OH BOY! There is an even BETTER development in the Doctor’s Data v Barrett federal court case.
Opinion by Consumer Advocate Tim Bolen
I had to force myself to stop laughing and mentally outline this article.
It seems, that in the middle of the judge’s Order to Compel, starting with the second sentence, there is an entirely new opportunity. I’ve highlighted the important part for today. What this is saying, in laymen’s language, is “if you have any documents that you believe should be withheld due to actual “privilege,” make a list of them, describing them, and write down why you think they should be “privileged.” Then we will look at them and make a determination.”
Motion hearing held. Plaintiffs motion to compel pertaining to privilege issues  is granted. Defendant is ordered to confirm by the end of today whether it has redacted any documents on the basis of a privilege claim. Any documents redacted on that basis must be identified on a privilege log to be provided to Plaintiff by 9/12/12. Defendant is directed to produce un-redacted versions of documents redacted on the basis of relevance to Plaintiff by 9/12/2012. With respect to documents withheld on the basis of a common interest privilege, the parties are granted leave to file submissions, by 9/12/12, addressing the application of that privilege to any documents withheld by Defendant on the basis of a common interest privilege claim. Plaintiffs motion to compel pertaining to financial documents  remains under advisement pending further consultation between the parties, as discussed in court. Status hearing set for 9/19/2012 at 9:00 a.m.
Well, as you can imagine, Barrett, et al, came up with a list of twenty-nine (29) communications they are absolutely certain should be withheld. What were they? Below I will show you a chart copied from the Defendant’s attorney. But, in short, they are personal communications between Stephen Barrett, and California attorney David Wilzig, and bobbie baratz (Robert S. Baratz MD, DDS, PhD) regarding the case. The documents very clearly discuss the strategy they intend to employ.
Their claim to “privilege?” A situation called “common interest privilege,” a subcategory of “attorney-client privilege.” If you want details of both – click here.
In short – their claims are LUDICROUS. All they have done is to call attention to the IMPORTANCE of the twenty-nine (29) documents that they will, after the judge reads their asinine arguments, be forced to turn over to Doctor’s Data’s attorneys.
“Attorney-client privilege,” and hence, “common interest privilege,” are reserved for communications between attorneys and their clients, or between attorneys and attorneys in the case – NOT EVER for communications between Defendants.
I’ll be blunt…
I WANT those documents, not as much as I want a video copy, and an electronic transcript, of Barrett, Baratz, and Wilzig, etc’s, Depositions – but close. And you can easily guess what I would do with them…
In a minute I am going to give you a glimpse of Barrett, et al’s, attorneys so-called legal arguments over this with an excerpt from the filing. Then I am going to make you laugh when you read Doctor’s Data’s attorney’s filing giving them another legal lesson. With the excerpt is the “chart” that was required by the judge. Read the “chart” carefully – and laugh at what Barrett and baratz are going to have to hand over.
Barrett’s half-vast legal argument to withhold the twenty-nine (29) documents…
It looks like a lot of text, but it is an easy read. It even sounds like a reasonable argument – but, it’s not. Once you get finished with this read the REAL law just below it. If you want click common interest to read the whole thing.
Then savor what’s going to happen…
Oh yeah? Now read REALITY, as presented by Doctor’s Data’s attorneys…
If you want click here to read the whole Memorandum.
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANTS’ UNTIMELY ASSERTION OF AN INAPPLICABLE “COMMON INTEREST” PRIVILEGE
On August 27, 2012, following numerous discovery conferences with defense counsel, Plaintiff filed a motion to compel Defendants to produce numerous items the production of which had been refused based on one privilege or another; and numerous other items which had been produced in redacted form. After Plaintiff’s motion to compel was filed, but prior to the hearing, Defendants’ lead attorney, Michael Botts, delivered a more detailed privileges log than his previous sparse effort had produced, at which time it became clear that the bulk of Defendants’ nondisclosures was premised on the “common interest” privilege.1
At the hearing of September 5, 2012, this Court dealt with the redactions issue by ordering Defendants to disclose, by the end of the day, which items had been redacted based on relevance and to produce all such items within a week’s time.2 However, while agreeing with
Plaintiff that the common interest privilege is narrowly drawn, this Court afforded Defendants an opportunity to brief their reasons for believing they could assert this privilege, while Plaintiff was allowed simultaneously to brief the counter-point.
