Frankfort Regional Medical Center v. Hon Phillip J. Shepherd Judge, Franklin Circuit Court ( 2016 )

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FRANKFORT REGIONAL MEDICAL CENTER APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2015-CA-000632-MR
FRANKLIN CIRCUIT COURT NO. 12-CI-00052
HONORABLE PHILLIP J. SHEPHERD,
JUDGE, FRANKLIN CIRCUIT COURT APPELLANT
AND
MARK WAINWRIGHT, M.D.; STEPHEN
HALL, M.D.; AND WOMEN'S CARE OF
THE BLUEGRASS, PLLC REAL PARTIES IN INTEREST
MEMORANDUM OPINION OF THE COURT
AFFIRMING
In this case, the appellant hospital's risk manager took notes recording
statements made by nurses and physicians during an investigation after a
difficult birth resulted in injury to the baby. There is evidence that the
interviews had both a business purpose and a litigation purpose, although
there is no proof that the nurses and physicians were aware of either purpose
when they made their statements. Some of the facts believed to be recorded in
the notes could not be recalled by the witnesses when they were later deposed
in the course of a malpractice action.
At issue is whether those notes and the statements they contain are
protected from discovery under the attorney-client privilege or the work-
product doctrine. The trial court concluded that they were not. The Court of
Appeals, upon a petition for a writ of prohibition, agreed and denied the
requested writ. This Court affirms the Court of Appeals because neither the
attorney-client privilege nor the work-product doctrine are applicable to the
notes and statements under the evidence available at this point in the
litigation.
I. Background
The underlying case involves a medical malpractice claim related to the
delivery and birth of Braylee Roberts to Courtney Wilhoite at Franklin Regional
Medical Center on May 4, 2011. The delivery did not go well, and the child
suffered brain injury and was later diagnosed with cerebral palsy.
Dr. Mark Wainwright was the obstetrician on call that day, but he was
not present when the delivery first took a negative turn. His partner, Dr.
Stephen Hall, was near the delivery room doing paperwork at that time. The
problems with the delivery were arguably exacerbated by an issue with the fetal
heart-rate monitor and by alleged miscommunication between nursing staff
and Dr. Hall. As to the communication problem, nurses claimed that they
asked Dr. Hall to assess Wilhoite because of concerns with the fetal heart-rate
readings, but that he did not respond to those requests. It is not clear,
however, whether the severity of the situation was fully explained to Dr. Hall.
Regardless, after Dr. Hall failed to look in on Wilhoite, Dr. Wainwright was
called in and he completed the delivery.
2
At some point after the delivery, the hospital's risk-management director,
Pam Melton, interviewed the nursing staff and the physicians involved in the
delivery. The factual circumstances surrounding these interviews, such as
what was said during them, have not been fully developed at the trial court.
What evidence we do have concerns when and why the interviews occurred,
which is heavily disputed. There is no question, however, that the interviews
resulted in a set of handwritten notes and a typed version of those notes
(rendered in narrative form, with additional material apparently beyond the
handwritten notes). We refer to this pair of documents collectively as the
"notes" in this opinion.
The physicians claim that Melton began her interviews immediately after
the birth as part of the hospital's standard business procedures in generating a
document titled Root Cause Analysis, which is submitted to the Joint
Commission' as part of an accreditation process. The hospital, however, claims
that Melton's interviews did not begin until she received correspondence from
the hospital's counsel directing her to undertake the interviews, and that the
interviews were conducted in anticipation of litigation.
1 According to its website, the Joint Commission is "[a]n independent, not-for-
profit organization ... [that] accredits and certifies nearly 21,000 health care
organizations and programs in the United States." The Joint Commission, About the
Joint Commission (last visited Jan. 7, 2016), at
http: / /www.jointcommission. org/ about_us/ about_the_ joint_commission_main. aspx.
3
In January 2012, Wilhoite and the child's father filed a malpractice claim
on behalf of their daughter against Drs. Wainwright and Hall, Women's Care of
the Bluegrass, PLLC, 2 and Frankfort Regional Medical Center.
During the ensuing discovery, the Root Cause Analysis was produced,
and at least one of the nurses and Pam Melton were deposed. In her deposition,
Melton, according to the hospital's brief, "discussed at length ... the interviews
she conducted, her recollection of events, the Root Cause Analysis, and an
alleged disagreement that occurred between Drs. Wainwright and Hall at the
time of Roberts' birth." Before long, the hospital settled with the plaintiffs and
the claim against it was dismissed, leaving only the plaintiffs' claim against the
physicians.
As discovery continued, the plaintiffs' counsel suggested that Dr. Hall's
failure to respond to the nurses' requests for help had been because he had an
argument or disagreement with Dr. Wainwright the day of the delivery. The
physicians asked the plaintiffs' counsel to identify any witnesses to this
disagreement. He apparently refused to do so but named a nurse who might
have knowledge of it. She was re-deposed and claimed that she had not
observed any disagreement but that she had heard a rumor of one having
occurred.
A short time later, Wilhoite's counsel advised the physicians' counsel
that he was aware of two other nurses who would testify about the claimed
2 The record is not clear, but Women's Care of the Bluegrass would appear to be
the practice of Drs. Wainwright and Hall. Unless otherwise noted, references to "the
physicians" as parties herein should be read to include Women's Care of the
Bluegrass.
4
disagreement. The physicians' brief claims that the plaintiffs' counsel refused
to identify these witnesses. Based on the e-mails included with the briefs,
however, it is apparent that the nurses who were claimed to have knowledge of
the dispute were identified explicitly. One of them was the one who had already
been deposed and re-deposed about the alleged dispute. The other was a nurse
named Bethany Abrams. Instead of the nurses' identity, it was the identity of
the person who named the nurses that plaintiffs' counsel refused to produce.
(He claimed that person's identity was "work product.")
The hospital's counsel eventually revealed in an e-mail to the physicians'
counsel that she (the hospital's counsel) was likely the source of the plaintiff's
information. According to the hospital's counsel, the only nurse she was aware
of who had knowledge of a supposed dispute was Abrams, though she was
unaware of the specifics. She identified two other nurses, one of whom she
claimed had no knowledge of the dispute and one of whom she claimed did not
recall a disagreement between the physicians.
