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Zavala v. City of Baton Rouge

United States District Court, M.D. Louisiana

November 4, 2019

MARIA OLGA ZAVALA
v.
CITY OF BATON ROUGE, ET AL

          NOTICE AND ORDER

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE

         On September 23, 2019, Plaintiff Maria O. Zavala (“Plaintiff”) filed her Motion to Compel against Defendant CorrectHealth East Baton Rouge, LLC (“CorrectHealth”) seeking an order of the Court compelling CorrectHealth to produce autopsy documents prepared regarding the death of Plaintiff's son, Louis Fano.[1] CorrectHealth has refused to produce these documents on the grounds of privilege. On October 16, 2019, following a telephone conference with the Court, [2]CorrectHealth filed its Opposition to the Motion to Compel, to which Plaintiff filed her Reply.[3]

         Plaintiff contends that she propounded Requests for Production of Documents on January 9, 2019, wherein she collectively sought, through several different requests, “any document composed by Defendant CorrectHealth that reviews the reasons for, circumstances of, and events leading up to Mr. Fano's suicide on February 2, 2017” at EBRPP, [4] including the documents that should have been generated by operation of CorrectHealth's “Procedure In the Event of An Inmate Death” Policy (the “Inmate Death Policy”), as well as other applicable policies.[5] According to Plaintiff, the Inmate Death Policy requires review of all inmate deaths to determine the appropriateness of clinical care. This review process includes a multidisciplinary mortality review and a psychological autopsy (if the death is caused by suicide), which results in the production of the autopsy documents.[6] Plaintiff contends that, despite several conferences, CorrectHealth has maintained its objection to producing the autopsy documents on the basis of privilege. However, Plaintiff avers that CorrectHealth failed to produce a privilege log with its discovery responses and thus has not met its burden of showing that a privilege applies.[7] CorrectHealth argues that the autopsy documents are privileged under the attorney-client privilege, self-critical analysis privilege, and/or attorney work product doctrine. CorrectHealth contends that it has not waived any privileges because, subsequent to the telephone conference with the Court, it produced a privilege log and a supplemental privilege log to Plaintiff.[8]

         Equal Employment Opportunity Commission v. BDO USA, LLP, [9] sets forth the following general rules regarding the assertion of the attorney-client privilege:[10] “[f]or a communication to be protected under the privilege, the proponent ‘must prove: (1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.'”[11] The attorney client privilege does not extend to materials assembled in the ordinary course of business, or which provide purely factual data.[12]

         The party claiming the privilege bears the burden of proof, and this is a highly fact-specific inquiry.[13] Ambiguities with respect to whether the elements of a privilege claim have been met are construed against the proponent of the privilege.[14] Once the privilege is established, the burden shifts to the party seeking the documents to prove an applicable exception.[15] Pursuant to Local Civil Rule 26(c):

A party withholding information claimed privileged or otherwise protected must submit a privilege log that contains at least the following information: name of the document, electronically stored information, or tangible things; description of the document, electronically stored information, or tangible thing, which description must include each requisite element of the privilege or protection asserted; date; author(s); recipient(s); and nature of the privilege. (emphasis added)

See also Fed. R. Civ. P. 26(b)(5). “[A] privilege log's description of each document and its contents must provide sufficient information to permit courts and other parties to ‘test[ ] the merits of' the privilege claim” and “courts have stated that simply describing a lawyer's advice as ‘legal,' without more, is conclusory and insufficient to carry out the proponent's burden of establishing attorney-client privilege.” “The standard for testing the adequacy of the privilege log is whether, as to each document, the entry sets forth facts that ‘would suffice to establish each element of the privilege or immunity that is claimed.' The focus is on the specific descriptive portion of the log, and ‘not on conclusory invocations of the privilege or work-product rule, since the burden of the party withholding documents cannot be discharged by mere conclusory' assertions.[16] “The party claiming the privilege must ‘describe those documents to the best of its ability without revealing the information privileged.'”[17]

         While CorrectHealth has asserted that the requested documents are protected by the attorney-client and “self-critical analysis” privileges in two privilege logs, the privilege logs[18] are insufficient under Local Rule 26(c). CorrectHealth's initial privilege log merely states: “Dates of Reviews 05/09/17 and 08/03/17, ” “Name of Document Quality Assurance/Morbidity & Mortality Review, ” the name and title of the author (“Stacy Scott, Esq. counsel for CorrectHealth”), the names of nine CorrectHealth employees and counsel who were “Participants, ” the privileges asserted (“Attorney client/self-critical analysis (La. R.S. 13:3715.3), ” and the number of pages (five). Likewise, the supplemental privilege log merely states: “Date Undated, ” “Name of Document Psychological Autopsy, ” the name of the author, (Cathy Schley), to whom the document was directed (“Stacy Scott, Esq. Correcthealth counsel per Policy & procedures CSO-A-10.0, CSO-G-5.0”), the privileges asserted (same as above) and the number of pages (four). CorrectHealth has not provided any descriptions of the contents of these documents as required by Local Rule 26(c) or any detail to determine the nature of the advice sought or that the “self-critical analysis” privilege applies.[19] As currently drafted, these two logs are insufficient to carry CorrectHealth's burden of establishing that the underlying documents are protected by either the attorney-client or “self-critical analysis” privilege.

         “[T]he majority approach by courts, when confronted by a privilege log that is technically deficient and that does not appear to have been prepared in bad faith, is to allow the party who submitted the log a short opportunity to amend the log prior to imposing the drastic remedy of waiver.”[20] CorrectHealth will be given the opportunity to revise its privilege logs to provide sufficient descriptions of the underlying documents and alleged legal advice sought or provided in connection therewith and shall submit any revised privilege logs to Plaintiff by no later than November 15, 2019.

         IT IS ORDERED that Defendant CorrectHealth East Baton Rouge, LLC may provide revised privilege logs to Plaintiff, Maria Zavala, by no later than November 15, 2019.

         IT IS FURTHER ORDERED that Plaintiff, Maria Zavala, shall file a Notice with the Court by no later than November 22, 2019 advising whether revised privilege logs have been received and, if so, whether the revised logs resolve the issues raised in the Motion to Compel. If the revised privilege logs do not resolve the Motion to Compel, Plaintiff shall attach the revised privilege logs to the Notice.

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Notes:

[1] R. Doc. 118. Plaintiff alleges that various Defendants failed to protect Fano from alleged harm and deliberate indifference to his medical needs under 42 U.S.C. ยง 1983. Fano committed suicide in February 2017 while incarcerated in the East Baton Rouge ...


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