Vered v. Tooele Hospital Corporation

2018 UT App 15THE UTAH COURT OF APPEALS
ELDAD VERED,
Appellee,
v.
TOOELE HOSPITAL CORPORATION, EXECUTIVE MEDICAL COMMITTEE
OF THE MEDICAL STAFF OF THE MOUNTAIN WEST MEDICAL CENTER,
TRACY SCHAFFER, AND YVONNE NIELSON,
Appellants.
Opinion
No. 20150866-CA
Filed January 25, 2018
Third District Court, Tooele Department
The Honorable Robert W. Adkins
No. 130301902
Curtis J. Drake, Mark O. Morris, and Paul W.
Shakespear, Attorneys for Appellants
Gary R. Guelker and Janet I. Jenson, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 In this interlocutory appeal, we address questions
regarding the invocation of the care-review privilege and the
mechanics of a privilege log in establishing the applicability of
that privilege. Twice the district court rejected Defendants’
assertion that they had established that the care-review privilege
applied. Defendants ask this court to give them a third bite at the
apple by remanding to the district court so that they may
reassert their twice-rejected arguments regarding the care-
review privilege. We decline to do so and affirm the district
court’s decision.
Vered v. Tooele Hospital Corporation
BACKGROUND
¶2 Dr. Eldad Vered filed suit against Defendants, alleging
breach of contract, defamation, and interference with economic
relations. In February 2014, Dr. Vered served Defendants with
his first set of discovery requests. In April, Defendants
responded, setting off a string of discovery disputes between the
parties. On September 3 of that year, Dr. Vered filed with the
district court a statement of discovery issues and asked for the
court’s intervention. He specifically requested that the court
order Defendants “to produce all documents and things which
defendants agreed to produce in their responses to Plaintiff’s
First Set of Requests for Production of Documents,” “to answer
all of the Interrogatories,” and “to respond to all of the Requests
for Production of Documents.”
¶3 On September 11, Defendants filed an opposition to Dr.
Vered’s statement of discovery issues. They argued that Dr.
Vered’s motion was moot because “Defendants are already, and
have been in the process of finalizing a privilege log and
supplemental responses with the discoverable information and
documents sought” by Dr. Vered. They also noted that Dr.
Vered’s counsel had failed to “meet and confer in person or by
telephone before filing his Statement, as [then] required by Rule
4-502(2)(A)” of the Utah Rules of Judicial Administration, 1 but
did not argue that the motion should be denied on that basis.
¶4 The district court set the matter for hearing on October 6.
Before the hearing, but after filing their opposition, Defendants
provided Dr. Vered with a privilege log that identified 119
1. This rule has since been moved to the Utah Rules of Civil
Procedure and requires that, when filing a statement of
discovery issues, a party include a certification that it “has in
good faith conferred or attempted to confer with the other
affected parties in person or by telephone in an effort to resolve
the dispute without court action.” See Utah R. Civ. P. 37(a)(2)(B).
20150866-CA 2 2018 UT App 15Vered v. Tooele Hospital Corporation
documents purportedly protected by the care-review privilege.
At the hearing, the parties and the court discussed not only the
statement of discovery issues but also the privilege log.
Defendants did not argue that Dr. Vered had failed to comply
with the meet-and-confer requirement.
¶5 Defendants indicated that there was not “necessarily a
dispute as to” some of the issues raised by Dr. Vered, but they
disagreed as to the application of the care-review privilege. Dr.
Vered argued that Defendants, as the “party asserting the
privilege[,] must provide [an] . . . ‘adequate evidentiary basis to
show that the documents were prepared specifically to be
submitted for review purposes.’” (Quoting Wilson v. IHC Hosps.,
Inc., 2012 UT 43, ¶ 115, 289 P.3d 369.) He also claimed that
Wilson stood for the proposition that a party asserting the
privilege must “submit an affidavit or provide some witness
testimony to show that the documents that [it is] claiming as a
privilege really fall within that privilege,” which Defendants
failed to do. Ultimately, Dr. Vered asked the court to compel the
production of all the documents listed on the privilege log
because Defendants had failed to identify an evidentiary basis
for claiming privilege and thus had not “met their burden of
establishing” that the care-review privilege applied.
