Discovery of Abuse Part II: Baseless Assertion of Privileges

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I. INTRODUCTION:
In the last issue of Trial Bar News we wrote about a troubling trend in this State toward abusive discovery tactics.1 In this article, we address one part of that trend: the baseless assertion of privileges. Privileges are being used as a matter of course to thwart legitimate discovery requests. Too often they are asserted without careful analysis, needlessly delaying discovery and adding significant expense to the process. We hope to discourage this abusive tactic by carefully delineating the scope of the most commonly asserted privileges.
II. DISCOVERY PRIVILEGES:
A. General Principles:
Obviously, privileges serve beneficial purposes. However, they can be misused to interfere with the truth-seeking process in violation of this State’s fundamental philosophy in favor of liberal discovery.2 The balance between these competing interests is manifested in New Hampshire’s treatment of privileges as a necessary evil.
When the rules of evidence were adopted in New Hampshire the decision was made to limit privileges to those expressly set forth in the constitution, statutes, and court rules.3 As a result, there is no such thing as a common law privilege in New Hampshire.4 The abrogation of common law privileges means that there are explicit, written limits to the scope of the information that may be withheld in reliance on each.
The fact that privileges are disfavored is further reflected in the rule that requires courts to strictly construe all privileges.5 The burden of establishing the application of the privilege is placed squarely on the party asserting it.6 The precise requirements of the three most commonly asserted privileges are set forth below.
B. Attorney-Client Privilege:
The attorney-client privilege in New Hampshire is governed by New Hampshire Rule of Evidence 502. The rule states that “the client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . .”7
When the attorney-client privilege is asserted, the first issue is whether the person who provided the information to the attorney is truly the attorney’s “client.” This becomes a difficult question when the privilege is asserted by an employee of a corporate defendant with respect to information he or she provided to the corporation’s attorney.
In the corporate party context, New Hampshire has adopted the “control group” test.8 The control group is comprised of those individuals who have authority to retain counsel on behalf of the corporation or to act on advice rendered.9 In a medical malpractice case, for example, mere employees of a hospital or professional association may not claim the attorney-client privilege with respect to statements made to a lawyer retained to represent the entity alone.10
The second question that arises when the attorney-client privilege is claimed is whether the information was truly passed confidentially. The privilege is waived to the extent the information is passed in the presence of a third party.11
It is important to note that a client may not insulate material that is otherwise discoverable merely by providing the information to his attorney.12 For example, a client cannot refuse to disclose facts of which he has personal knowledge or opinions he holds merely because he discussed them with his attorney. The converse is also true: he cannot refuse to disclose information he learned from his attorney. The only thing that is arguably protected by the privilege is the fact that the client told his attorney something or the fact that the client learned something from his attorney. The information itself is not privileged.
Using the medical malpractice example, a defendant physician may not assert the attorney-client privilege to refuse to answer deposition questions asking for his medical opinion.13 The privilege would only come into play if the deposition question or interrogatory asked whether the defendant presented this opinion to his attorney.
The attorney-client privilege is not absolute. Even if a client is able to establish that the information sought is within the protection provided by the terms of Rule 502, the information remains discoverable if it is essential to the opposing party’s case and cannot be acquired elsewhere.14 This again reflects the fundamental premise consistently recognized and enforced in New Hampshire that precludes parties from using privileges to prevent proof of a meritorious case.
C. Work-Product Privilege:
The work product of an attorney is shielded from discovery by Superior Court Rule 35b(2). In order for material to come within the qualified immunity of this rule it must be: 1) a document or tangible thing; 2) prepared in anticipation of litigation; and 3) prepared by or for another party or that party’s representative.15
The first requirement is self-explanatory, yet very important. Often, attorneys will claim the privilege at depositions where there is no document or tangible thing at issue. It is improper to claim the privilege for pure testimony.