As stated in open court on September 5, 2012, Plaintiff’s attorneys submit that state, not federal law determines which privileges apply herein, and there is no “common interest” privilege in the laws of either of the two potentially applicable states: North Carolina or Illinois. In the alternative, should this Court deem federal common law defines the privileges, the common interest privilege is construed so narrowly that even when this corollary to the attorney-client privilege does apply, it only covers communications between the clients’ attorneys, not the clients themselves, whom prudence would caution not to communicate directly among themselves, as this creates discoverable evidence. Thus, all of the documents Defendants have withheld in this instance on the basis of the common interest privilege should be produced.
- THE COMMON INTEREST PRIVILEGE IS DETERMINED BY STATE LAW
Rule 501 of the Federal Rules of Evidence provides that “in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” The rationale for this view is expressed in the 1974 Advisory Committee Notes:
The rationale underlying the proviso is that federal law should not supersede that of the States in substantive areas such as privilege absent a compelling reason. The Committee believes that in civil cases in the federal courts where an element of a claim or defense is not grounded upon a federal question, there is no federal interest strong enough to justify departure from State policy.
Plaintiff’s complaint sounds primarily in state law, specifically the state law counts of libel per se, intentional interference with prospective economic advantage, civil conspiracy, and trade-mark dilution under Illinois law. Plaintiff also sets out a count under the Lanham Act, asserting Defendants’ libelous publications have damaged its federal trademark. It is readily apparent from Mr. Botts’ amended privileges log that the “common interests” Defendants have asserted deal with Plaintiff’s allegations in pendent state claims, not dilution of a federal trademark. As such,
this is a classic case where “there is no federal interest strong enough to justify departure from State policy.” In re Yasmin and Yaz, 2011 U.S. Dist. LEXIS 39820, at *7 (S.D. Ill. 4/11/ 2011).
The Yasmin court also noted that when Rule 501 requires application of state privileges law and there are factual connections to more than one state, the court should apply state choice-of-law rules to determine which state’s privileges laws apply. Id. at *11-12. A similar analysis was undertaken in the lawsuit sub judice on November 22, 2011, when North Carolina law was held to apply to defenses claimed by Defendant Barrett, a resident of North Carolina. Equally, North Carolina law should apply to any claimed privileges with respect to withholding and redacting documents.
On November 22, 2011, Hon. Edmond Chang entered an order which denied Defendants’ assertion that the Illinois Citizen Participation Act applied to this case and denied their motion to dismiss. 735 ILCS 110/ et seq. [#85] Judge Chang analyzed Illinois law of conflicts and determined that Illinois law applies to the causes of action but because Barrett is a resident of North Carolina, North Carolina law applies to defenses and privileges. “Under the doctrine ofdepeçage,” the court observed, “the issue of whether a statement is defamatory is distinct from the issue of whether that statement is privileged.” [# 85, p. 6] Judge Chang continued: “The conflict-of-law dispute is limited to whether Barrett’s statements are potentially protected under Illinois law (as Barrett contends), or whether he is restricted to defenses recognized in North Carolina (as Doctor’s Data contends).” Id. [Parentheticals in Original] It is clear from the above
quote that Judge Chang’s ruling applies to both defenses and privileges.
The common interest privilege is not recognized under North Carolina law except in the narrow circumstance of a “tripartite-attorney-client relationship” which exists when an insurance company employs counsel to defend its insured against a claim, noting that “courts find the attorney defending the insured and receiving payment from the insurance company represents
In sum, several reasons militate granting Plaintiff’s motion to compel and refusing Defendants’ tardy effort to assert the common interest privilege to avoid disclosure. First, Rule 501 of the Federal Rules of Evidence dictates that state law governs privileges, and neither North Carolina nor Illinois, the two potentially applicable states, recognizes this privilege in this context.
Second, even if federal common law applies, the privilege is too narrowly drawn to be applicable herein. None of the above-discussed prerequisites have been met, and communications among the persons rather than their respective attorneys simply do not qualify.
Finally, by not having raised the common interest privilege in their initial responses to Plaintiff’s requests for production, and by subsequently producing documents deemed to be privileged after expressly stating they were producing the items despite the many supposedly applicable privileges, Defendants have waived this privilege.
WHEREFORE, DOCTOR’S DATA, INC., Plaintiff, prays that Defendants be ordered to immediately produce all documents withheld pursuant to the “common interest” privilege.
DOCTOR’S DATA, INC., Plaintiff,
Oh yeah! I definitely want to read these documents…
Stay tuned. And smile.
Tim Bolen – Consumer Advocate