¶6 Defendants countered that they “read the privilege a little
. . . differently” in that they believed “[i]t’s a very broad
privilege.” They also offered that they had “no problem
providing an affidavit or a witness to lay the foundation for the
applicable privilege, but this process did not allow for [them] to
provide an affidavit.”
¶7 The district court concluded that “there ha[d] not been an
adequate evidentiary basis to show that the documents were
specifically prepared to be submitted for the review purposes”
and ordered “that all of the documents be produced.”
Defendants asked for clarification: “As far as the production of
the care review materials, if we provide the evidentiary basis or
[are] you saying that that door is shut[?]” The district court
20150866-CA 3 2018 UT App 15Vered v. Tooele Hospital Corporation
responded, “That door is shut at this point,” and asked Dr.
Vered’s attorney to prepare a written order.
¶8 When Dr. Vered’s attorney submitted the proposed
written order, Defendants objected and filed a motion for
reconsideration. They requested that the district court reconsider
its order requiring production of the documents for which
Defendants had suggested the care-review privilege applied.
Defendants argued that “the Court did not have the proper
information before it at the hearing” because Dr. Vered had
presented a “surprise argument,” leaving Defendants
unprepared to “provide[] the proper information before the
Hearing.” Defendants reasoned that if they had been prepared to
provide the district court with the “proper information,” the
court “then would likely have followed the steps established by
other Utah courts when presented with an issue of whether a
party’s care review documents are privileged.” (Citing Wilson,
2012 UT 43; Cannon v. Salt Lake Reg’l Med. Center, Inc., 2005 UT
App 352, 121 P.3d 74.) Defendants also argued that they had
been unprepared to provide an affidavit supporting their
invocations of the care-review privilege because Dr. Vered had
been “lying in wait” until the hearing to take the “secret
position” that Defendants had waived their claims of privilege. 2
¶9 As exhibits to their filings, Defendants attached two
documents of particular note. The first was a letter written by
Defendants’ attorney in July 2014, in which he promised that
“for those documents that Defendants withhold[] because of
privilege or work product, we will provide you with an
appropriate privilege log.” This letter was sent three months
before Defendants provided their privilege log to Dr. Vered. The
2. In their motion to reconsider, Defendants again noted that Dr.
Vered had failed to “satisfy[] Rule 4-502’s requirement of a meet
and confer conversation” before filing his statement of discovery
issues, but they did not argue that Dr. Vered’s failure to meet
and confer was a basis for reconsidering the court’s order.
20150866-CA 4 2018 UT App 15Vered v. Tooele Hospital Corporation
second exhibit was an affidavit from the “Quality Director for
Mountain West Medical Center.” In that affidavit, the Quality
Director outlined the types of documents contained in Dr.
Vered’s credentialing and quality files—documents for which
Defendants had claimed the care-review privilege applied—and
represented that the documents in the files “are and were
gathered and submitted to Mountain West Medical Center and
its in-house committees specifically for review purposes . . . , for
the purpose of reducing morbidity and mortality, and for the
evaluation and improvement of health care.” The Quality
Director further represented that any “individuals who reviewed
this information did so for care review, peer review, and
improvement purposes.”
¶10 Around the time Defendants filed their motion for
reconsideration, the Utah Supreme Court issued its decision in
Allred v. Saunders, 2014 UT 43, 342 P.3d 204. That decision
addressed the care-review privilege; clarified that the privilege
protects “information compiled or created during the . . . care-
review process from both discovery and receipt into evidence”;
addressed amendments to rule 26 of the Utah Rules of Civil
Procedure, along with their impact on the care-review privilege;
and explained that
in camera review is not required in all cases.
Rather, parties seeking to withhold arguably
privileged material from discovery must create a
privilege log identifying each document or item
withheld from production and provide sufficient
foundational information to allow the court and
opposing parties to evaluate the validity of the
claimed privilege.
Id. ¶¶ 9, 12, 28.
¶11 The parties appeared for a hearing on Defendants’ motion
to reconsider in August 2015. Defendants reiterated that Dr.
Vered did not challenge the adequacy of the evidentiary basis
20150866-CA 5 2018 UT App 15Vered v. Tooele Hospital Corporation
supporting the claim of privilege in his statement of discovery
issues but raised it for the first time at the October 2014 hearing.