The physicians became concerned that the supposed disagreement
between them would become an issue at trial. On February 2, 2015, they
served a subpoena duces tecum on the hospital seeking "any and all notes Pam
Melton generated during interviews conducted for purposes of creating the root
cause analysis of the events and circumstances surrounding the birth of
Braylee Roberts." The hospital moved to quash the subpoena, claiming the
notes were protected by both the attorney-client privilege and the work-product
doctrine.
5
The trial court overruled the motion to quash. As to the work-product
doctrine, the court concluded that the physicians had shown a substantial
need for the notes and that they could not obtain the information elsewhere
without undue hardship. As for the inability to obtain the information
elsewhere, the court noted that the nurses had been deposed and none had
testified about the alleged disagreement. The court also noted that the re-
deposed nurse stated that she had not observed a dispute and had only heard
about it from other staff, though she could not recall from whom. The court
concluded "that given the amount of time that has passed, it is impossible for
the [physicians] to obtain recollections from the nurses equivalent to those
obtained and documented by Ms. Melton in her notes," and that the physicians
"cannot obtain the information through further depositions." In reaching this
conclusion, the court emphasized "the inability of the witnesses to recall in
detail what happened the day Braylee [Roberts] was born," and also stated that
the "notes are the most reliable source of information regarding what the
nurses saw and reported."
The court also concluded that the notes were not prepared in
anticipation of litigation, as required by Duffy v. Wilson, 289 S.W.3d 555, 559
(Ky. 2009), because Melton "was legally required to create these documents
regardless of whether she was requested to do so by an attorney or whether she
planned to give them to an attorney to obtain legal advice." This conclusion was
based on the court's finding that the Root Cause Analysis was created in the
regular course of business, as required by 902 KAR 20:016, §§ 3(3)(A)(5)-(6),
6
and that the "notes were generated for the purpose of completing the Root
Cause Analysis."
As to the attorney-client privilege, the trial court again found that Melton
"was required by law to create these documents regardless of what any
attorney requested or whether she planned to use them to obtain legal advice."
The court also stated that it was "not convinced that Ms. Melton's notes ... were
solely the product of an investigation she was instructed to undertake by
counsel." The court emphasized that the hospital "had a legal duty to complete
a Root Cause Analysis report" and that the notes "were used to create that
report." The court also noted that there had been no evidence that counsel
requested the interviews before they were undertaken, and that it was more
likely that counsel became involved after they were done. The court concluded
its order by stating: "Based on a review of the record, ... the notes of Ms.
Melton were produced in the ordinary course of business, to facilitate the
completion of the Root Cause Analysis report ...."
The hospital filed a motion to reconsider along with a copy of a letter
from the hospital's counsel, dated May 9, 2011 (five days after the birth),
directing Melton to conduct an investigation of the birth and stating that the
investigation would be protected by the work-product doctrine and the
attorney-client privilege. Melton's own affidavit stated that although she did not
recall the precise date she began her interviews, she did not do so until after
receiving the letter.
The trial court denied the motion to reconsider and ordered the hospital
to produce the notes. The court specifically found "that the interviews
7
conducted by Ms. Melton were initiated prior to her receipt of the letter from
counsel." The court noted that some of the interviews appear to have been
dated after the letter from counsel was sent, but that the "record is silent as to
the exact date of any of the interviews" and that it "is clear from Ms. Melton's
deposition testimony that she began the interview process in the days
immediately following the incident, on May 4, 2011."
The court also pointed out that counsel's request for an investigation did
not change the fact that the investigation had already been undertaken and
was required by law (the administrative regulation). At best, the court
concluded, the investigation took on a "dual purpose," but that was insufficient
for the notes to fall under either the work-product doctrine or the attorney-
client privilege. The court also noted that "it is most likely that all of these
interviews would have been conducted in the same manner even if the letter
from counsel had never been sent." The court then noted that the attorney-
client privilege "is not designed to provide an ex post facto basis to cover-up
highly relevant factual information that was developed by the hospital staff for
its own internal review and quality control purposes, irrespective of potential
litigation concerns," and reiterated that the "record establishes that Ms.
Melton's internal investigation was initiated prior to the request of counsel."
The hospital then sought a writ of prohibition against the trial court's
order. The Court of Appeals agreed that the remedy of a writ was available
because, if the hospital's privilege claim was correct, there was no adequate
remedy by appeal and the breach of the privilege would be a miscarriage of
justice. But the court nevertheless declined to issue the writ, concluding that
8
the hospital had failed to show that Melton's notes were privileged or otherwise
protected. The court agreed with the circuit court that Melton used her notes to
generate the Root Cause Analysis and that Kentucky's administrative
regulations required hospitals to generate incident reports and other
documents. Based on these two conclusions, the court also agreed that the
notes were not used solely for obtaining legal advice. Thus, the court
concluded, the notes were not protected by the attorney-client privilege or the
work-product doctrine.
The hospital now appeals to this Court as a matter of right. See CR
76.36(7)(a) ("An appeal may be taken to the Supreme Court as a matter of right
from a judgment or final order in any proceeding originating in the Court of
Appeals."); Ky. Const. § 115 ("In all cases, civil and criminal, there shall be
•
allowed as a matter of right at least one appeal to another court ...."). It has not
asked this Court for intermediate relief under Civil Rule 76.36(4).
II. Analysis
Generally speaking, cases in which a writ of prohibition or mandamus is
sought proceed in two steps. Collins v. Braden, 384 S.W.3d 154, 158 (Ky.
2012). First, the court must look at whether such an extraordinary remedy is
even available, before deciding the merits of the claimed legal error. Id. Second,
if the court finds that the remedy is available, it may then look at the merits of
the claimed error. Id. If the trial court has erred or is about to err, the court
may issue the writ.
A. Remedy by way of a writ is available.
The first question "is whether the hospital has established that remedy
by way of an extraordinary writ is even available to it." Id. Under this approach,
there are essentially "two classes of writs, one addressing claims that the lower
court is proceeding without subject matter jurisdiction and one addressing
claims of mere legal error." Id. at 158. The hospital has not made a claim under
the first class, and thus we address only the second.
Under the second class, a writ may be granted—that is, the remedy is
available—if "there exists no adequate remedy by appeal or otherwise and great
injustice and irreparable injury will result if the petition is not granted."
Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). Of the two prerequisites for
this class of writ, the first is mandatory, and thus the hospital is required to
prove that it has no adequate remedy by appeal. Marcum v. Scorsone, 457
S.W.3d 710, 716 (Ky. 2015). The second prerequisite, however, is more flexible.
Though it usually requires proof of "something of a ruinous nature," it "may be
put aside in 'certain special cases." Grange Mut. Ins. Co. v. Trude, 151 S.W.3d
803, 808 (Ky. 2004) (quoting Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961)).
That limited sub-class of cases consists of those in which "a substantial
miscarriage of justice will result if the lower court is proceeding erroneously,
and correction of the error is necessary and appropriate in the interest of
orderly judicial administration." Id. (quoting Bender, 343 S.W.3d at 801). This
includes those in which a privilege will be breached. Id.
Indeed, this court has held that an alleged violation of a privilege satisfies
both writ prerequisites—that "of no adequate remedy by appeal, 'because
10
privileged information cannot be recalled once it has been disclosed,' and the
substitute requirement in 'special cases' that the administration of justice
would suffer." Collins, 384 S.W.3d at 158. For that reason, "remedy by a writ of
prohibition is available to a petitioner claiming the potential violation of a
privilege." Id.
This obviously extends to the claimed attorney-client privilege. Id.
Though the work-product doctrine does not provide an absolute privilege, a
breach of its protection has also been held to satisfy both elements of the
special-cases writ test. O'Connell v. Cowan, 332 S.W.3d 34, 39 (Ky. 2010).
But availability of the remedy is not the end of our inquiry. We must still
look at whether the petitioner, here the hospital, is entitled to the writ, which
requires an examination of the merits of the claim of legal error. Here, we must
examine whether the hospital has established "that the lower court has
improperly ordered a disclosure that would violate a privilege." Id.
B. Standard of Review
Before examining the merits of the hospital's privilege claim, however, we
first need to speak to a misunderstanding about the standard of review. As
noted above, the trial court made several findings of fact about the timing and
purpose of Pam Melton's interviews and the notes she took. Findings of fact are
traditionally reviewed for clear error, meaning they are to be sustained so long
as there is substantial evidence to support them.
We noted in Collins v. Braden, however, that whether a "privilege applies
is a mixed question of law and fact that is 'often reviewed de novo."' 384 S.W.3d
at 161 (quoting Lexington Public Library v. Clark, 90 S.W.3d 53, 62 (Ky. 2002)).
11
From this, we reasoned that "rather than deferring to the Court of Appeals [on
the question of privilege], ... this Court must independently examine whether
the hospital has shown at this time that the privilege applies." Id. The hospital
has suggested that this would allow us to independently reach factual
conclusions about the timing and purposes of the interviews different from
those of the trial court. In other words, the hospital suggests, we would review
the trial court's factual findings in this respect de novo. That is incorrect.
Although the ultimate question of the existence of a privilege is reviewed
de novo, that determination consists of, and can be broken down into,
constituent parts—questions of fact, questions of law, and mixed questions of
law and fact (i.e., application of the law to the facts)—with each having its own
standard of review. See Trude, 151 S.W.3d at 810 (distinguishing between the
various aspects of a decision). Any finding of fact by the trial court is entitled to
deference and will not be disturbed absent clear error. Id. Indeed, such
deference makes even more sense in a writ action than in an ordinary appeal
because we are proceeding on an "abbreviated record," which "magnifies the
chance of incorrect rulings." Cox v. Braden, 266 S.W.3d 792, 795 (Ky. 2008).
Moreover, we are not reviewing the trial court's order in the strictest
sense but, instead, are reviewing the Court of Appeals' action in granting or
denying the writ petition, which is an original action in that court. That review
has its own standards for the different aspects of the decision whether to grant
the writ, but they apply to the Court of Appeals' decision, not the trial court's.
Trude, 151 S.W.3d at 810. Because we are dealing with the second class of
writs, we would ordinarily give some deference to the Court of Appeals to the
12
extent it determined the factual question of great and irreparable harm to the
hospital. Id. But that is not really at issue in this case.
Instead, because we are addressing a question of evidentiary privilege
under the special-cases exception, we review the trial court's underlying factual
findings for clear error, while our review of whether the privilege applies, given
the facts found by the trial court, is de novo. Id. 3
C. The hospital has not established that the contents of the notes are
protected by the attorney-client privilege.
The hospital claims that the notes are protected by the attorney-client
privilege. This is the broader of the two claims, as the attorney-client privilege
is absolute, with very limited exceptions that do not apply here. 4
The attorney-client privilege, as codified in KRE 503, grants "a privilege
to refuse to disclose and to prevent any other person from disclosing a
confidential communication made for the purpose of facilitating the rendition of
professional legal services to the client." KRE 503(b). The privilege extends only
to confidential communications, that is, communications "not intended to be
disclosed to third persons other than those to whom disclosure is made in
furtherance of the rendition of professional legal services to the client or those
3 We have also noted repeatedly that whether to issue the writ is ultimately in
the sound discretion of the court to which the petition was submitted if that court
correctly found the Hoskins prerequisites had been shown. Trude, 151 S.W.3d at 810.
That decision is subject to review for abuse of discretion. Of course, the Court of
Appeals concluded in this case that the hospital had not shown the existence of the
privilege—in other words, that the trial court was not acting in error—and thus did not
issue the writ. By resolving the case in this manner, the Court of Appeals never
reached the stage where it could exercise its writ discretion. Thus, the abuse-of-
discretion standard for that decision is not at issue here.
Those exceptions are addressed in KRE 503(d), and include things like
4
communications made in furtherance of crime.
13
reasonably necessary for the transmission of the communication." KRE
503(a)(5).
The privilege, of course, protects such communications made by the
client to the lawyer. KRE 503(b)(1). It also encompasses communications made
by a "representative of the client" and those made to "a representative of the
lawyer," id., and extends even to communications between representatives of
the client, KRE 503(b)(4), and between representatives of the lawyer and the
lawyer, KRE 503(b)(2).
The client in this case was the hospital, but the communications claimed
to be privileged are those made by the physicians and nursing staff to the risk-
management director. Such communications can be covered by the privilege,
however, as the physicians and the nurses can be representatives of the client.
