IHC Health Services Inc. v. ELAP Services
Filing
95
MEMORANDUM DECISION AND ORDER granting in part and denying in part 70 Intermountains Short Form Discovery Motion Concerning ELAPs Refusal to Produce its Communications with Intermountain Patients. Signed by Magistrate Judge Evelyn J. Furse on 7/12/2019. (jds)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART
INTERMOUNTAIN’S SHORT FORM
DISCOVERY MOTION CONCERNING
ELAP’S REFUSAL TO PRODUCE ITS
COMMUNICATIONS WITH
INTERMOUNTAIN PATIENTS
(ECF NO. 70)
IHC HEALTH SERVICES, INC., a
non-profit Utah corporation,
Plaintiff,
vs.
ELAP SERVICES, LLC, a limited-liability
company,
Civil No. 2:17-cv-01245-JNP-EJF
Defendant.
Judge Jill N. Parrish
Magistrate Judge Evelyn J. Furse
Before the Court is Intermountain’s Short Form Discovery Motion Concerning
ELAP’s Refusal to Produce its Communications with Intermountain Patients (“Motion”)
(ECF No. 70). On June 27, 2019, the Court held oral argument on the Motion. Having
considered the parties’ briefing and argument, the Court GRANTS IN PART AND
DENIES IN PART the Motion as set forth below.
Intermountain asks the Court to make a sweeping ruling finding that that ELAP
cannot assert the attorney-client privilege under Utah R. Evid. 504(c), that the requested
communications do not fall within the four categories of privileged communications set
forth in Utah R. Evid. 504(b)(2)(a)-(d), and that the work product doctrine does not
permit ELAP to withhold the requested information. (ECF No. 70.) The Court does not
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have enough information or sufficient briefing to make such a ruling and declines to do
so at this time.
However, based on the parties’ briefing and arguments, the Court finds that
certain of the communications involving ELAP and patients are not privileged. ELAP
has not demonstrated that communications involving ELAP and patients made prior to
the time an attorney was engaged to represent the patient are protected by the
attorney-client privilege or work product doctrine. See Allred v. Saunders, 2014 UT 43,
¶ 25, 342 P.3d 204 (stating that the “burden [is] on the party asserting a privilege to
establish that the material sought is protected from discovery”).
“The attorney-client privilege protects information given by a client to an attorney
that is ‘necessary to obtain informed legal advice—which might not have been made
absent the privilege.’ ” S. Utah Wilderness All. v. Automated Geographic Reference
Ctr., 2008 UT 88, ¶ 33, 200 P.3d 643 (quoting Gold Standard, Inc. v. Am. Barrick Res.
Corp. (“Gold Standard II”), 801 P.2d 909, 911 (Utah 1990)). Utah Rule of Evidence 504,
which codifies the attorney-client privilege, defines “communications” subject to the
privilege as including “advice, direction, or guidance” given by a lawyer “in the course of
providing legal services,” and “disclosures of the client and the client’s representative” to
a lawyer related to the “client’s legal services.” Utah R. Evid. 504(a)(7). Such
communications are privileged only if “confidential,” meaning they are “not intended to
be disclosed to third persons other than those to whom disclosure is in furtherance of
rendition of legal services to the client or to those reasonably necessary for the
transmission of the communication.” Utah R. Evid. 504(a)(8). “However, the mere
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existence of an attorney-client relationship ‘does not ipso facto make all
communications between them confidential.’ ” Gold Standard II, 801 P.2d at 911
(quoting Anderson v. Thomas, 159 P.2d 142, 147 (Utah 1945)). For example,
communications relating to the creation of an attorney-client relationship are generally
not privileged or otherwise protected from disclosure. See Gold Standard II, 801 P.2d
at 910–12 (finding that that a retainer agreement “describing the creation of an attorneyclient relationship” and not “contain[ing] any legal strategies, theories, or conclusions” is
not protected by the attorney-client privilege or work product doctrine). Thus, “to rely on
the attorney-client privilege, a party must establish: (1) an attorney-client relationship,
(2) the transfer of confidential information, and (3) the purpose of the transfer was to
obtain legal advice.” S. Utah Wilderness, 2008 UT 88, ¶ 33, 200 P.3d 643.