They also argued that Allred constituted a “change in the law”
that warranted reconsideration of the court’s order. Specifically,
Defendants argued that under Allred, “there is no requirement of
an affidavit” and that the parties were “only at stage one. We
have provided a privilege log to the plaintiff. The opposing
party has not raised objections to the . . . privileges asserted in
that log,” and Defendants expressed that they did not think “the
situation [was] ripe at this time for the Court to undertake an in-
camera review.” Instead, Defendants asked the court for “a
couple of weeks to go back and supplement this privilege log.”
¶12 Dr. Vered responded that an objection to the privilege log
could not have been made before the October 2014 hearing
because the log had not been received until just days before the
hearing. He also argued that the problem with the privilege log
“wasn’t that it wasn’t accompanied by an affidavit per se. It was
really that there was nothing on the log that provided any
foundation showing why the privilege applied.” In his view,
“The case law was clear that you have to provide an adequate
evidentiary basis to show that the documents were prepared
specifically to be submitted for review purposes.”
¶13 Defendants’ attorney admitted several times throughout
the August hearing that the original privilege log was deficient. 3
He acknowledged that he did not know whether the privilege
log “satisfie[d] all the foundational requirements” set forth in
Allred, and that they could “do a better job.” The court ultimately
3. Defendants’ privilege log contained vague descriptions, such
as “Letter re: incomplete proctoring card”; “Email chain re:
patient issues”; or “OB Staff Meeting Agenda.” These
descriptions miss the point of the log, which is to supply
sufficient information for both opposing counsel and potentially
a court to determine whether a privilege applies, rather than
simply to list possible privileged documents.
20150866-CA 6 2018 UT App 15Vered v. Tooele Hospital Corporation
explained that it “could not conclude and still today cannot
conclude that [the documents] are privileged,” and, because
Defendants had not “show[n] that the documents are
privileged,” the court “affirm[ed] its prior oral ruling.”
¶14 Defendants now appeal.
ISSUES AND STANDARDS OF REVIEW
¶15 Defendants raise three issues for our review. They first
ask us to decide whether the district court erroneously
determined that Defendants waived their claims of privilege by
not providing a supporting affidavit with their privilege log to
lay the evidentiary foundation for the privilege. Next,
Defendants maintain the district court abused its discretion
when it ordered Defendants to produce the requested
documents, without first reviewing the documents in camera.
Finally, Defendants assert the district court should have required
Dr. Vered to engage in additional discovery dispute procedures
before ordering Defendants to provide the requested documents.
¶16 “We generally review a trial court’s discovery rulings for
an abuse of discretion,” Bluemel v. Freestone, 2009 UT App 16, ¶ 4,
202 P.3d 304, including a district court’s “determination of
whether in camera review is necessary,” Allred v. Saunders, 2014
UT 43, ¶ 24, 342 P.3d 204. But where Defendants’ arguments rest
on an assertion that the district court misinterpreted the law, we
review those issues for correctness. See Conley v. Department of
Health, 2012 UT App 274, ¶ 7, 287 P.3d 452.
ANALYSIS
¶17 Throughout the discovery process below and the briefs on
appeal, the parties disagree as to what Utah case law actually
requires when it comes to asserting the care-review privilege.
We thus begin with a discussion of the privilege and how it is
20150866-CA 7 2018 UT App 15Vered v. Tooele Hospital Corporation
properly invoked. We then turn to each of Defendants’
arguments on appeal.
¶18 In Benson ex rel. Benson v. I.H.C. Hospitals, Inc., our
supreme court discussed some of the differences between the
care-review and peer-review privileges. 866 P.2d 537, 539 (Utah
1993). The care-review privilege, set forth in section 26-25-1(3) of
the Utah Code, authorizes, without the risk of liability, certain
private medical information to be provided to select entities for
the purposes of “(a) study and advancing medical research, with
the purpose of reducing the incidence of disease, morbidity, or
mortality; or (b) the evaluation and improvement of hospital and
health care rendered by hospitals, health facilities, or health care
providers.” Utah Code Ann. § 26-25-1(3) (LexisNexis 2012); see
also Benson, 866 P.2d at 539. The purpose of this privilege
is to improve medical care by allowing health-care
personnel to reduce “morbidity or mortality” and
to provide information to evaluate and improve
“hospital and health care.” Without the privilege,
personnel might be reluctant to give such
information, and the accuracy of the information
and the effectiveness of the studies would diminish
greatly.
