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BRFHH Shreveport, LLC v. Willis-Knighton Medical Center

United States District Court, W.D. Louisiana, Shreveport Division

April 19, 2017


          FOOTE JUDGE




         This is an antitrust lawsuit concerning an alleged scheme by Willis-Knighton to transfer LSU's commercially insured patients from University Health to Willis-Knighton. Before the court is Plaintiffs' Motion to Compel Production From LSU (Doc. 208). The motion concerns documents (email chains) that LSU withheld from production on grounds of the deliberative process privilege and the attorney-client privilege. Plaintiffs allege that this discovery dispute involves at least 140 different documents. However, by agreement of the parties, only nine of the disputed documents have been submitted to the court as exemplar cases. The parties are hopeful that resolution of the dispute regarding the nine documents will aid them in resolving their disputes as to the other documents and any privilege disputes that arise in the upcoming LSU depositions.

         For the reasons stated below, the court finds that the deliberative process privilege, assuming it applies in this case, must give way to the important public interest involved in a federal antitrust lawsuit involving the operation of northwest Louisiana's only safety net hospital for treatment of the poor and medically underserved. However, following the court's in camera review of each of the disputed emails, the court finds that LSU's assertion of the attorney-client privilege was generally appropriate.

         Deliberative Process Privilege

         The purpose of the deliberative process privilege is to enhance the quality of government decisions by assuring individuals who offer information and opinions to the government that their communications will be kept in confidence. Shermco Industries, Inc. v. Secretary of Air Force, 613 F.2d 1314, 1318 (5th Cir. 1980). The privilege is narrowly construed. Cain v. City of New Orleans, 2017 WL 894653 (E.D. La. 2017).

         For the deliberative process privilege to apply, the information sought must be both predecisional and deliberative. Information is predecisional if it was prepared in order to assist the government decision maker in arriving at his decision. Id. It is deliberative if it reflects the give and take of the consultative process. Id. But the deliberative process does not extend to purely factual materials. Id. And if a document is merely peripheral to actual policy formation, it will not be protected. Dipace v. Goord, 218 F.R.D. 339, 404 (S.D. New York 2003).

         Even when documents are protected by the privilege, the parties seeking the materials may still obtain them if their need for accurate fact finding overrides the government agency's interest in non-disclosure. Id. Other courts have stated that for a document to qualify for the deliberative process privilege, the court must balance the agency's interest in non-disclosure against the public interest in opening for scrutiny the government's decision- making process. Deng v. New York State Office of Mental Health, 2015 WL 7422184 (S.D. New York 2015). See e.g., Torres v. City University of New York, 1992 WL 380561 (S.D. New York 1992) (“Particularly in a civil rights action, ” the public's interest in challenging discrimination is overriding, and the privilege must yield.).

         For the privilege to apply, the agency must be acting in its capacity as a governmental body formulating important public policy. The privilege has not been applied when an agency was acting in its capacity as an employer. Deng, supra.

         LSU has not met its burden of demonstrating to the court that the chains of emails sought to be protected are both predecisional and deliberative. The court, of course, recognizes LSU's important role in maintaining a teaching institution as well as a hospital for treatment of the indigent and medically underserved in North Louisiana. And as part of LSU's obligations, it no doubt has to make difficult decisions regarding who it may wish to partner with. But why LSU took certain actions (and did not take other actions) are at the heart of this antitrust lawsuit.

         Did Willis-Knighton strong arm LSU into the current arrangement? Did Willis-Knighton interfere with LSU's attempts to meet with Ochsner or others to discuss alternative arrangements? The nine documents submitted to the court are extremely relevant to these key questions, and the public's interest in enforcing federal antitrust laws to ensure fair competition in a critical market vastly outweighs LSU's interest in non-disclosure of the documents. Therefore, even if the deliberative process privilege applies, the privilege will not be enforced in this case. LSU is ordered to produce the documents that were withheld solely on the basis of the deliberative process privilege.

         Attorney-Client Privilege

         Even though the deliberative process privilege will not be applied to LSU in this case, there are emails within the nine email strings attached to Plaintiff's motion that do ...

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