ELAP argues that the communications it had with patients for whom it ultimately
obtained legal counsel are privileged because ELAP is the patients’ representative and
the communications were made to facilitate the rendition of legal services. (ECF No. 79
at 2–3.) ELAP claims that under Moler v. CW Management Corporation, 2008 UT 46,
190 P.3d 1250, communications between a client and a client representative, made
even before the clients retained counsel, are privileged. (ECF No. 79 at 2–3.) While
the Moler decision left open the possibility that such communications could be
privileged, the Utah Supreme Court did not find that the communications in that case
were privileged and remanded the case to the district court to determine in the first
instance whether the third party at issue was even a “representative” within the meaning
of Rule 504. Moler, 2008 UT, ¶¶ 4, 14, 15, 20, 21. Here, ELAP has not demonstrated
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that the patients at issue designated it as their “representative” within the meaning of
Rule 504. ELAP’s bare assertion that it is the patients’ representative and retained
counsel for them is not sufficient to show that it is a “client’s representative” under Rule
504. Moreover, ELAP has not shown that any of the communications it had with
patients prior to retaining an attorney contain legal strategy, advice, or any other
information that the attorney-client privilege would protect. The fact that patients
complained to ELAP about balance billing or may have asked ELAP for an attorney to
represent them is not a request for legal advice. Nor are the fact of attorney
representation or the basic contours of such representation protected by the attorneyclient privilege.
Documents are protected by the work product doctrine only if they are prepared
in anticipation of litigation. Gold Standard II, 801 P.2d at 910. To satisfy this
requirement, the primary purpose of the document must be to assist in pending or
impending litigation, which means that it was “either created for use in pending or
impending litigation or intended to generate ideas for use in such litigation.” Id. at 910–
11. “The mere possibility that litigation may occur or even ‘the mere fact that litigation
does eventually ensue’ is insufficient to cloak materials with the mantle of work product
protection.” Gold Standard, Inc. v. Am. Barrick Res. Corp., 805 P.2d 164, 170 (Utah
1990) (quoting Binks Mfg. Co. v. Nat’l Presto Indus., Inc., 709 F.2d 1109, 1118 (7th Cir.
1983)). ELAP has not shown that Intermountain threatened or initiated litigation against
any of the patients prior to the time ELAP purportedly obtained counsel for them, and
Intermountain maintains that this has not occurred. (See ECF No. 70-1 at 9 (stating that
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“Intermountain has never initiated litigation against any ELAP-affiliated Patients,” and
ELAP has not “provided evidence that Intermountain has ‘threatened’ litigation against
such patients”). Therefore, ELAP has not demonstrated that communications between
itself and patients are protected from disclosure by the work product doctrine.
ELAP indicated in its Opposition that during the meet and confer process it
offered “to withdraw its privilege objection as to communications involving only ELAP
and a patient if Intermountain would limit its requests so as not to seek otherwise
privileged communications involving ELAP, the patient, and the lawyer retained by
ELAP to represent the patient.” (ECF No. 79 at 2.) The Court finds that it is these
documents—which ELAP has offered to produce anyway—that are not protected by the
attorney-client privilege or work product doctrine. Further, to the extent ELAP continues
to claim that documents involving ELAP, patients, and attorneys retained by ELAP are
protected from disclosure by the attorney-client privilege, ELAP needs to produce preattorney and attorney engagement documents to show that it acted as the patient’s
representative within the meaning of Utah Rule of Evidence 504. As pertinent here,
Utah Rule of Evidence 504(a)(6)(A) defines a “client’s representative” as “a person or
entity authorized by the client to . . . obtain legal services for or on behalf of the client.”