Benson, 866 P.2d at 539.
¶19 On the other hand, the peer-review privilege protects
reviews undertaken “for the purpose of evaluating any health
care provider regarding (a) professional ethics, (b) medical
competence, (c) moral turpitude, or (d) substance abuse.” Id.
(quoting Utah Code Ann. § 58-12-43(7) (Michie Supp. 1992). This
privilege now appears in section 58-13-5 of the Utah Code. See
Utah Code Ann. § 58-13-5(7) (LexisNexis 2016).
¶20 Defendants argue that the district court erred in its
application of both of these privileges. Despite the fact that the
district court’s order mentioned the peer-review privilege,
20150866-CA 8 2018 UT App 15Vered v. Tooele Hospital Corporation
Defendants never asserted the peer-review privilege in their
privilege log as a reason for withholding documents. It is
therefore questionable whether any issue involving the peer-
review privilege was preserved for appeal. See Wolferts v.
Wolferts, 2013 UT App 235, ¶ 19, 315 P.3d 448 (“An issue is
preserved for appeal when it has been presented to the district
court in such a way that the court has an opportunity to rule on
that issue.”). This is not to say that the peer-review privilege was
never mentioned below. The district court’s order found “that
Defendants have failed to provide an adequate privilege log
identifying those documents which Defendants claim are
protected by the care and/or peer review privilege.” (Emphasis
added.) This seems to be a symptom of the broader problem in
this case, which is a failure by all parties to distinguish between
these two privileges when making their arguments.
¶21 Regardless, our review requires us to decide whether
Defendants’ privilege log adequately demonstrated that a given
privilege applied, as that is the only place in the record where
the documents at issue were identified as privileged. On that list
of 119 documents, under a heading of “Privilege Type,”
Defendants asserted the care-review privilege 118 times. 4
Defendants never asserted the peer-review privilege. Thus, even
if the district court’s passing mention of the peer-review
privilege somehow preserved Defendants’ argument, we would
nevertheless affirm. Where Defendants never claimed that the
peer-review privilege applied to a particular document, they
necessarily never set forth an adequate evidentiary basis to
support a claim of that privilege.
¶22 We therefore focus this opinion primarily on whether the
district court appropriately interpreted and applied the care-
4. The other document included on the log was one for which
Defendants asserted the attorney-client privilege, and that
privilege is not at issue in this appeal.
20150866-CA 9 2018 UT App 15Vered v. Tooele Hospital Corporation
review privilege. In Wilson v. IHC Hospitals, Inc., the Utah
Supreme Court reiterated that the care-review privilege
protects only those documents prepared specifically
to be submitted for review purposes. It does not
extend to documents that might or could be used in
the review process . . . . [A]ny broader reading of
the rule would permit hospitals to argue that all
medical documents prepared by hospital personnel
are created to improve health care rendered by a
hospital and are protected by the privilege.
2012 UT 43, ¶ 114, 289 P.3d 369 (citations and internal quotation
marks omitted). With this framework in mind, and as we discuss
in greater detail below, we conclude that Defendants’ privilege
log did not adequately demonstrate that the documents they
sought to withhold were prepared specifically for care-review
purposes. See infra ¶¶ 26–29.
I. Alleged Finding of Waiver
¶23 Defendants first ask us to decide whether the district
court erred by finding that the care-review privilege is waivable.
Before we can reach that question, we must first ask another—
whether the district court ever made such a finding. We
conclude that it did not. In its order denying Defendants’ motion
for reconsideration, the district court found only that
“Defendants have failed to provide an adequate privilege log
identifying those documents which Defendants claim are
protected.” This was the basis for denying Defendants’ motion
and ordering Defendants to produce the requested documents.
The district court never addressed whether the claims of
privilege had been waived; it concluded that Defendants had not
met their burden of demonstrating that the privilege applied. 5
5. The relevant section of Defendants’ brief includes no record
citations to support a claim that the district court ever made a
(continued…)
20150866-CA 10 2018 UT App 15Vered v. Tooele Hospital Corporation
Accordingly, the district court concluded that Defendants were
“precluded from asserting the [care-review] privilege” because
they had “failed to provide a sufficient evidentiary basis that
would allow the court to determine whether the documents
being withheld are subject to” the privilege. 6 In other words, we
reject Defendants’ attempt to characterize the district court’s
ruling as one premised on a waiver of privilege.
