the i r discovery dispute, but were unable to and the Hospital Defendants filed this M o ti o n. II. DISCUSSION T he parties' briefs present three issues for this Court to consider. First, w he the r Dr. Simms has provided sufficient information to support his claim that the subject emails are entitled to the protections of the work product privilege. Second, whether Dr. Simms waived any work product privilege to which he may

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ha v e been entitled by providing the subject emails to Plaintiff and his attorney. And third, whether the subject emails are within the scope of discovery. A. Whether Dr. Simms Met His Burden Regarding Work Product Privilege T he attorney work product privilege "shelters the mental processes of the a tto r ne y , providing a privileged area within which he can analyze and prepare his c l i e nt's case." U.S. v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170 (1975). The party claiming work product privilege has the burden of showing that it is e nti tl e d to such a privilege. See U.S. v. Schaltenbrand, 930 F.2d 1554, 1562 (1 1 th Cir. 1991); see also U.S. v. Const. Prods. Research, 73 F.3d 464, 473 (2nd C i r. 1996). To this end, courts often require the party claiming work product p ri v i l e g e to submit some type of privilege log, along with evidentiary submissions to fill in any factual gaps, to support its claim of privilege. Chilivis v. SEC, 673 F .2 d 1205, 1208 (11th Cir. 1982); see also Vaughn v. Rosen, 484 F.2d 820 (D.C. C i r. 1973); Const. Prods., 73 F.3d at 473. The party claiming the privilege must

p ro v i d e sufficient factual information for a court to be able to determine whether o r not something constitutes attorney work product. See Chilivis, 673 F.2d at 1 2 1 1 ; see also Harper v. Auto Owners, 138 F.R.D. 655, 664 (S.D. Ind. 1 9 9 1 )(re q ui ri ng a "detailed, specific explanation of why the document is privileged o r immune from discovery"). In this case, although Dr. Simms provided a privilege log, the information p ro v i d e d is not sufficient to allow this Court to determine whether the documents 3

he seeks to withhold are work product, or are entitled to any privilege. Dr. S i m m s 's privilege log is organized as a table with six columns and 173 rows. The num b e r e d rows represent individual emails, and the columns provide certain i nfo rm a ti o n regarding each email. Each column has a description of the i nfo rm a ti o n it provides. The columns provide the following information: (1) "B E G IN DOC ID#," (2) "DATE," (3) "AUTHOR§," (4) "RECIPIENT§," (5) "D E S C R IP T IO N I. EMAILS," and (6) "PRIVILEGE OR PROTECTION CLAIM." Disregarding the shortcomings of the information provided in all other c a te g o ri e s , the descriptions of the emails in category (5) are insufficient for this C o urt to be able to determine whether or not a privilege applies. The descriptions a re too brief and too vague to provide this Court any meaningful information. For e xa m p l e , Simms routinely provides such descriptions as "Out of Office Auto R e p l y ," "Same," and "Deposition schedule." Simms even describes some emails a s "Group email to all counsel". Not one of the 173 descriptions provides enough fa c tua l information for this Court to make any sort of informed decision as to w he the r or not the work product privilege applies. Additionally, this Court finds it ha rd to imagine how anyone could claim in good faith that an email described as "G ro up email to all counsel" would in any way qualify for a privilege against d i s c l o s ur e . D r. Simms has failed to show that he is entitled to the attorney work p r i v i l e g e that he claims. 4

B . Whether Dr. Simms Waived the Attorney Work Product Privilege by P ro vid in g the Subject Emails to Plaintiff and His Attorneys In their briefs, the parties have engaged in much discussion regarding c o m m o n interests, hardship and the like. But the issue involved regarding waiver o f the attorney work product privilege is much simpler than all that. The fund a m e nta l issue in this case is whether a party waives the work product p r i v i l e g e by disclosing work product to an adversary. The simple answer to this q ue s ti o n is yes. W hi l e the work product privilege is broad, it is not absolute and it can be w a iv e d . Nobles, 422 U.S. at 239, 95 S.Ct. at 2170. There is very little primary

a utho ri ty from the Eleventh Circuit Court of Appeals on what constitutes waiver of the work product privilege, but the overwhelming majority of the persuasive a utho r i ty from other circuits holds that voluntary disclosure of work product i nfo rm a ti o n to an adversary waives work product protection as to that information. See, e.g., In re Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F .2d 844, 846 (8th Cir. 1998)("Disclosure to an adversary waives the work p r o d u c t protection as to items actually disclosed, even where disclosure occurs in s e ttl e m e nt."); W e s ti ng ho us e Elect. Corp. v. Republic of Philippines, 951 F.2d 1 4 1 4 , 1428 (3rd Cir. 1991) ("Most courts hold that to waive the protection of the w o rk -p ro d uc t doctrine, the disclosure must enable an adversary to gain access to the information."); U.S. v. Mass. Inst. of Tech., 129 F.3d 681, 687 (1st Cir. 5