Thus, to establish that it acted as a patient’s representative, ELAP must show that each
patient authorized ELAP to obtain legal services on its behalf. Moreover, the work
product doctrine only protects materials created “by or for [a] party or by or for that
party’s representative.” See Gold Standard II, 801 P.2d at 910.
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With respect to the remaining communications involving lawyers, the Court
rejects Intermountain’s argument that ELAP must produce responsive documents
because it is not among the five categories of persons under Utah R. Evid. 504(c) and
therefore cannot assert the privilege. A party representative is not identified in Utah
Rule of Evidence 504(c) as a party that can invoke the privilege, and ELAP agrees that
the patient holds the privilege. See ECF No. 70-6 (“The privilege belongs to the
patient.”). ELAP claims, however, it “has no reason to believe any patient wishes to
waive the privilege, so ELAP is not waiving it.” (Id.) Neither party’s position appears
correct. While the parties do not dispute that the client—in this case, the patient—must
invoke the privilege under Utah Rule of Evidence 504(c), the Court does not believe that
this fact compels ELAP to produce potentially privileged documents. While a party
representative may not claim the attorney-client privilege, it cannot waive it either. See
Krahenbuhl v. The Cottle Firm, 2018 UT App 138, ¶ 13, 427 P.3d 1216 (“Only the client
can waive the attorney-client privilege . . .”). However, ELAP cannot assert the privilege
for each patient based on its belief that no patient wishes to waive the attorney-client
privilege. Unless ELAP can produce authority to the contrary, if it wishes to withhold
such documents from production on the basis of attorney-client privilege, ELAP must
obtain authorization from each patient for whom it withholds documents on attorneyclient privilege grounds indicating that he or she wishes to invoke the attorney-client
privilege as to the documents at issue.
With the benefit of the foregoing ruling, the Court believes that the most
expedient way to proceed with respect to this issue is for ELAP to produce the
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documents required under this Order and for ELAP to reassess the basis for its privilege
claims with respect to documents involving patients, ELAP, and lawyers. ELAP must
produce documents for each patient establishing its role as a client representative.
Once it has done that, ELAP should consider whether it must obtain authorization from
each patient to invoke the attorney-client privilege, and do so if necessary. Further,
ELAP should supplement its privilege log(s). The privilege log(s) should specifically
identify all documents related to this issue so that Intermountain, and potentially the
Court, can understand which documents are at issue. The revised privilege log(s)
should also assert each of the privileges and protections claimed1 and detail the bases
for the privilege claim(s) as to each document.
After reviewing the additional documents and revised privilege log(s), if
Intermountain still finds ELAP’s privilege claims deficient, Intermountain may raise that
issue with ELAP through the usual meet and confer process required under DuCivR 371. If that process proves unsuccessful, Intermountain may file a motion not to exceed
ten (10) pages with respect to this issue. The motion should identify the specific
documents at issue on the privilege log(s) and succinctly explain why the asserted
privileges and protections do not apply. ELAP may file a ten (10) page response within
fourteen (14) days and Intermountain may file a five (5) page reply within seven (7) days
thereafter.
1
The privilege logs provided to the Court at the July 10, 2019 hearing on different
motions identify three privileges: (1) “AC” or “Attorney Client,” (2) “WP” or “Work
Product[t],” and (3) “AL” or “Anticipation of Litigation.” The Court is not aware of
“Anticipation of Litigation” privilege separate from the work product doctrine.
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Finally, ELAP’s response to Interrogatory No. 10, also at issue in Intermountain’s
Motion, is deficient. The Interrogatory states as follows:
Identify all ELAP Plans and/or Members who have communicated with
ELAP or a Plan administrator (including any Third-Party Administrator)
concerning balance billing by Intermountain. If you elect to respond to this
interrogatory pursuant to Federal Rule of Civil Procedure 33(d), include all
responsive Communications.