¶24 Instead, we turn to Defendants’ secondary contention that
the district court’s ruling was in error because it rested on the
flawed conclusion that Defendants were required to provide an
affidavit in support of their claims of privilege. Although there
was discussion at the hearing regarding a potential obligation
for Defendants to provide an affidavit, the court did not base its
decision on Defendants’ failure to do so. Rather, the court’s
decision was broadly based on Defendants’ failure to provide an
adequate evidentiary basis for deeming the documents
privileged. Moreover, to the extent that Dr. Vered understood
Wilson to require a party to submit an affidavit, that
misunderstanding did not extend to the court’s analysis in
reaching its decision. We have no difficultly deciding that any
misunderstanding about the law on the part of Dr. Vered did not
affect the district court’s ruling.
¶25 At the October 2014 hearing, Dr. Vered argued that to
assert the care-review privilege, “you need to submit an affidavit
or provide some witness testimony to show that the documents
that you’re claiming as a privilege really fall within that
(…continued)
finding of waiver. However, we acknowledge that a party who
fails to properly assert an applicable privilege functionally
waives that privilege.
6. While seemingly harsh, this is the net effect of a failure to
demonstrate that the privilege applies—a document that might
otherwise be protected by statute becomes discoverable.
20150866-CA 11 2018 UT App 15Vered v. Tooele Hospital Corporation
privilege.” On appeal, Defendants argue that “[t]he trial court
agreed with Dr. Vered,” finding that “by failing to provide an
affidavit, Defendants had somehow waived their right to assert
the statutory care-review . . . privilege[] and ordered Defendants
to produce the disputed documents.” But the page of the record
cited for this supposed agreement contains no support for it.
Instead, the district court found “that there has not been an
adequate evidentiary basis to show that the documents were
specifically prepared to be submitted for . . . review purposes.”
The court made no mention of an affidavit; it simply found that,
as presented, Defendants had not laid the foundation necessary
for asserting the care-review privilege. And we cannot say that
this finding was in error.
¶26 In Cannon v. Salt Lake Regional Medical Center, Inc., 2005 UT
App 352, 121 P.3d 74, we considered whether a hospital had set
forth an adequate evidentiary basis to assert the care-review
privilege and prevent discovery of incident reports. Id. ¶ 11. The
hospital had asserted the privilege by submitting the affidavit of
its Risk Manager in the Quality Assurance Department. Id. ¶ 12.
The affidavit asserted, among other things, that the incident
reports were “created specifically for submission to the Quality
Assurance Department” and were “not created or used for any
purpose other than to evaluate and improve health care at the
Hospital.” Id. We concluded that the affidavit was insufficient to
establish that the incident reports were privileged under the care
review privilege and were not subject to discovery. Id. ¶ 19. We
did, however, determine “that the affidavit establishe[d]
something of a prima facie showing that the privilege applie[d]”
and remanded for the district court “to review the incident
reports in camera to determine whether the privilege indeed
applie[d] to these documents.” Id. ¶ 21.
¶27 Unlike the affidavit in Cannon, the privilege log in the
present case did not even suggest “the possibility that the
privilege applies.” Cf. id. ¶¶ 20–21 (explaining that although the
affidavit in that case spoke “in conclusory terms, carefully
tracking the key elements of the statutory language . . . rather
20150866-CA 12 2018 UT App 15Vered v. Tooele Hospital Corporation
than providing more descriptive, detailed, and helpful
information about the reports for which the privilege is
asserted,” it nevertheless “suggest[ed] the possibility that the
privilege applies”). Instead, the privilege log contains entirely
unhelpful descriptions such as “Letter re: incomplete proctoring
card”; “Email chain re: patient issues”; or “OB Staff Meeting
Agenda.” There is nothing in these descriptions that even hints
at why the privilege might apply.
