United States of America et al v. Bozeman Health Deaconess Hospital et al

Filing 262

ORDER granting 159 Motion for Determination of Privilege Re: Claw-Back as stated in this Order. (See Order for details.) Signed by Judge Sam E Haddon on 4/5/2018. (NOS)

FILED
APR O5 2018
IN THE UNITED STATES DISTRICT COURT

Clerk, U.S. District Court
Distrtct Of Montana
Helena

FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
UNITED STATES OF AMERICA EX
REL. FRANK M. REMBERT AND
MICHAEL R. PARADISE,

No. CV 15-80-BU-SEH

Plaintiffs,

ORDER
vs.
BOZEMAN HEAL TH DEACONESS
HOSPITAL D/B/ A BOZEMAN
HEALTH, and
DEACONESS-INTERCITY
IMAGING, LLC D/B/A ADVANCED
MEDICAL IMAGING,
Defendant.

Background
Pending before the Court is Relators' Rule 26(b )(S)(B) Motion for

Determination of Privilege Re: Claw-Back, 1 filed on January 29, 2018.
Submissions of Clawed-Back Documents for In Camera Review and
Determination of Privilege were filed on January 29, 2018, February 21, 2018, and
March 1, 2018. 2
Discussion

"The attorney-client privilege exists where: '(l) [] legal advice of any kind
is sought (2) from a professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in confidence (5) by the client,
(6) are at his instance permanently protected (7) from disclosure by himself or by
the legal adviser, (8) unless the protection be waived."" 3 "The party asserting the
attorney-client privilege has the burden of establishing the relationship and
privileged nature of the communication." 4 Moreover, "[a] party claiming the
privilege must identify specific communications and the grounds supporting the
privilege as to each piece of evidence over which privilege is asserted. Blanket

'Doc. 159.
2

Docs. 161, 188, and 202.

3

United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011) (quoting United States v.
Graf, 610 F. 3d 1148, 1156 (9th Cir. 2010)).
4

Richey, 632 F.3d at 566 (citing United States v. Bauer, 132 F.3d 504, 507 (9th Cir.

1997)).
2

assertions are 'extremely disfavored. "' 5 "The attorney-client privilege may extend
to communications with third parties who have been engaged to assist the attorney
in providing legal advice. If the advice sought is not legal advice, but, for
example, accounting advice from an accountant, then the privilege does not
exist. " 6
Attorney work product protection applies to "documents and tangible things
that are prepared in anticipation of litigation or for trial by or for another party or
its representative." 7 Documents are protected that "would not have been created in
substantially similar form but for the prospect of litigation. " 8
Here, the documents submitted to the Court on January 29, 2018, 9 February
21, 2018, 10 and March 1, 20 I 8, 11 have been reviewed by the Court and have been
determined not to be protected from discovery in this case by attorney-client
5

United Stales v. Martin, 278 F.3d 988, 1000 (9th Cir. 2002) ( citation omitted) (quoting
Clarke v. Am. Commerce Nat'/ Bank, 974 F.2d 127, 129 (9th Cir. 1992)).
6

Richey, 632 F.3d at 566 (citing Weil v. lnv.llndicators, Research & Mgmt., Inc., 647
F.2d 18, 24 (9th Cir. 1981)).
7

Fed. R. Civ. P. 26(b)(3).

'Richey, 632 F.3d at 568 (quoting In re Grand Jury Subpoena (Mark Torj7Torf Envtl.
Mgmt.), 357 F.3d 900, 908 (9th Cir. 2004)).
9

Doc. 161.

0

Doc. 188.

11

Doc. 202.

'

3

privilege or principles of attorney work-product protection. Defendants have failed
to establish entitlement to protection from discovery under either attorney-client
privilege or attorney work-product protection.
ORDERED:

I.

Relators' Rule 26(6)(5)(B) Motion for Determination of Privilege Re:

Claw-Back 12 is GRANTED, as stated in this Order.
2.

All documents submitted under seal in:
a.

Relators' Submission of Clawed-Back Documents
for In Camera Review and Determination of
Privilege, 13

b.

Relators' Supplemental Submission ofClawedBack Documents for In Camera Review and
Determination of Privilege, 14 and

c.

Relators' Second Supplemental Submission of
Clawed-Back Documents for In Camera Review
and Determination of Privilege Re: Relators' First
Rule 26(6)(5)(6) Motion, 15

are: (1) not protected from discovery by attorney-client privilege or attorney workproduct protection, and (2) are subject to discovery, and, if appropriate, to use for
12

Doc. 159.

JJ

Doc. 161.

14

Doc. 188.

15

Doc. 202.

4

admission as evidence at trial of issues in the case.
DATED this

st:iay of April, 2018.

-LWtU/411~

~HADDON

United States District Judge

5

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