For the employees to be representatives of the client, and thus have their
statements covered by the privilege, their communications must have been
made "in the course and scope of [their] employment," about "the subject
matter of [their] employment," and "to effectuate legal representation of the
client." KRE 503(a)(2)(B). This distinguishes between employees who are
actually acting in a representative capacity (and thus whose statements are
cloaked by the privilege) and those who are "mere eyewitnesses," whose
statements are not protected. Collins, 384 S.W.3d at 162. In other words, an
employee representative must know that his statement is being given to obtain
legal advice, or it is not privileged under the attorney-client privilege as set
forth in the rule itself.
14
There is no question that the nurses and physicians interviewed made
their statements in the course of their employment and that their statements
were about the subject matter of their employment, because they were involved
in the patient's care and their statements related to that care. See St. Luke
Hosps., Inc. v. Kopowski, 160 S.W.3d 771, 776 (Ky. 2005) (applying privilege to
statements by nurses involved in patient's care to risk manager). There is,
however, some question whether their statements were made "to effectuate
legal representation for the client," as discussed below.
The applicability of the privilege in a case like this turns on two
questions. First, were "the statements ... made for the purpose of obtaining or
furthering the rendition of legal services to the client"? Collins, 384 S.W.3d at
161 (citing KRE 503(b)). Second, were the communications actually
confidential, "meaning they [we]re 'not intended to be disclosed to third persons
other than those to whom disclosure is made in furtherance of the rendition of
professional legal services to the client or those reasonably necessary for the
transmission of the communication"'? Id. (quoting KRE 503(a)(5)). These are
actually related inquiries, as they focus on the circumstances surrounding the
making of the statements and the purposes for which they were made. These
inquiries are intended to distinguish between statements made wholly or
primarily in the ordinary course of business or made by mere eyewitnesses,
and those made by persons acting as agents of the client for the purpose of
obtaining legal advice.
The trial court resolved the privilege question in this case by concluding
that the notes were not for the purpose of facilitating the rendition of legal
15
advice. The court reached this conclusion because it found that: (1) the
interviews were begun before communications were received from counsel, (2)
the interviews served a dual legal-business purpose, and (3) the notes were
used to make reports that were required to be made by law and thus were part
of the ordinary course of business of the hospital.
We accept the trial court's finding that Melton began her investigations
before the hospital's counsel contacted her. The record contains contradictory
evidence on this point and would thus support a conclusion either way. Melton
claimed that she did not act until receiving the lawyer's letter, yet the
physicians point to one of their own affidavits showing that at least one of the
interviews occurred before that letter was sent. Although the parties cite other
evidence, these items alone would have supported the trial court's decision
either way, and it was the trial court's job to resolve the discrepancy. The trial
court's finding need only be supported by substantial evidence to be affirmed.
The physician's affidavit was such evidence. Thus, we cannot say the trial
court's finding on this point was clearly erroneous.
But the timing of the communications is not dispositive of the privilege
question because the privilege does not depend on the statements' solicitation
by counsel. 5 As noted above, the privilege extends to communications made for
5 We held in Haney v. Yates, 40 S.W.3d 352, 354 (Ky. 2000), that a statement
by a taxi-cab driver to the taxi company's in-house safety department was not made in
furtherance of the rendition of legal services because no lawyer was yet involved in
that case. That opinion, however, does not apply to this case, because the statements
in question were not made by employees but by independent contractors. The question
concerned the application of KRE 503's definition of a confidential communication,
which extends to communications "not intended to be disclosed to third persons other
than those to whom disclosure is made in furtherance of the rendition of professional
16
the purpose of obtaining legal advice, and it extends to statements made by
representatives of the employer, both to the lawyer and his representatives and
to other representatives of the employer as well, when made for the purpose of
obtaining legal representation. It is easy to imagine that an employer could
begin collecting confidential statements from its employees in anticipation of
seeking legal advice before actually consulting with counsel. No doubt, the
practice is common. Such internal, confidential dialogue, if its primary purpose
is to obtain legal advice, can be protected by the privilege. Cf. Collins, 384
S.W.3d at 160 (stating privilege may apply to statements collected pursuant to
a hospital's internal policies, rather than directions of counsel, if they were
"made as part of a comprehensive program by which the hospital seeks to
determine, with the assistance of counsel, the best legal strategy to pursue in
regard to the tort that may have happened on the hospital's premises").
Requiring the privilege to turn on solicitation by counsel would render it
largely meaningless. The privilege is to be viewed from the perspective of the
client, not the lawyer. It exists to encourage the client to be open and frank
with counsel, and to thus facilitate the attorney-client relationship. That the
client speaks first should not render the statement unprivileged. Rather, the
legal services to the client or those reasonably necessary for the transmission of the
communication." KRE 503(a)(5). The case went on to address the insurer-insured
extension of the attorney-client privilege as applied to self-insured entities.
Additionally, Haney did not address the second way to make a communication
confidential: making it to someone "reasonably necessary for the transmission of the
communication." KRE 503(a)(5). An in-house risk manager who will liaise between the
client and the lawyer to be employed is the sort of person reasonably necessary for the
transmission of the communication to counsel.
17
purpose of the client in making the statement controls the applicability of the
privilege.
It is also important to remember that the representative of the client
essentially stands in the shoes of the client for purposes of the privilege's
application. If the statements in this case had been made directly by the client
to the lawyer, without the lawyer's solicitation, they would be protected as long
as they were for the purpose of soliciting legal advice and were confidential.
That they were instead made by a representative of the client to yet another
representative of the client or a representative of the lawyer does not extinguish
the privilege. See Lexington Public Library v. Clark, 90 S.W.3d-53, 59 (Ky. 2002)
("If the communication would have been privileged if made to the attorney, it is
no less privileged because it was made to [another employee] who forwarded it
to the attorney.")
Nevertheless, the trial court also concluded that the interviews were not
taken for the purpose of obtaining legal advice, as required by KRE 503,
because they were also used to prepare the Root Cause Analysis, which the
trial court concluded was required by law to be prepared. Indeed, the court
specifically found, at first, that the sole purpose of Melton's investigation was to
assist her in preparing the Root Cause Analysis, which was a business
purpose. After being presented with a letter from the hospital's counsel
directing Melton to investigate, the court concluded that the investigation had a
dual purpose, which still barred the privilege.