¶28 In short, Defendants are correct that they were not
required to provide an affidavit. Cf. Allred v. Saunders, 2014 UT
43, ¶ 26, 342 P.3d 204 (explaining that “our rules contemplate
that a party seeking to withhold relevant, but arguably
privileged, material from discovery will prepare and produce a
privilege log sufficient to allow the opposing party to evaluate
the claim of privilege”). But because our rules begin with a
presumption in favor of discovery, Defendants bore the burden
of providing a sufficient evidentiary basis for their assertion of
the care-review privilege. See id. ¶ 25. This evidentiary basis
could come in the form of a privilege log, see id. ¶ 26, an
affidavit, 7 or some other way so long as the party asserting the
privilege provides “sufficient foundational information for each
withheld document or item to allow an individualized
assessment as to the applicability of the claimed privilege,” id.
¶29 Defendants’ privilege log lacked this foundational
information. Because the district court never explicitly required
Defendants to provide an affidavit, and because our own review
of the privilege log reveals that Defendants failed to meet their
burden, we reject Defendants’ argument that the district court
erroneously imposed an affidavit requirement upon them. Said
7. Normally, because of the volume of records involved in
complicated discovery disputes, we would expect to see a
privilege log for efficiency reasons. The point is that while Allred
does not require an affidavit, we also do not read Allred as
prohibiting an affidavit. See infra ¶¶ 28–29.
20150866-CA 13 2018 UT App 15Vered v. Tooele Hospital Corporation
another way, we see no indication that the district court agreed
with Dr. Vered’s assertion that an affidavit was required, but
even if it had, that error was harmless. When applying the
proper standard, articulated in Allred, it is apparent that
Defendants’ privilege log was insufficient due to its lack of
particularized detail. Specifically, Allred clarified that “the party
asserting a privilege” bears the burden “to establish that the
material sought is protected from discovery.” Id. ¶ 25. And
Defendants simply did not meet that burden.
II. Clarification of Rule 26 Requirements
¶30 We take a brief detour from reviewing Defendants’ claims
on appeal to clarify the requirements of rule 26 of the Utah Rules
of Civil Procedure, especially as that rule relates to assertions of
the care-review privilege. Rule 26 provides:
If a party withholds discoverable information by
claiming that it is privileged . . . the party shall
make the claim expressly and shall describe the
nature of the documents, communications, or
things not produced in a manner that, without
revealing the information itself, will enable other
parties to evaluate the claim.
Utah R. Civ. P. 26(b)(8)(A).
¶31 Despite some suggestion in the briefs to the contrary, this
requirement to specifically identify and describe withheld
documents when a privilege is claimed is not new. 8 And the use
8. Although we cite to the most current version of Rule 26, we
note that the amendments are not new. In 2002, subsection (b)(5)
was added, which is substantively identical to the current
subsection (b)(8)(A):
When a party withholds information otherwise
discoverable under these rules by claiming that it is
(continued…)
20150866-CA 14 2018 UT App 15Vered v. Tooele Hospital Corporation
of a privilege log to comply with this requirement did not
originate with Allred. Indeed, the Allred court acknowledged,
“Parties routinely provide privilege logs when asserting that
particular documents are privileged from discovery.” Allred,
2014 UT 43, ¶ 26. And while Allred considered whether the
privilege log provided in that case was sufficient, it made no
pronouncement regarding what form a privilege log must take.
Rather, what is required is a description of “the nature of the
documents, communications, or things not produced in a
manner that, without revealing the information itself, will enable
other parties to evaluate the claim.” Utah R. Civ. P. 26(b)(8)(A).
What form a privilege log takes is immaterial, so long as the
required information is, in fact, provided. See Allred, 2014 UT 43,
¶ 28 (requiring that “parties seeking to withhold arguably
privileged material from discovery must create a privilege log
identifying each document or item withheld from production”
but making no mention of what form a privilege log must take
(emphasis added)).
III. Failure to Review Documents In Camera
¶32 Beyond their argument that the district court erroneously
expected them to submit an affidavit, Defendants raise the
related issue of the district court’s refusal to review the
purportedly privileged documents in camera before ordering
their production. This issue is easily disposed of. The Utah
Supreme Court in Allred v. Saunders, clarified
(…continued)
privileged . . . the party shall make the claim
expressly and shall describe the nature of the
documents, communications, or things not
produced or disclosed in a manner that, without
revealing information itself privileged or protected,
will enable other parties to assess the applicability
of the privilege or protection.