1 9 9 7 ) ("[W ]o r k product protection is provided against `adversaries,' so only d i s c l o s i ng material in a way inconsistent with keeping it from an adversary waives w o rk product protection."); In re Subpoena Duces Tecum, 738 F.2d 1367, 1372 (D .C . Cir. 1984)("Fairness and consistency require that appellants not be allowed to gain the substantial advantages accruing to voluntary disclosure of work p ro d uc t to one adversary . . . while being able to maintain another advantage i nhe r e nt in protecting that same work product from other adversaries."); see also P a hl v. Robinson, 2009 W L 1097962, at *2 (M.D. Ga. April 22, 2009). In this case, to the extent that Dr. Simms and/or his attorney shared any i nfo r m a ti o n with Dr. W o o d s and/or his attorney, Dr. Simms's adversary in this c a s e , Dr. Simms has waived the work product privilege and cannot claim its p r o te c ti o n. As all of the subject emails for which Dr. Simms claims work product p r i v i l e g e were emails to or including Dr. W o o d s 's attorneys, the work product p ri v i l e g e , to the extent Dr. Simms would be entitled to it anyway, is waived. C . Whether the Information Sought By the Hospital Defendants is Relevant in Discovery F i na l l y , Dr. Simms will not produce the subject emails because he claims the y are not relevant. Federal Rule of Civil Procedure 26(b)(1) states that a party "m a y obtain discovery regarding any nonprivileged matter that is relevant to any p a r ty 's claim or defense . . . ." It is well established that the scope of discovery is b r o a d and ought to encompass "any matter that bears on, or that reasonably

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c o ul d lead to other matter[s] that could bear on, any issue that is or may be in the c a s e ." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2 3 8 9 (1978). Rule 26(b)(1) even allows a party to discover information that is no t admissible at trial "if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." To that end, "discovery should ordinarily b e allowed under the concept of relevancy unless it is clear that the information s o ug ht can have no possible bearing on the claims and defenses of the parties or o the r w i s e on the subject matter of the action." W ra ng e n v. Pennsylvania L um b e rm a n s Mut. Ins. Co., 593 F.Supp.2d 1273, 1278 (S.D. Fla. 2008). In this case, the Hospital Defendants seek the following information from D r. Simms: . . . All non-privileged documents or correspondence exchanged between [D r. Simms] (including [his] counsel) and Dr. W o o d (including his counsel) fro m 1996 forward. . . . All non-privileged documents referring to or relating to any c o m m uni c a ti o ns between [Dr. Simms] (including [his] counsel) and counsel fo r Dr. W o o d from 1996 forward. . . . All non-privileged documents referring to or relating to any information [D r. Simms] ha[s] provided to Dr. W o o d or his counsel in connection with or re l a ti ng to this litigation or the Hospital Defendants. (D o c . 432, Mov.'s Br. 3-4.) Under the liberal relevance standard of Rule 26(b)(1), thi s information seems "reasonably calculated to lead to the discovery of a d m i s s i b l e evidence." Furthermore, far from arguing that the emails withheld w o ul d not lead to the discovery of admissible evidence, Dr. Simms argues that the emails "are not likely to be a big factor for the Court or any jury." (Doc. 433, 7

P l .'s Resp. Br. 17.) Dr. Simms does not argue that the emails will not be a factor a t all. "[N]ot likely to be a big factor" is not a sufficient argument to support a c la im that information is not relevant for discovery. Therefore, the Court d e te r m i ne s that the information sought by the Hospital Defendants is relevant in d i s c o v e ry and that Dr. Simms must produce the information requested. III. Conclusion D r. Simms has not proved that he is entitled to the attorney work product p ri v i l e g e . Furthermore, to the extent Dr. Simms would be entitled to the attorney w o rk product privilege, he has waived that privilege with respect to the 173 e m a i l s that he sent to the Plaintiff. Finally, Dr. Simms has failed to show that the s ub j e c t emails are not relevant in discovery. For the foregoing reasons, the H o s p i ta l Defendants' Motion is granted. S O ORDERED, this the 17th day of September, 2009.

/s / Hugh Lawson HUGH LAWSON, JUDGE jch

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