(ECF No. 70-3 at 12.) After interposing various objections, ELAP provided the following
response: “Subject to and without waiving any objection, Attachment 4 contains a list of
all balance bills received by Members from Intermountain.” (Id. at 12–13.) Pursuant to
Federal Rule of Civil Procedure 33(d), a party may answer an interrogatory by
“specifying the records that must be reviewed, in sufficient detail to enable the
interrogating party to locate and identify them as readily as the responding party could”
or “giving the interrogating party a reasonable opportunity to examine” the records. Fed
R. Civ. P. 33(d).
ELAP’s production of a list identifying all members receiving balance bills from
Intermountain is not responsive to the Interrogatory, which asks ELAP to identify all
ELAP plans or members who have communicated with ELAP or a plan administrator
concerning balance billing by Intermountain. The fact that an ELAP member received a
balance bill from Intermountain does not mean that the member communicated with
ELAP or a third party administrator concerning balance billing by Intermountain. ELAP
must provide a supplemental response to this Interrogatory that responds directly to the
question asked. The proposed order that Intermountain sent to the Court provided a
temporal limitation to this Interrogatory, seeking responsive information from January 1,
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2011, which the Court finds appropriate. If ELAP chooses to refer to business records
to answer the Interrogatory, it may do so in accordance with Rule 33(d). Further, ELAP
must produce documents, to the extent required under this Order, responsive to
Request for Production No. 15 which seeks the production of documents concerning the
communications identified in Interrogatory No. 10. Intermountain’s proposed order also
provided the same temporal limitation for this Request, which again the Court finds
appropriate.
ORDER
1.
The Court GRANTS IN PART AND DENIES IN PART Intermountain’s
Motion (ECF No. 70).
2.
The Court ORDERS ELAP to produce “communications involving only
ELAP and a patient,” (ECF No. 79 at 2) that are responsive to the document requests at
issue (Requests for Production Nos. 15,2 16, 30 and 37). ELAP must produce the
documents by August 9, 2019.
3.
The Court ORDERS ELAP to provide a supplemental response to
Interrogatory No. 10 by August 9, 2019. The Interrogatory is modified to seek
information from January 1, 2011.
4.
As to documents involving ELAP, patients, and lawyers, ELAP must
produce documents to demonstrate its role as a client representative if it intends to
withhold those documents on attorney-client privilege grounds. Further, ELAP must
consider whether it needs to obtain authorization from each patient to invoke the
2
As noted above, this Request is modified to seek documents from January 1, 2011.
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attorney-client privilege as to documents involving ELAP, patients, and lawyers, and
obtain such authorizations if necessary. Any completed authorizations should be
provided to Intermountain.
5.
The Court ORDERS ELAP to provide revised privilege log(s) to
Intermountain. The privilege log(s) should specifically identify all documents related to
this issue (i.e., communications involving ELAP, patients, and lawyers that it is
withholding on privilege grounds) so that Intermountain, and potentially the Court, can
understand which documents are at issue. The revised privilege log(s) should also
assert each of the privileges and protections claimed and detail the bases for the
privilege claim(s) as to each document. The revised privilege log(s) must be provided
as soon as practicable but no later than August 30, 2019.
6.
After reviewing the additional documents and revised privilege log(s), if
Intermountain still finds ELAP’s privilege claims deficient, Intermountain may raise that
issue with ELAP through the usual meet and confer process required under DuCivR 371. If that process proves unsuccessful, Intermountain may file a motion not to exceed
ten (10) pages with respect to this issue. The motion should identify the specific
documents at issue on the privilege log(s) and succinctly explain why the asserted
privileges and protections do not apply. ELAP may file a ten (10) page response within
fourteen (14) days and Intermountain may file a five (5) page reply within seven (7) days
thereafter.
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DATED this 12th day of July, 2019.
BY THE COURT:
Magistrate Judge Evelyn J. Furse
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