Banks v. U.S.
Banks v. U.S.
2005 WL 974723 (W.D. Wash. 2005)
March 22, 2005
Bryan, Robert J., United States District Judge
Summary
The court found that the emails containing the thought processes of the defendant's counsel were work product and thus not subject to waiver of immunity when they were inadvertently disclosed to the plaintiff. The court applied a five-factor test to determine if the emails were waived and found that they were not. The court ordered the plaintiff to immediately return the emails and prohibited the plaintiff from using the content of the emails at trial.
Bruce BANKS, individually, Plaintiff,
v.
THE UNITED STATES OF AMERICA, Defendant
v.
THE UNITED STATES OF AMERICA, Defendant
No. C03-5533RJB
United States District Court, W.D. Washington
March 22, 2005
Counsel
Ann R Deutscher, Tacoma, WA, for Plaintiff.Philip H Lynch, Tacoma, WA, for Defendant.
Bryan, Robert J., United States District Judge
ORDER REGARDING EMAILS
*1 This matter comes before the Court on Plaintiff's Motion Requesting Direction from the Court Regarding Emails. Dkt. 45. The Court is familiar with the records and files herein, and all documents filed in support of and in opposition to the Motion.
This is a medical malpractice case filed pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671-2680. Dkt. 1. The case arises from care Plaintiff received at the Veteran's Affairs Hospital in Seattle. Id. Plaintiff argues, in part, that Defendant failed to obtain his informed consent for the laparascopic prostatectomy it performed on January 18, 2001. Id. at 3.
This Motion arises from Plaintiff's trial counsel's discovery of a series of emails attached to various documents obtained through discovery. Dkt. 42, at 2. The emails are between Michelle Gray, a Virginia attorney, acting as a paralegal for the United States Attorney's Office, and an expert she was hired to locate, Christopher J. Kane, M.D. Dkt. 49, Ex. A and B. The United States Attorney's Office hired Ms. Gray to find an expert in this case and another similar case arising out of a laparoscopic prostatectomy, Hodges v. United States. Id. Hodges is being defended by Assistant U.S. Attorney, Robert Taylor. Id. Ms. Gray states that she did not speak with either of the doctors who performed Plaintiff's procedure, but her knowledge of the case came from reading the medical record and talking with the Assistant U.S. Attorney assigned to the case, Philip Lynch. Id., Ex. A at 3, Ex. B at 2. There is no evidence to the contrary. Her knowledge of the facts in Hodges came from reviewing the medical record in that case and speaking with Robert Taylor. Id., Ex. B, at 2.
Plaintiff points to two emails. Dkt. 45, at 3. Ms. Gray sent the first to Dr. Kane on May 11, 2004 at 3:43 p.m. It stated in relevant part,
When we talked, you were somewhat concerned about the informed consent issue, because it is well documented both that procedures early in the learning curve take longer, and that longer procedures are associated with greater risks of injury such as neuropraxia and compartment syndrome. It does not appear that our surgeons discussed either the increased length of the surgery or the increased risk, but they do not really think it is an issue. Could you cite me some of the articles you are referring to? This is an issue in both the Banks case, and particularly in another VA case, later in the series, which I believe you may have reviewed in house.
Dkt. 42, Ex. 1, at 3. Ms. Gray indicates her statement “It does not appear that our surgeons discussed either the increased length of the surgery or the increased risk” was based on her review of the medical records. Dkt. 49, Ex. B., at 2.
Ms. Gray sent the second email to Dr. Kane on May 12, 2004 at 11:41 a.m.
Hello Dr. Kane. Now that I have read the article, my question is, in 2001, was there any reason to specifically advise a patient that a LAPRP may cause neuropraxia or compartment syndrome? The list of complications in the article does not include such injuries. While I understand there is a known risk with high lithotomy positioning, are there reports that should have prompted an informed consent discussion considering the position for a LAPRP? Our guys are saying they were not aware of any reason to warn of positioning related injury, and even after our two incidents, at least one of them still would not warn.
*2 Dkt. 42, Ex. 1, at 2. Ms. Gray stated her that comment, “even after our two incidents, at least one of them still would not warn,” may be in reference to a surgeon not involved in Mr. Banks' care. Dkt. 49, Ex.B, at 2. But, that she is not sure. Dkt. 49, Ex. B, at 2. Ms. Gray indicated her representations of what “our guys” said was based on conversations with Mr. Lynch and Mr. Taylor and not with the doctors involved in the two cases. Id.
Plaintiff argues the content of the two emails directly contradicts the deposition testimony of the two doctors involved in his case. Dr. Penson, who obtained consent for the procedure from Plaintiff, stated in his August 11, 2004 deposition:
Q. Do you routinely tell laparoscopic patients that they could suffer neurological injuries? A. I routinely tell laparoscopic patients that the case takes longer,-that there is a increased risk due to cases taking longer, in particular there's an increased risk of positioning injury. Q. Did you tell Mr. Banks that? A. Yes, I did. Q. Did you write that down anywhere, Doctor? A. No, ma‘am.
