The stonewalling of Baptist Healthcare Systems (BHS) to a former employee’s discovery requests in a wrongful termination and defamation suit got nowhere with the Court of Appeals, which reversed both a discovery order and a summary judgment granted by Jefferson Circuit Court. Becker v. Baptist Healthcare Systems. The Court’s analysis and discussion of the attorney-client privilege’s applicability is the most important point of the case. The attorney-client privilege was asserted by BHS as to what it described in its own brief as “25 email communications made between Baptist employees but at the direction of litigation counsel.”
The Court reiterated the three options that a party actually asserting a bona-fide attorney-client privilege objection to discovery may follow that the Kentucky Supreme Court laid out in Collins v. Braden, 384 S.W.3d 154 (Ky. 2012). Those three options are: (1) in camera review by the presiding trial court judge; (2) producing a detailed privilege log with descriptions of the documents sufficient to establish the existence of the privilege (i.e., more than their titles); or, (3) making an offer of proof that sufficiently describes the documents in question. Most circuit judges prefer the privilege log option, which is what BHS decided to go with.
A privilege log, however, must provide enough detail about the communication to establish the existence of the privilege, and the Court found that BHS provided to be inadequate. Furthermore, the court observed that “communications between a client’s employees” ordinarily will not be privileged.
The Court then advised that any claim of privilege must be rooted in KRE 503, which requires the employees in question to fit the definition of a type of “person” to which that rule refers. There are two types of such persons: a “client” and a “lawyer.” Merely denominating the employees as having communicated “at the direction of litigation counsel” did not make any of them a “representative of the lawyer” under KRA 503(a)(4). The Court did allow that an employee might qualify as a “representative of the client” but this required that they be vested with the specific authority recited in KRE 503(a)(2), and further advised that all of the email communicants must be a “representative of the client” for their communications to be privileged. Further, the Court added, that the communications must be confidential as defined by KRE 503(a)(5).
The court reversed the summary judgment granted by the Jefferson Circuit Court and also the discovery order upholding BHS’s discovery objections. The case will go back for further proceedings and odds are that BHS will try to settle the case before it has to disclose the email communications, which may well enhance the overall value of the case.
Robert L. Abell
www.RobertAbellLaw.com