The physicians make much of the trial court's conclusion that Melton's
investigation was undertaken, at least in part, to facilitate the production of a
18
report purportedly required by law. The law in question is 902 KAR 20:016
§ 3(3), which regulates hospital operations and states that "administrative
reports shall be established, maintained and utilized as necessary to guide the
operation, measure of productivity and reflect the programs of the facility." Id.
§ 3(3)(a). Those reports "shall include ... [i]ncident investigation reports; and ...
[o]ther pertinent reports made in the regular course of business." Id.
§§ 3(3)(A)(5)-3(3)(A)(6). A plurality of this Court recently suggested that this
regulation extends to reports sent to accreditation entities, like the Joint
Commission. See Tibbs v. Bunnell, 448 S.W.3d 796, 804 (Ky. 2014). The trial
court anticipated this approach, concluding that the Root Cause Analysis was
required to be created under the regulations. The trial court, however, reasoned
further that if this report had to be created, then any and all interviews used in
preparing the report were also "required" and thus were not for the purpose of
obtaining legal advice.
It does not necessarily follow that the regulation required the interviews
and other investigative steps undertaken by Melton simply because they were
ultimately used to prepare the Root Cause Analysis. 6 It is theoretically possible
that the investigation might have been undertaken in a different manner if its
6 Tibbs's suggestion that accreditation reports are required by the regulation is
also questionable. As the hospital notes, the regulation qualifies the required reports
with "as necessary." 902 KAR 20:016 § 3(3)(a). But who is to determine what is
necessary in this context? If it is the hospital, then it is the hospital's decision that led
to the creation of the report, not the regulation. Moreover, Melton's' deposition
established that the Root Cause Analysis was not n an "incident report" as that phrase
is commonly used in hospital administration. It could then fit, at best, under the
catch-all provision for documents generated in the ordinary course of business. But
reporting to the Joint Commission is voluntary. That a hospital undertakes such
reporting as part of its business again suggests that it is the hospital that dictates
whether the report is generated, not a government regulation.
19
only purpose was to prepare the Root Cause Analysis. As the hospital points
out, the Root Cause Analysis focuses only on processes at the hospital and
does not seek to assign fault or blame to individuals; in fact, individual actors
are not even to be identified in that report, according to the Joint Commission's
own requirements. And we have noted: "Whether a particular communication is
privileged depends (absent waiver) not on what use was ultimately made of the
communication, but on the facts and circumstances under which the
communication was made." Lexington Public Library, 90 S.W.3d at 59.
Of course, the trial court found that it was "likely" that the investigation
would have proceeded in the same manner even if counsel had not asked for it.
And having reviewed the notes themselves, which have been filed under seal,
this Court agrees that it is unlikely that they would have been taken in a
substantially different form. The notes primarily name the various persons
interviewed and attribute various statements to them. Although the Root Cause
Analysis does not require that the various actors be named, it still requires
some reference to their identity, e.g., as an on-call physician, rather than one
who is merely present or a nurse. Given this necessity, we do not see how
Melton's notes would have been different if she had never been contacted by
the hospital's counsel.
We need not delve into the thorny questions raised by the application of
Tibbs and this regulation, however. Regardless of whether the interviews were
required to be undertaken, the fact is that their results were used to prepare
the Root Cause Analysis. Pam Melton admitted this fact, going so far as to state
that she kept a copy of her notes for this purpose. Even assuming that the
20
hospital was not required by law to prepare the Root Cause Analysis, the
simple fact is that it did prepare the document.
And the trial court found that preparation of this document was one of
the purposes behind Melton's investigation. This finding of fact is also
supported by substantial evidence—namely, Melton's own admission that she
prepared the Root Cause Analysis from her notes and kept a copy of them for
that purpose—and is not clearly erroneous.
Moreover, that is a business purpose. The hospital is correct that
preparing for litigation is not part of the ordinary course of business of a
hospital per se. Cf. Palmer v. Hoffman, 318 U.S. 109, 113 (1943) ("But the fact
that a company makes a business out of recording its employees' versions of
their accidents does not put those statements in the class of records made 'in
the regular course' of the business within the meaning of the Act."). Rather, the
hospital's business is operating a hospital. Although that no doubt includes,
primarily, treatment of patients and provision of medical care, it extends
beyond that to all of the day-to-day operations of such a facility. It would
extend, for example, to practices "aimed at reducing waste or hiring qualified
employees." Collins, 384 S.W.3d at 160.
That would not necessarily extend to activities such as investigations of
torts committed on the hospital's premises; such activities are often, instead,
"for the purpose of assessing the risk of and preparing for possible litigation."
Id. It is for that reason that such records are not included in the hearsay
exception for records of regularly conducted activities. See Palmer, 318 U.S. at
113 (1943); see also Timberlake Const. Co. v. U.S. Fidelity and Guar. Co., 71
21
F.3d 335, 342 (10th Cir. 1995) ("It is well-established that one who prepares a
document in anticipation of litigation is not acting in the regular course of
business."). Litigation, even if it is a common occurrence and has an effect on a
business, requires the party to step outside its ordinary business.
But incident investigations, at least under circumstances like those in
this case, can also have a business purpose. The ex post facto assessment of an
incident can have a business purpose where, for example, it is aimed at future
preparation and remedial measures, or at simply maintaining basic safety
standards. It can also be part of an accreditation process, as was the case here
where the Root Cause Analysis was submitted to the Joint Commission.
Accreditation may be required by law, or it may simply make the business
more attractive to customers (or, in this case, patients). In a hospital, where life
and death is literally on the line, constant self-examination and assessment of
risk is necessarily part of the daily operation of that business and thus has a
business purpose unrelated to litigation.
The question, then, is whether statements made for a dual purpose—
both for obtaining legal advice and for a business purpose, such as preparing
accreditation reports—are protected by the privilege. We need not go so far as
to say that a communication is protected by the privilege only if it had as its
sole purpose the obtaining of legal advice. But obtaining legal advice must be
the primary or predominant purpose of the confidential communication to fall
under the privilege.