Dkt. 42, Ex. 2, at 14-15. Dr. Porter, the primary surgeon, who was not present at the informed consent discussion, testified as follows: “Q. To the best of your knowledge, was Mr. Banks told anything about possible neurologic deficits? A. Um, to the best of my knowledge, he was told that it was a longer procedure and that puts him at increased risk for positioning injuries.” Dkt. 42, Ex. 3, at 99.
In the Motion, Plaintiff's counsel first indicates she believes she has an ethical obligation to inform the Court of the above emails and their contradiction with the doctors' testimony. Dkt. 42, at 9. Plaintiff then argues that the information his counsel obtained suggests subornation of perjury by defense counsel and/or perjury by Dr. Porter and Dr. Pension during their depositions. Id . Plaintiff argues that if this Court determines that the United States Attorney's Office has suborned perjury, the Court should strike Defendant's pleadings and hold an evidentiary hearing to determine the amount of Plaintiff's damages. Id. at 11-12. In the alternative, Plaintiff requests that he be permitted to use the content of these emails at trial. Id. at 1.
In its Response, the Defendant denies that any one in the United States Attorney's Office suggested to Dr. Porter or Dr. Penson that they should commit perjury. Dkt. 49, at 3, Ex. A, at 3. Defendant opposes the striking of its pleadings or the use of the emails at trial. Dkt. 49, at 4. Defendant argues that the emails are inadvertently disclosed attorney work product and should be protected. Dkt. 49, at 4-7. Defendant argues that the emails should be returned to the United States and not be allowed to be used at trial. Dkt. 49, at 7.
Plaintiff argues, in his Reply, that the emails are not work product, and that even if the emails were work product, Defendant waived any immunity which would flow from this designation. Dkt. 51.
II. DISCUSSION
A. WORK PRODUCT
*3 The work product doctrine protects “from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.” United States v. Torf, 357 F.3d 900, 906 (9th Cir.2004)(citing Federal Rule of Civil Procedure 26(b)(3)). The “work product doctrine applies to documents created by investigators working for attorneys, provided the documents were created in anticipation of litigation.” Id. at 907; United States v. Nobles, 422 U.S. 225, 239, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975).
At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.
Id. The work product doctrine covers both “fact” work product and “opinion” work product. Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503, 507 (S.D.Cal.2003). “Fact work product consists of factual material that is prepared in anticipation of litigation or trial. In determining whether documents were prepared in anticipation of litigation, the court should consider whether the documents would not have been generated but for the pendency or imminence of litigation.” Id. (citing Griffith v. Davis, 161 F.R.D. 687, 698-99 (C.D.Cal.1995)) (internal quotations omitted). Material qualifies as opinion work product where the selection, organization, and characterization of facts reveals the theories, opinions, or mental impressions of a party or the party's representative. Id. “Opinion work product includes such items as an attorney's legal strategy, intended lines of proof, evaluation of the strengths and weaknesses of the case, and the inferences drawn from interviews of witnesses.” Id.
The subject emails are work product. They are documents which were created by an investigator working for attorneys at the United States Attorney's Office. These emails were created in anticipation of litigation. They were created in an effort to determine if Dr. Kane would be a good expert witness in either of the two cases. These emails contain impressions of counsel and reveal a possible litigation strategy: that the doctors did not need discuss the risks of specific injuries with Plaintiff. As a consequence, the emails are “opinion work product.”
Plaintiff's argument, that this case is similar to Grill v. Costco Wholesale Corp., 2004 WL 2314640 (W.D.Wash.2004) is unpersuasive. In Grill, the court found that “any privilege that may have existed [for emails between counsel and a potential expert] ... has been waived” for two reasons: 1) the email was forwarded to a list-serve, thus exposing the communication to “multiple third parties” and 2) the e-mail did not reveal any litigation strategy. Id. Here, unlike in Grill, the emails were not sent to multiple third parties, but were inadvertently sent only to opposing counsel, and the emails do reveal litigation strategy. The emails are work product.
2. Waiver
*4 Plaintiff, in his Reply, argues that even if the emails were originally protected as work product, Defendant waived protection of them. Dkt. 51, at 6-8. Although the requirements of waiver generally differ between the attorney-client privilege and the work product doctrine, there is no distinction where, as here, the alleged waiver was by a disclosure to the privilege holder's opponent in litigation. Transamerica Computer Co. v. International Business Machines Corp. ., 573 F.2d 646, 647 n. 1 (9th Cir.1978); In re Sause Brothers Ocean Towing, 144 F.R.D. 111, (D. Oregon 1991). The Ninth Circuit has not adopted a rule regarding the waiver of work product immunity or attorney-client privilege based on inadvertent disclosure. District courts within the Ninth Circuit have typically used a five factor test, which this Court finds to be a reasonable test. The factors are: “(1) the reasonableness of the precautions to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the ‘overriding issue of fairness.” ’ Bagley v. TRW, Inc., 204 F.R.D. 170, 177 (W.D.Cal.2001); Hartford Fire Insurance Co. v. Garvey, 109 F.R.D. 323, 332 (N.D.Cal.1985).