Utah R. Civ. P. 26(b)(5) (2003).
20150866-CA 15 2018 UT App 15Vered v. Tooele Hospital Corporation
that in camera review is not required in all cases.
Rather, parties seeking to withhold arguably
privileged material from discovery must create a
privilege log identifying each document or item
withheld from production and provide sufficient
foundational information to allow the court and
opposing parties to evaluate the validity of the
claimed privilege. The district court may, in its
sound discretion, then undertake in camera review
of any questionably-withheld material.
2014 UT 43, ¶ 28 (emphasis added). Not only did Allred make
clear that in camera review is not always required, but it also
made clear that the decision to conduct such a review is a matter
of the district court’s discretion. See id. Additionally, the court’s
use of the word “then” indicates that any in camera review
would take place after a party claiming the privilege provides a
privilege log or the equivalent, complete with “sufficient
foundational information.” See id.
¶33 We have already determined that Defendants failed to
provide a sufficient privilege log or alternative foundational
information. Thus, according to Allred, the triggering event for
an in camera review never took place in this case. Furthermore,
because Defendants did not provide adequate information for
their assertion of privilege, we cannot conclude that the district
court abused “its sound discretion” by not conducting an in
camera review. See id. We therefore reject Defendants’ argument
that the district court’s declination of an in camera review
warrants reversal.
IV. Discovery Dispute Requirements
¶34 Defendants’ final contention is that the district court
“erred for the additional and independent reason that the
privilege and waiver issues were never ripe” because it “failed to
require Dr. Vered to follow the discovery dispute resolution
procedures set forth in Utah Rule of Civil Procedure 37 and
20150866-CA 16 2018 UT App 15Vered v. Tooele Hospital Corporation
supporting case law.” Specifically, Defendants argue that “Dr.
Vered never raised any objection to Defendants’ privilege log”
and that “he did not even attempt to confer with Defendants ‘in
person or by telephone,’ as required by Rule 37.”
¶35 To begin, we reiterate that district courts are given “broad
latitude” in “handling discovery matters.” Thurston v. Workers
Comp. Fund, 2003 UT App 438, ¶ 25, 83 P.3d 391. And we reject
outright Defendants’ characterization that Dr. Vered never
objected to the privilege log. Every time the privilege log was
addressed in front of the district court, Dr. Vered lodged
objections to it. Any complaint regarding the timing of those
objections is unpersuasive, as Defendants controlled that timing.
They did not provide a privilege log when they first responded
to Dr. Vered’s discovery requests. They did not provide a
privilege log when they objected to Dr. Vered’s statement of
discovery issues. They finally provided a privilege log four days
before the October 2014 hearing, and at that hearing Dr. Vered
objected.
¶36 As to Defendants’ argument that Dr. Vered was required
to meet and confer, we cannot say that under the specific
circumstances of this case, the district court abused its discretion
by not enforcing the meet-and-confer requirement. 9 First,
Defendants failed to comply with established standards in
asserting the care-review privilege. Second, Defendants never
tied their concerns regarding the lack of a meet and confer to
their contention that the motion to reconsider should be granted.
9. We do not mean to imply that the meet-and-confer
requirement is unimportant. We encourage parties to resolve
their discovery disputes without court intervention, and district
courts have every right to deny relief to a party who has failed to
certify that it has first conferred or attempted to confer with the
opposing party about the discovery dispute as required by rule
37(a)(2)(B) of the Utah Rules of Civil Procedure.
20150866-CA 17 2018 UT App 15Vered v. Tooele Hospital Corporation
¶37 We are cognizant that the practice among many lawyers
in Utah is to—from time to time—engage in a months-long game
of shadowboxing, essentially revealing the bare minimum in a
privilege log or other discovery response and asking, “Is this
good enough yet?” But a privilege log should be good enough in
the first instance. The standard is clear. Lawyers know what is
required. The game of back-and-forth can end badly if a judge
determines, as it did in this instance, that the log is insufficient;
there is no requirement that a district court provide unlimited
bites at the apple, and lawyers should not expect there to be.
