Zavala v. City of Baton Rouge/Parish of East Baton Rouge et al

Filing 179

Notice and ORDER: IT IS ORDERED that Defendant CorrectHealth East Baton Rouge, LLC is GRANTED leave to file the mortality review and psychological autopsy reports related to the death of Louis Fano and referred to in its revised privilege logs UNDER SEAL 14 and must do so by no later than March 27, 2020. Signed by Magistrate Judge Erin Wilder-Doomes on 3/19/2020. (LT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MARIA OLGA ZAVALA

CIVIL ACTION NO.

VERSUS

17-656-JWD-EWD

CITY OF BATON ROUGE, ET AL
NOTICE AND ORDER
In her First Motion to Compel, Maria Olga Zavala (“Plaintiff”) seeks production of “any
document composed by Defendant CorrectHealth that reviews the reasons for, circumstances of,
and events leading up to Mr. Fano’s suicide on February 2, 2017” at the East Baton Rouge Parish
Prison (“EBRPP”), including the documents that should have been generated by operation of
CorrectHealth East Baton Rouge, LLC’s (“CorrectHealth”) “Procedure In the Event of An Inmate
Death” Policy (the “Inmate Death Policy”), and Suicide Prevention Program Policy (“Suicide
Prevention Policy”). 1 In particular, Plaintiff seeks the multidisciplinary mortality review and
psychological autopsy (collectively, “autopsy documents”) that CorrectHealth, as a provider of
medical services, prepared in connection with the suicide death of Plaintiff’s son, Louis Fano,
while he was incarcerated at the EBRPP.
CorrectHealth has refused to produce the requested documents, contending that they are
protected by the attorney-client and “self-critical analysis” privileges. 2 CorrectHealth’s privilege
logs regarding these withheld documents were previously found insufficient under Local Rule
26(c), and on November 4, 2019, CorrectHealth was permitted to supplement its insufficient
privilege logs with revised logs. 3 Plaintiff filed the revised logs and confirmed that the issues

1

R. Doc. 118-1, pp. 2-6 and see R. Doc. 118-3 (Requests for Production); R. Doc. 118-5 (Inmate Death Policy); R.
Doc. 130-3 (Suicide Prevention Policy).
2
R. Doc. 127.
3
R. Doc. 133.

raised in Plaintiff’s First Motion to Compel were not resolved. 4

However, CorrectHealth

maintains that the documents are privilege-protected. 5
Pursuant to Local Civil Rule 26(c):
A party withholding information claimed privileged or otherwise
protected must submit a privilege log that contains at least the
following information: name of the document, electronically stored
information, or tangible things; description of the document,
electronically stored information, or tangible thing, which
description must include each requisite element of the privilege
or protection asserted; date; author(s); recipient(s); and nature of
the privilege.
The revised privilege logs 6 sufficiently address each of the factors required by Local Rule
26(c) with respect to the assertion of the attorney-client privilege, 7 as the names of the documents,
descriptions, elements of the privilege, dates, authors, recipients are identified. However, it is not
clear from the log descriptions that everything contained in both documents is protected by the
attorney-client privilege. Specifically with respect to the psychological autopsy, the log indicates
that it was prepared by a non-attorney for multiple purposes, i.e., “Psychological autopsy report to
be submitted to CorrectHealth’s legal counsel for purposes of analyzing the circumstances
surrounding decedent’s medical care and death, for Quality Assurance and Morbidity & Mortality
Review and analysis of liability and defenses.” 8 Likewise, the log relating to the mortality review,
while prepared by counsel, was also prepared for multiple purposes: “Summary review by
CorrectHealth’s attorney for quality assurance purposes and analyzing the circumstances
surrounding decedent’s medical care and death, which includes an attorney assessment of any
potential liability.” 9 The references in the log descriptions to “quality assurance” and “analyzing

4

R. Doc. 140 and R. Doc. 141, p. 2
The undersigned has discussed production of these documents during a telephone conference and an in-person status
conference with the parties. R. Docs. 123 and 141.
6
R. Doc. 140-1, pp. 2-3.
7
Both privileges will be addressed in the undersigned’s Ruling on the pending Motions to Compel.
8
R. Doc. 140-1, p. 2.
9
R. Doc. 140-1, p. 3.
5

2

the circumstances surrounding decedent’s death” as the reasons underlying the preparation of the
autopsy documents comport with the respective Policy provisions that require preparation of these
documents. See the Inmate Death Policy, which provides that inmate deaths are reviewed “to
determine the appropriateness of clinical care; to ascertain whether changes to policies….are
warranted, and to identify issues that require further study;” which requires that a multidisciplinary
mortality review be conducted that will “include key clinical, administrative, and security
personnel” who will “evaluate administrative and clinical aspects surrounding the death;” and the
results of such review are discussed with “treating healthcare staff.” 10 See also the Suicide
Prevention Policy, which provides that “…appropriate medical and mental health personnel will
participate in the review of a suicide or attempted suicide at the request of the Facility
Administrator or the Warden.” 11 Additionally, any underlying factual information contained in
the documents would not be privileged. 12
CorrectHealth’s Policies requiring the preparation of the autopsy documents are silent as
to the involvement of legal counsel in the review or the preparation thereof, yet the logs state that
these documents were prepared, in part, for “an attorney assessment of any potential liability” and
were submitted to CorrectHealth counsel for an “analysis of liability and defense.” 13 Despite that
the underlying Policies themselves do not appear to require the involvement of CorrectHealth’s
legal counsel, the log descriptions sufficiently invoke the potential applicability of the attorneyclient privilege to at least some of the information contained in the autopsy documents. Thus, the
undersigned will conduct an in camera inspection of these two documents to determine if any or
all of the documents contain information that is protected by the attorney-client privilege.
10

R. Doc. 118-5.
R. Doc. 130-3.
12
Firefighters’ Ret. Sys. v. Citco Grp. Ltd., No. 13-373, 2018 WL 305604, at *5 (M.D. La. Jan. 5, 2018), citing U.S.
v. Louisiana, No. 11-470, 2015 WL 4619561, at * 5 (M.D. La. July 31, 2015) (Attorney client privilege does not
extend to materials assembled in the ordinary course of business, or which provide purely factual data.).
13
R. Docs. 140-1, pp. 2-3.
11

3

Accordingly,
IT IS ORDERED that Defendant CorrectHealth East Baton Rouge, LLC is GRANTED
leave to file the mortality review and psychological autopsy reports related to the death of Louis
Fano and referred to in its revised privilege logs UNDER SEAL 14 and must do so by no later
than March 27, 2020. The Court will review the documents in camera as set forth herein.
Signed in Baton Rouge, Louisiana, on March 19, 2020.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

14

See the instructions for filing a civil sealed document (prior leave granted) at http://www.lamd.uscourts.gov/cmecfinfo/sealed-events.
4