This Court has not expressly laid out that rule before, though it has
suggested it. See Lexington Public Library, 90 S.W.3d at 59-60 ("Finally, ``[w]hen
22
the ultimate corporate decision is based on both a business policy and a legal
evaluation, the business aspects of the decision are not protected simply
because legal considerations are also involved.' (quoting Hardy v. New York
News, Inc., 114 F.R.D. 633, 643-44 (S.D.N.Y. 1987))). But it makes sense
because the attorney-client privilege "protects only those disclosures necessary
to obtain informed legal advice which might not have been made absent the
privilege." Fisher v. United States, 425 U.S. 391, 403 (1976) (emphasis added).
And it appears to be the general rule across the United States. See 1 Paul Rice
et al., Attorney-Client Privilege in the United States § 7:6 (2015-2016 ed.)
("Although courts occasionally state that the client's communications to the
attorney must be 'solely' for the purpose of seeking legal advice for the privilege
to apply, there is general agreement that the protection of the privilege applies
only if the primary or predominant purpose of the attorney-client consultation
is to seek legal advice or assistance." (footnotes omitted) (citing federal cases)).
Where the disclosures are made with dual purposes, and the business
purpose is equal or predominant, they cannot be covered by the privilege, at
least where they would have been made for the business purpose anyway. And
here, as the trial court found, the interviews would likely have been conducted
in the same manner regardless of counsel's directions to undertake them.
Conversely, when the predominant purpose is in furtherance of litigation, the
privilege does apply, providing the communication was confidential.
The physicians, of course, argue that because Melton's interviews and
notes had at least a dual purpose, just as the trial court held, the privilege does
not apply. But we are concerned about the interviews only to the extent that
23
they elicited confidential statements from possible representatives of the
hospital—the physicians and nurses. In this scenario, as an investigator,
Melton was simply a pass-through for the statements, which did not lose any
applicable privilege simply because they were not communicated to the
attorney directly. Instead, the statements are to be treated as though they were
made by the employees (who, if they are representatives of the client, are to be
treated as the client) directly to the lawyer. And despite the physicians' and
trial court's suggestions otherwise, Melton's subjective purpose in undertaking
the interviews does not control whether the privilege applies.
The relevant purpose for determining the privilege is the purpose of the
client on whose behalf the statements are made, here, the hospital. But the
employees' statements can only fall under the attorney-client privilege if they
were acting as representatives of the client in making the statements. Again, a
representative of the client stands in the shoes of the client, making the
statement essentially that of the client.
As mentioned briefly above, there are three requirements for an employee
to be considered a representative of the client. The first two of these—that the
communications were made in the course and scope of employment, and were
about the subject matter of the employment—are clearly shown here.
The difficult question concerns the third requirement: that the employee
made the "confidential communication ... [t]o effectuate legal representation for
the client." KRE 503(a)(2)(B). Implicit in this requirement is that, to some
extent, the employee's awareness of the purpose of the communication he or
she makes is relevant in determining the privilege. If the employee is ignorant
24
of the reason he or she is being interviewed, how can the statements be
reasonably understood to be confidential or made "to effectuate legal
representation"? They cannot.
Indeed, this understanding was part of the U.S. Supreme Court's
reasoning in extending the privilege to statements made by a mere employee
(rather than restricting it to members of a corporation's "control group") in
Upjohn Co. v. United States, 449 U.S. 383 (1981). As the Court noted, such
employees can be representatives of the client in making privileged statements
if they are "sufficiently aware that they were being questioned in order that the
corporation could obtain legal advice." Id. at 394 (emphasis added).
Although Upjohn is not binding on this Court, our KRE 503, which
extends the privilege to statements made by a representative of the client, is
modeled after the system laid out in that decision. See Lexington Public Library,
90 S.W.3d at 59 (noting KRE 503 embodies the more expansive federal
approach). And though we have not expressly held that the employee's
awareness of the purpose of the statements is relevant in determining whether
the privilege applies, we have declined to find a privilege where "the record
[wa]s silent as to ... whether, at the time the communications were made, the
persons who made them were aware that the communications were being
elicited to effectuate legal, as opposed to business, advice." Id. at 63. This
approach is consistent with that of other jurisdictions that have adopted the
25
representative-of-the-client model of the privilege over the control-group
approach. 7
We expressly hold today that statements by a corporate client's employee
can be privileged only if the employee is aware that his or her statements are
being elicited for the purpose of obtaining legal advice. This is consistent with
the very rationale behind the privilege—that is, to encourage clients (and their
representatives) to be frank with their lawyers in furtherance of the attorney-
client relationship. If an employee does not have reason to know that a
statement he or she makes is for the purpose of obtaining legal advice, the
purpose of the privilege is not served.
Thus, the subjective intent or purpose of the corporate client's or lawyer's
investigator (like Pam Melton) who questions another employee of the client,
does not, by itself, clothe the employee's responses in the privilege. At the same
time, the employee's subjective intent in making the statements, to the extent it
differs from the corporate client's, also does not control the applicability of the
privilege, and thus the privilege cannot be defeated by an employee later
claiming to have made the statements for a purpose other than obtaining legal
7 For examples, see Nat'l Farmers Union Prop. & Cas. Co. v. Dist. Court for City
and Cty. of Denver, 718 P.2d 1044, 1049 (Colo. 1986) (noting absence of employee's
awareness as one of several reasons for rejecting privilege claim); Broessel v. Triad
Guar. Ins. Corp., 238 F.R.D. 215, 218 (W.D. Ky. 2006) ("The attorney-client privilege
also extends to communications made by noncontrol group employees ...while the
employees were aware that they were being questioned in order that the corporation
could obtain legal advice"); United States ex rel. Hunt v. Merck-Medco Managed Care,
LLC, 340 F. Supp. 2d 554, 556-57 (E.D. Pa. 2004) (noting that "privilege applies when
...the employees were sufficiently aware that they were being questioned in order that
the corporation could obtain legal advice"); Bruce v. Christian, 113 F.R.D. 554, 560
(S.D.N.Y. 1986) ("Attorney-client privilege extends to any employee communicating on
matters within the scope of his employment when that employee is aware that he is
being questioned in confidence in order for his employer to obtain legal advice.").
26
advice. When the employee in question makes the statements toward legal
representation, he or she is acting as an agent of the employer. And it is the
purpose of the employer, as the client, that dictates the existence of the
privilege. However, the employer's purpose must be communicated to the
employee, or the employee must be aware of it in some other way (such as if it
is standard practice in the company to collect such statements to obtain legal
advice).