¶38 Despite clear standards as to what Defendants were
required to provide in their privilege log, Defendants still
produced an insufficient log. Then, upon filing a motion to
reconsider, Defendants hid behind our rules’ separate meet-and-
confer requirement as a way to avoid producing the documents
as ordered by the district court. 10 Indeed, Defendants
acknowledged that they “fell short” on providing the
“foundational bases” for the documents for which they asserted
privilege. Moreover, Defendants raised the meet-and-confer
issue as an aside for the first time at the hearing on their motion
to reconsider; they provided no argument or discussion on the
issue in their motion or supporting memorandum. It was
therefore not presented to the court as a basis from which to
grant Defendant’s motion for reconsideration. That the district
court refused to allow this behavior did not amount to an abuse
of its discretion.
10. In their response to Dr. Vered’s statement of discovery issues,
Defendants noted that Dr. Vered had failed to “meet and confer
in person or by telephone before filing his Statement.” But even
if that statement could be construed as an argument, it could not
have related to the privilege log, because Defendants had not yet
provided the privilege log when they filed their opposition.
Thus, the distinct argument that Dr. Vered failed to meet and
confer on his objections to the privilege log was not raised before
the district court until the hearing on the motion to reconsider.
20150866-CA 18 2018 UT App 15Vered v. Tooele Hospital Corporation
¶39 At the hearing on Defendants’ motion to reconsider, they
argued that “no meet and confer procedure that the rules require
has taken place with respect to the privilege log.” In practically
the same breath, Defendants acknowledged, concerning the
privilege log, “I can see where we fell short on the foundational
bases for these things.” Defendants’ motion to reconsider was
supported by a thorough memorandum and based on four
arguments. Three of those arguments involved the purported
affidavit requirement already discussed. See supra ¶¶ 24–29. The
final argument was that “in light of the strong legislative and
public policy support for, and criminal penalties protecting the
privilege that the Court has now ordered pierced, manifest
injustice and prejudice to quality health care generally will
follow unless the Court reconsiders its finding of waiver.” Then,
at the hearing, Defendants tacked on a brief mention of the lack
of a meet and confer on the privilege log. But this aside distracts
from the real question Defendants had asked the district court to
reconsider—whether they were required to provide the
documents contained in the privilege log.
¶40 At the initial hearing, the district court had concluded that
the privilege log was insufficient. At the hearing on the motion
to reconsider, the district court stood by that conclusion and
announced, “The Court is affirming its prior oral ruling. The 119
documents identified in the 10 page log are ordered produced.”
The district court based this ruling on the fact that it “could not
conclude and still today cannot conclude” that the documents in
the log “are privileged.” While the district court could have
required the parties to meet and confer, its decision to instead
respond directly to the merits of the motion to reconsider was
not an abuse of discretion. This is so especially in light of
Defendants’ concession, “I want to candidly tell the Court today
that as I look at the privilege log that we attached to our moving
papers here, your Honor, I don’t know that it satisfies all the
foundational requirements[.]”
¶41 In sum, while Defendants did raise their concern that the
parties had not met and conferred, that concern was separate
20150866-CA 19 2018 UT App 15Vered v. Tooele Hospital Corporation
from the reasons it had asked the district court to reverse its
ruling on the privilege log. 11 Given the misalignment between
these issues and the overall conclusion that Defendants did not
meet their burden in producing an adequate privilege log, we
affirm the district court’s denial of Defendants’ motion to
reconsider.
CONCLUSION
¶42 The third time is not the charm for Defendants. Where
they delayed in producing their privilege log and acknowledge
that the privilege log was deficient when it was finally produced,
we cannot conclude that the district court erred in ordering
Defendants to produce the documents for which they claimed
the care-review privilege applies. We thus affirm.
11. This case is plagued by what appear to be at least two ships
passing in the night. The parties did not engage in the expected
process, where one party produces a privilege log, the parties
meet and confer regarding any concerns, and if necessary, the
second party files its objections. But these problems are largely
of Defendants’ making. They ignored their obligation to produce
an adequate privilege log. The standard discovery process we
would have expected to see got away from everyone because
Defendants raised the privilege issue as a defense to why they
were so slow to produce documents generally. But the crux of
this case is that when Defendants finally asserted the privilege,
they did so inadequately. Given this backdrop, combined with a
district court’s broad discretion in governing discovery, we
cannot conclude that the district court abused its discretion in
any of the ways alleged by Defendants.
20150866-CA 20 2018 UT App 15