As to the first factor, no evidence was presented by either side regarding the reasonableness of the precautions to prevent inadvertent disclosure. Because the party asserting a privilege bears the burden of showing that it was not waived, Weil v. Investment/Indicators, Research Management, Inc., 647 F.2d 18, 25 (9th Cir.1981), this factor favors Plaintiff. The second factor, time taken to rectify the error, favors Defendant. Plaintiff did not contact the Defendant regarding the emails, but filed the present Motion. Defendant timely responded to the Motion and requested return of the emails. As to the third factor, Plaintiff concedes that the scope of the inadvertently disclosed discovery (two pages) is small in comparison to all discovery in this case. Dkt. 51, at 9. This factor favors Defendant.
The fourth factor, the extent of the disclosure, also favors Defendant. On the surface, these two emails are damaging. However, further examination reveals that the relevant portions are double hearsay and ambiguous. Ms. Gray stated she did not speak to the doctors involved in this matter. There is no evidence to the contrary. According to Ms. Gray, her statement in the May 11th email that “It does not appear that our surgeons discussed either the increased length of the surgery or the increased risk,” was based upon her review of the medical records. Dkt. 49, Ex. B., at 2. It is undisputed that the consent forms did not contain any reference to a conversation between the doctors and Plaintiff about the increased length of surgery or the increased risks. Ms. Gray stated her May 12themail comment that “even after our two incidents, at least one of them still would not warn,” may be in reference to a surgeon not involved in Mr. Banks care, but that she can not remember. Dkt. 49, Ex. B, at 2. It is important to remember that Ms. Gray was trying to locate an expert for two different cases. Ms. Gray indicated her May 12threpresentations of what “our guys” said was based on conversations with Mr. Lynch and Mr. Taylor and not the doctors involved in the two cases. Id. It is unclear to whom “our guys” refers. Mr. Lynch's memory of what the doctors told him, in Plaintiff's case, appears quite different. Dkt. 49, Ex. A. As a result, the extent of the disclosure was not extensive.
*5 As to the final factor, “overriding issue of fairness,” this Court finds in favor of Defendant. “A party to whom privileged documents are produced inadvertently ... has no inherent ‘fairness' interest in keeping them, unless the producing party waited so long to address the problem after having been informed of it that the receiving party reasonably changed its position in reliance upon their continued availability.” Bagley at 182. Plaintiff has not been aware of the existence of the emails for long. He could not have based much trial strategy on them. Plaintiff has been aware for sometime that consent would be a central issue in this case. Further, as soon as Defendant learned of the emails, it requested they be returned. Fairness dictates a finding in favor of Defendant, that is that no waiver took place.
3. Conclusion
The emails in this case reveal the thought processes of Defendant's counsel and so are work product. Considering the five factors in the above test, Defendant did not waive work product immunity for the emails when it inadvertently disclosed them to Plaintiff. Plaintiff should return the emails to Defendant and should not be able to use them at trial. Defendant's pleadings should not be stricken.
B. SUBORNATION OF PERJURY
Subornation of perjury is prohibited under federal law. 18 U.S.C.A. § 1622. In his Motion, Plaintiff states the information inadvertently obtained appears to suggest subornation of perjury by defense counsel and/or perjury by Dr. Porter and Dr. Penson. Dkt. 45, at 9. However, Plaintiff does not dispute Mr. Lynch's statement that he did not suborn perjury in this matter. Plaintiff attempts to point out inconsistencies in what is in the emails and what Mr. Lynch reports the doctors told him. As stated above, the content of both emails is a result of double hearsay and is ambiguous. This is an example of why hearsay is traditionally not permitted into evidence. There are ample possibilities to explain the differences in possible testimony, including that Ms. Gray misunderstood Mr. Lynch or she was referring to statements regarding the other case. There is no evidence to support a charge of subornation of perjury. Defendant's pleadings should not be stricken.
III. ORDER
Therefore, it is ORDERED that
Plaintiff's Motion (Dkt.45) is GRANTED in part and DENIED in part. In so far as the Court will direct Plaintiff regarding the emails the Motion is GRANTED: Plaintiff is directed to immediately return the emails to Mr. Lynch. The Motion is DENIED in that Defendant's pleadings will not be stricken and Plaintiff is not permitted to use the content of these emails at trial.
The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.