The trial court thus erred by focusing solely on Pam Melton's purpose in
undertaking the interviews and making her notes. That purpose may not have
been communicated to the nurses and physicians, though it would obviously
be relevant if it had, and they may not have otherwise been aware of it.
The pertinent question is whether the nurses and physicians were aware
of why Melton was obtaining the statements. Did she tell them that she was
questioning them in anticipation of litigation? Was it the standard practice in
the hospital to undertake such questioning for that purpose? Or did Melton
possibly tell the nurses and physicians that she was questioning them to
prepare the accreditation reports, either in whole or in part? We simply do not
know the answers to these questions.
It is very likely, given the nature of risk management's ordinary role in
the day-to-day functioning of a hospital, that the nurses were aware of why
they were being questioned. But that showing has not been made in this case.
As we have stated on many occasions, privileges of all stripes are to be strictly
construed. E.g., Collins, 384 S.W.3d at 159 ("The analysis in any privilege case
``begins with the almost universally accepted rule that testimonial privileges are
27
generally disfavored and should be strictly construed."' (quoting Stidham v.
Clark, 74 S.W.3d 719, 722-23 (Ky. 2002))). And "the burden is on the party
claiming the privilege to prove that it exists as to the communications so
claimed." Collins, 384 S.W.3d at 161 (quoting St. Luke Hosps., 160 S.W.3d at
775). That burden, therefore, falls to the hospital.
At least on the current record, we cannot conclude that the hospital has
met that burden to establish that the privilege applies. It has offered no
evidence that the nurses and physicians were aware of why Melton was
questioning them. In many hospital cases, there is no question on that subject.
But here, there is evidence that Melton herself had a mixed motive in
undertaking the interviews and that she used the interviews, at least after the
fact, for a business purpose. We know only that Melton, at least after receiving
the attorney letter, had a mixed purpose, but that does not resolve the
question.
We note that unlike in Collins, the hospital has at least filed the notes in
question under seal with this Court. But our review of those notes does not
disclose the purpose for which any of the statements recorded in them was
made.
"This is not to say that the privilege does not apply to any of the
statements." Collins, 384 S.W.3d at 164. It is possible that the statements
were, in fact, made primarily to assist the hospital in obtaining legal advice and
to prepare for a possible lawsuit, despite Melton's subjective purpose, and that
the nurses and physicians were aware of why they were being questioned by
Melton. The record simply does not show that at this time. But, as in Collins,
28
"the hospital still has the opportunity in the future to establish that the
privilege covers the documents or at least parts of them." Id. at 165. While we
do not issue a writ at this time, it may be that the hospital can show other
proof of whether the nurses and doctors knew their statements were being
taken for the purpose of litigation, thus making them confidential for the
purpose of securing legal representation. A timely motion to the trial court for
leave to produce proof consistent with this opinion would stay discovery of the
statements until the motion could be heard. Any further inquiry, however,
should focus on the hospital's purpose in having the statements taken and the
extent that the persons making the statements were aware of that purpose, not
on Pam Melton's subjective purpose.
D. The hospital has not established that the notes are covered by the
work-product doctrine.
The remaining question is whether Melton's notes should have been
shielded from discovery under the work-product doctrine. The work-product
protection stems from Civil Rule 26.02(3). It is not a pure privilege, in that it is
simply a bar on discovery and is far from absolute.
Applicability of the protection is determined by a two-part test:
First, the court must determine whether the document is work
product because it was prepared "in anticipation of litigation." ...
Second, if the document is work product, the court must
determine whether the requesting party has a "substantial need" of
the document and is unable to obtain the "substantial equivalent"
without "undue hardship."
Duffy v. Wilson, 289 S.W.3d 555, 559 (Ky. 2009). The trial court held that the
hospital had failed on both counts.
29
We have stated that the test for determining if the document was
prepared in anticipation of litigation is "whether, in light of the nature of the
document and the factual situation in the particular case, the document can
fairly be said to have been prepared or obtained because of the prospect of
litigation." Id. (quoting 8 Charles Alan Wright, Arthur R. Miller, 86 Richard L.
Marcus, Federal Practice and Procedure §2024 (2d ed.1994)). This is commonly
referred to as the "'because of standard." United States v. Roxworthy, 457 F.3d
590, 593 (6th Cir. 2006).
On this point, the trial court concluded that Melton's notes had not been
made in anticipation of litigation because they had been made as part of
producing the legally required Root Cause Analysis. We need not address the
validity of the trial court's conclusion in this regard—though, as noted above, it
is questionable whether the Root Cause Analysis is legally compelled by the
administrative regulations cited by the trial court—because it does not matter
whether the Root Cause Analysis was required by law or generated voluntarily.
The relevant facts are that the hospital did complete the Root Cause Analysis
and, as also found by the trial court, that Melton's notes were generated, at
least in part, to prepare that document. Here, the purpose of the interviewer is
relevant, and the trial court found that she had a dual purpose at the very
least.
That the notes were prepared for dual purposes, one of which was an
ordinary business purpose, is arguably dispositive of the work-product
question. The because-of approach "withholds protection from documents that
are prepared in the ordinary course of business or that would have been
30
created in essentially similar form irrespective of the litigation." United States v.
Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998). And as discussed above, Melton's
investigation and resulting notes were part of the hospital's ordinary business
because their purpose, even if only in part, was to help in preparing the Root
Cause Analysis for submission to the Joint Committee
Yet the hospital argues that a dual purpose does not by itself remove a
document from the work-product privilege. It cites federal cases stating, for
example, that "a document can be created for both use in the ordinary course
of business and in anticipation of litigation without losing its work-product
privilege." Roxworthy, 457 F.3d at 599. This Court does not disagree, but that
quote does not mean a document is protected simply because it has any
litigation purpose or use. As Roxworthy states in the same paragraph,
"documents do not lose their work product privilege merely because they were
created in order to assist with a business decision, unless the documents would
have been created in essentially similar form irrespective of the litigation." 457
F.3d at 598-99 (emphasis added) (internal quotation marks and brackets
omitted) (quoting Adlman, 134 F.3d at 1202).
