Allred v. Saunders, 342 P.3d 204

Plaintiffs allege malpractice by Dr. Saunders during lithotripsy on Lisa Allred and seek discovery of Dr. Saunders’ credentialing file and Hospital incident file.
District court denied protection for the credentialing file and ordered in camera review of the incident file under Cannon v. Salt Lake Regional Medical Center.
Initial disagreement centers on whether Utah’s peer-review and care-review privileges apply to discovery, given past constitutional concerns and legislative amendments.
Legislature amended rule 26 in 2012 to create an evidentiary privilege covering care-review and peer-review materials in discovery and admissibility.
Court holds that rule 26(b)(1) creates an evidentiary privilege, vacates prior rulings, and remands for application of the amended rule with proper privilege logs and in camera review procedures as appropriate.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does amended Rule 26(b)(1) create a freestanding privilege?	Plaintiff argues no new privilege; relies on prior statutes.	Saunders/Hospital contend amended Rule 26 creates a new privilege.	Yes, Rule 26(b)(1) creates an evidentiary privilege.
Was the district court incorrect to rely on former 26-25-3 alone to assess discoverability?	Reliance on old statute is insufficient after 2012 amendment.	District court correctly considered the older framework for privilege.	District court erred; must apply amended Rule 26(b)(1).
Should in camera review be required on remand?	In camera review may be unnecessary if privilege applies to requested material.	In camera review is appropriate when privilege is uncertain.	In camera review not mandatory in all cases; discretionary after proper foundation.
What procedure on remand ensures proper privilege application?	Privilege logs and individualized showing are unnecessary if privilege clearly applies.	Need detailed logs and foundational information.	Remand with requirement of privilege logs and individualized foundation; district court may review in camera if warranted.
Does the privilege extend to credentialing and incident files?	Credentialing file not clearly within privilege; incident file uncertain.	Both may be protected under amended Rule 26(b)(1).	Rule 26(b)(1) creates privilege; remand to determine applicability to both files.

Cannon v. Salt Lake Reg’l Med. Ctr., Inc., 121 P.3d 74 (Utah Ct. App. 2005) (discusses in camera review as a potential default approach for privilege)
Benson ex rel. Benson v. I.H.C. Hosps., Inc., 866 P.2d 537 (Utah 1993) (former scope of care-review privilege; discovery implications)
Salt Lake Legal Defenders Ass’n v. Uno, 932 P.2d 589 (Utah 1997) (work-product and related privileges in Utah.)
Torrie v. Weber Cnty., 309 P.3d 216 (Utah 2013) (separation of powers and statutory-vs-rule amendments context)