The second requirement is more complicated. Our Supreme Court has not explained the meaning of “in anticipation of litigation.” The Superior Court, however, has emphasized that “litigation is not ‘anticipated’ until the expectation of litigation is such that an attorney has become involved in the dispute.”16 As a result, “[t]he mere possibility that litigation may occur or even the mere fact that litigation eventually does ensue is insufficient to cloak the materials with the mantle of work product protection, . . .”17
The last requirement is that the document or tangible thing must have been prepared either: 1) by the opposing party; 2) for the opposing party; 3) by the opposing party’s representative; or 4) for the opposing party’s representative. This is a very broad definition that encompasses nearly all documents prepared in anticipation of litigation. As a result, this will rarely be a point of contention.
Our Supreme Court has emphatically limited the scope of the work-product privilege. It applies only to those portions of documents that reveal the thoughts and mental impressions of counsel. It does not apply to those portions of the documents that relate only to facts learned by counsel.18
For example, the Court has held that factual statements and witness observations are not work-product.19 As a result, a document which contains both witness statements and analysis by an attorney must be turned over to the opponent after the attorney’s mental impressions have been redacted.20 Going even further, the Court has held that “[a] report that merely analyzes facts and renders an opinion as to what occurred without reflecting or discussing the theories, mental impressions, or litigation plans of the defense attorneys should not be considered work-product.”21
Like the attorney-client privilege, the work product privilege is not absolute. Even if a document meets the definition of work-product, it is nevertheless discoverable upon a showing of substantial need and undue hardship.22 In one case, the Superior Court applied this exception to a medical malpractice defendant’s analysis and summary of the case which she prepared after learning that the plaintiffs, through their attorneys, were requesting copies of their medical records. The court ordered production of the defendant’s written account because the defendant’s “comments and analysis contained in the documents at issue are important to the preparation of the plaintiffs’ case. Moreover, the documents may contain admissions helpful to the plaintiffs’ case, and the plaintiffs could not obtain the documents through other means.”23
Another situation in which work-product may be discoverable under the substantial need exception is when the protected documents are necessary to refresh the memory of witnesses who have since forgotten details of the incident. For example, in a recent federal district court case, Judge McAuliffe ordered production of the defendant’s investigation file in part because the witnesses who had given statements had testified at deposition that they did not remember certain details.24
C. Quality Assurance Privileges
New Hampshire has adopted a variety of statutory privileges applicable to health care providers acting in the context of quality assurance. They include privileges applicable to:
Hospitals25;
Ambulatory Care Clinics26;
Health Maintenance Organizations27;
Nursing Homes28; and
Community Mental Health Centers.29
Since there are no common law privileges, the only defendants that can claim a quality assurance privilege are hospitals, ambulatory care clinics, HMOs, nursing homes, and community mental health centers. For instance, the Visiting Nurse Association does not have a quality assurance privilege.30
The privilege afforded by the quality assurance statutes is not unlimited; it is confined to the records and testimony explicitly described therein.31 This follows from the principle that the terms of these privileges must be strictly construed.32 It is the responsibility of the defendant asserting the privilege to prove that the material it seeks to withhold is clearly within the scope of the statute.33
The legislative history of the hospital quality assurance statute reveals that even its proponents agreed that “judgments regarding the quality of care in an individual case would in no way be restricted.”34 This is reflected in the text of the hospital statute which refers to a hospital committee “organized to evaluate matters relating to the care and treatment of patients or to reduce morbidity and mortality . . .”35 The hospital statute, therefore, does not permit the hospital to withhold investigatory materials regarding treatment provided to a particular patient. By its terms, it only applies to the ultimate conclusions of that investigation and to the committee’s precise recommendations for preventing a future repeat of any disclosed errors.