And as the trial court also found, "it is most likely that all of these
interviews would have been conducted in the same manner even if the letter
from counsel had never been sent." This is not exactly the same as concluding
that the notes—that is, the documents that are claimed to be protected here—
would have been made in essentially similar form, but it is close enough. And,
again, having reviewed the notes themselves, which have been filed under seal,
31
this Court concludes that there is no reason to think that they would have
been taken in a different form simply because litigation was anticipated.
For that reason, this Court concludes that at this pOint the hospital has
not shown that the notes were prepared in anticipation of litigation, so they are
not covered by the work-product protection. Because they are not work
product, we need not address the exception to that doctrine, even though the
trial court did.
III. Conclusion
Because the hospital has so far failed to prove that the attorney-client
privilege or the work-product doctrine protected Melton's notes, this Court
cannot say that the trial court erred in ordering their production. For that
reason, the order of the Court of Appeals denying the writ of prohibition is
affirmed.
Minton, C.J.; Cunningham, Noble and Venters, JJ., concur. Keller, J.,
concurs in result only by separate opinion in which Hughes and Wright, JJ.,
join. Wright, J., concurs in result only by separate opinion in which Hughes,
J., joins.
KELLER, J., CONCURRING IN RESULT ONLY: I concur with the majority
that, at this point in time, the hospital has not established that the attorney-
client privilege protects Melton's notes from discovery. I write separately to
clarify what I believe should be the appropriate analysis with regard to the
attorney-client privilege.
Initially, I note that I agree with the majority that it is not clear that "the
interviews and other investigative steps undertaken [by Melton] were required
32
by [902 KAR 20:016 § 3(3)] simply because they were ultimately used to
prepare the Root Cause Analysis." Whether Melton undertook the investigation
pursuant to regulation or in the regular course of business is not dispositive. If
Melton began and completely conducted her investigation simply to fulfill a
regulatory requirement (whether required by law or by business practice) that
investigation would likely not fall under the protective umbrella of the attorney-
client privilege. However, if Melton began the investigation to fulfill a
regulatory requirement but then continued the investigation at the request of
counsel, at least part of the investigation might fall under that protective
umbrella. The fact that the investigation was begun for one purpose does not
mean that purpose "colors" the entirety of the investigation. Once Melton
received the May 9, 2011 letter, the focus, scope, and purpose of the
investigation could have changed. However, as the majority notes, there simply
is not enough information in the record to make this determination.
I also agree that it is certainly possible that the investigation had a dual
purpose. Melton admitted that she conducted this investigation, in part, to
prepare the Root Cause Analysis. She also stated that she did not begin her
investigation until after she received the May 9, 2011 letter. Therefore, the
record supports the circuit court's finding of a dual purpose.
The circuit court found that the investigation undertaken by Melton
would have been the same whether she undertook the investigation to fulfill a
regulatory requirement or at the request of counsel. The majority agrees;
however, I disagree. Before the circuit court can compare one investigation to
another, there must be some evidence regarding how each investigation is
33
undertaken. Here the only evidence is how Melton undertook this
investigation. There is nothing in this record for the court to use as a
comparison; therefore, there is no evidence to support the circuit court's
conclusion that Melton's investigation would have proceeded along the same
path regardless of her purpose.
Furthermore, I agree with the majority that, when determining if the
attorney-client privilege has attached to a statement, the trial court must
examine why the statement was made, i.e. was it made for the purpose of
facilitating the rendition of professional legal services to the client." KRE
503(b). However, I disagree with the majority's conclusion that the purpose of
the interviewer should not be considered. The trial court must examine both
the purpose of the interviewer and the purpose of the interviewee. This is
particularly true in cases such as this, where the interview is not being
conducted by the attorney or a non-client representative of the attorney, but by
an individual who is also the client. As the circuit court and the majority
recognize, the interview process may have been different depending on whether
Melton was conducting it in order to complete the Root Cause Analysis or at
the request of counsel. Therefore, Melton's purpose for conducting the
interviews, while perhaps not controlling, is not wholly irrelevant.
Finally, I agree with the majority that "the hospital still has the
opportunity in the future to establish that the privilege covers the documents
or at least parts of them." Collins, 384 S.W.3d at 164. The circuit court should
refrain from enforcing its disclosure order until the parties have had the
opportunity to develop proof regarding the preceding. In re-assessing the
34
applicability of the attorney-client privilege, the circuit court must keep in mind
the following: simply because an investigation begins as an unprivileged
activity does not mean that it continues to be unprivileged throughout its
existence; and when determining whether the privilege attaches, the purpose of
both the investigator and the client/interviewee must be established and
considered. Furthermore, the circuit court must have some evidence regarding
the differences and/or similarities between a root cause analysis investigation
and an attorney requested investigation, before it can determine what type of
investigation Melton undertook. In other words, there must be some objective
evidence setting forth what distinguishes a privileged investigation from an
unprivileged one.
Hughes and Wright, JJ., join.
WRIGHT,'J., CONCURRING IN RESULT ONLY: While I fully concur on
all other grounds, I concur in result only as to the majority's attorney-client
privilege analysis. Here, the hospital is the entity seeking legal advice. The
hospital hired the attorney in order to obtain legal advice, and the interviewee
and interviewer were both employees of the hospital acting within the scope of
their employment. The motives of these parties was to do their jobs. Therefore,
that motive is immaterial. The motive of the hospital (as shown through the
actions of its Board of Directors, executives, employees, and applicable policies
and procedures) should control the attorney-client privilege analysis.
Hughes, J., joins.
35
COUNSEL FOR APPELLANT:
Bryan Todd Thompson
Millicent Ann Tanner
Eleanor M. B. Davis
Chad Owens Propst
Thompson Miller 86 Simpson, PLC
734 West Main Street, Suite 400
Louisville, Kentucky 40202
APPELLANT:
Honorable Phillip James Shepherd
Circuit Judge, Franklin Circuit Court
Franklin County Judicial Center
222 St. Clair Street
Frankfort, Kentucky 40601
COUNSEL FOR REAL PARTIES IN INTEREST:
Clayton Lee Robinson
Jonathan David Weber
Kimberly Goetz Desimone
Robinson 86 Havens, PSC
101 Prosperous Place, Suite 190
Lexington, Kentucky 40509
36