This position is supported by the different language employed by the legislature in the newer quality assurance statutes. Unlike the hospital statute, which uses the term “evaluate,” the newer statutes refer expressly to investigations. The common meaning of “evaluate” is to “examine or judge.”36 The word “investigate,” however, is by definition and by implication a term which denotes a systematic, detailed examination of a particular issue or event.37 Therefore, while the words “evaluate” and “investigate” are similar in meaning, they are quite different in connotation and usage. An “investigation” is performed to determine what happened, while an “evaluation” addresses the issues of why it happened and whether it can happen again. The legislature’s failure to specifically protect the former in R.S.A. 151:13-a simply reflects the fact that the statute was generally understood not to immunize “judgments regarding the quality of care in an individual case.”
The text of the statute provides further support for this position. By its terms, R.S.A. 151:13-a pertains to evaluation of treatment and care given “patients.” The legislature’s use of the plural is significant. It reflects an intent to limit the privilege to a hospital-wide evaluation of treatment. The legislature has shown that it understands how to immunize “investigations” when it wants to.38 It simply has not done so in the hospital context.
The statutes are uniform in requiring that the privileged information must have been “generated” during the activities of a quality assurance committee. Accordingly, the committee must have caused the materials to be “brought into existence.”39 “Individual forays into quality assurance are not privileged under the statute.”40 A bright-line distinction can therefore be drawn between materials created by the quality assurance committee and materials it merely relies upon. The committee cannot turn a nonprivileged document into a privileged one simply by taking it into consideration; it does not have the “Midas touch.”41
An excellent example of this distinction is found in the treatment of “incident reports.” Such documents are administratively filed after a bad result and are often reviewed by the quality assurance committee. Nevertheless, courts generally find them to be outside the scope of the privilege since they are created in the normal course of business and not generated by the committee.42
There is some question whether the statutory quality assurance privileges are absolute or whether they are subject to the “substantial need” exception applicable to other privileges. In a recent case, we argued that, while certain materials were clearly within the scope of the hospital quality assurance statute, they were nevertheless discoverable because they were essential to the plaintiffs’ case. They were essential, we argued, because the defendant physician passed away after suit was filed but before he could be deposed. Therefore the contemporaneous notes of the doctor’s quality assurance testimony contained the only evidence available to learn the physician’s explanation for what occurred and to counter the hearsay testimony of his colleagues regarding conversations they claimed they had with him. The defendants argued that the quality assurance statute was absolute.
The case settled before this issue was decided, but there is support for our position in a recent Supreme Court opinion construing the HMO quality assurance statute. Although it declined to squarely decide the issue, the Court observed that “there are occasions in which even the most sacred of privileges must fall, such as when there is no available alternative source for the information and there is a ‘compelling need for the information.'”43 We feel that this strongly supports the argument that each of the statutory quality assurance statutes is subject to a common law exception for materials that are essential to the patient’s case.44
III. CONCLUSION:
Discovery is often the most important part of civil litigation. Attorneys are under tremendous pressure to prevent disclosure of harmful evidence. To ensure that all relevant evidence is uncovered, it is imperative that the scope of the available privileges is understood. We hope that the foregoing is of assistance in this regard.
Endnotes
See “Discovery Abuse in New Hampshire: What Happens When The Honor System Fails,” 20 TBN 80 (Fall, 1997).
See Johnston v. Lynch, 133 N.H. 79, 94 (1990).
See N.H.Evid.R. 501.
Rule 501 applies to abrogate common law privileges in federal district court diversity cases as well. See Fed.Evid.R. 501 (state law applies to privilege disputes in diversity cases, while federal common law governs in federal question cases).
See Marceau v. Orange Realty, Inc., 97 N.H. 497, 499-500 (1952) (In the absence of “a clear legislative mandate,” new privileges will not be assumed, nor will existing privileges be broadened.); State v. LaRoche, 122 N.H. 231, 233 (1982) (refusing to extend physician-patient privilege to EMTs); State v. Melvin, 132 N.H. 308, 310 (1989) (refusing to extend pastoral privilege to third party assistants).
See 81 Am. Jur. 2d Witnesses §141 (1976).
N.H.Evid.R. 502 (b).
See N.H.Evid.R. 502, Reporter’s Notes; Klonoski v. Mahlab, No. 95-153-M, slip op. at 6-8 (D.N.H. July 16, 1996).
Klonoski, slip op. at 7, n. 2 (quoting N.H.Evid.R. 502(a)(2)).
Id.
See Riddle Spring Realty Company v. State, 107 N.H. 271, 273-74 (1966).
See Riddle Spring, 107 N.H. at 274; McGranahan v. Dahar, 119 N.H. 758 (1979).
See Nary v. Orthopedic and Trauma Specialists, P.A., No. 96-C-308, Order on Plaintiffs’ Motion to Compel Deposition Answers (Strafford County Superior Court, June 3, 1997); Pacamor Bearings, Inc. v. Minebea Company, Ltd., 918 F.Supp. 509-11 (D.N.H. 1996).
See McGranahan, 119 N.H. at 764.
See Hilber v. Horsley, No. 93-C-790, Order on Motion to Compel Production of Documents at 2 (Hillsborough County Superior Court, Southern District, April 26, 1994); Pacamor Bearings, 918 F.Supp. at 511-15.
Id., slip op. at 3.
Id., slip op. at 4 (quoting Gold Standard v. American Resources, 805 P.2d 164, 170 (Utah 1990)).
See State v. Chagnon, 139 N.H. 671 (1995); State v. Drewry, 139 N.H. 678 (1995).
See Chagnon, 139 N.H. at 675-76.
Id.
Drewry, 139 N.H. at 682.
See Rule 35b(2).
Hilber, slip op. at 4.
See Klonoski v. Mahlab, 953 F.Supp. 425, 427 (D.N.H. 1996).
R.S.A. 151:13-a.
R.S.A. 151:D:2.
R.S.A. 420-B:26.
R.S.A. 151-A:16.
R.S.A. 135-C:63-a.
See Kerouac v. VNA Home Health and Hospice, Inc., No. 97-C-142, Order on Motion To Compel (Hillsborough Superior Court, Northern District, August 21, 1997).
See In re K, 132 N.H. 4, 15 (1989).
Id., 132 N.H. at 13; Marceau v. Company, 97 N.H. 497, 499 (1952).
See 81 Am. Jur. 2d Witnesses §141 (1976); Nichols v. DePierro, No. 90-C-276, Order on Motion to Compel (Grafton County Superior Court, Feb. 4, 1992).
Statement of Gerald Homer, Associate Administrator of Nashua Memorial Hospital on behalf of H.B. 842 (House Committee on Health and Welfare, April 20, 1981).
R.S.A. 151:13-a, II.
See The American Heritage Dictionary of the English Language at 453 (1981).
Id. at 689.
See R.S.A. 135-C:63-a, I(a); R.S.A. 151-A:16, I(a); R.S.A. 151-D:1, II; R.S.A. 420-B:26, I(a).
The American Heritage Dictionary of the English Language at 549 (1981).
Id., 132 N.H. at 13.
Id., 132 N.H. at 14.
See Cochran v. St. Paul Fire & Marine Insurance Company, 909 F.Supp. 641 (W.D.Ark. 1995); Dunkin v. Silver Cross Hospital, 573 N.E.2d 848 (Ill.App. 1991); John C. Lincoln Hospital and Health Center v. Superior Court, 768 P.2d 188 (Ariz. 1989); Sheldon v. Cheshire Medical Center, No. 93-C-235, slip op. at 7 (Cheshire County Superior Court, October 19, 1994).
Harper v. Healthsource New Hampshire, 140 N.H. 770, 779 (1996).
See State v. Elwell, 132 N.H. 599, 605 (1989) (physician-patient privilege); Nelson v. Lewis, 130 N.H. 106, 109 (1987) (physician-patient privilege); McGranahan v. Dahar, 119 N.H. 758, 764 (1979)(attorney-client privilege).

Mark Abramson
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