Bailey v. Oakwood Healthcare, Inc. d/b/a Oakwood Hospital & Medical Center
2:15-cv-11799
E.D. Mich.Apr 25, 2017Background
- Plaintiff Michelle H. Bailey attached two pages of handwritten notes (taken by Oakwood HR Director David Squire from a call with in-house counsel Patrice Baker) to her response to Defendant Oakwood Healthcare's amended summary judgment motion.
- Defendant moved to strike those notes, asserting they were protected by the attorney-client privilege and had not been waived.
- The Court previously granted Defendant's motion to strike, holding the notes privileged, not waived in discovery, and not excepted as relating to fraud or a serious crime.
- Bailey filed a motion for reconsideration, arguing Oakwood waived privilege by failing to mark the notes "CONFIDENTIAL" under the parties' Stipulated Protective Order and by delay in asserting the privilege.
- The Protective Order contained a clause stating inadvertent production of privileged documents does not waive privilege and required return of inadvertently produced privileged material.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Oakwood waived attorney-client privilege by not marking the notes as "CONFIDENTIAL" under the Protective Order | Failure to stamp the notes as confidential constitutes waiver | Protective Order treats inadvertent disclosure of privileged material separately and preserves privilege despite lack of "CONFIDENTIAL" designation | No waiver; Protective Order preserves privilege for inadvertently produced privileged documents |
| Whether delay in asserting privilege after discovery amounted to waiver | Delay and failure to designate indicate waiver | Invocation of privilege when opposing party sought to use the notes as substantive evidence is timely under controlling precedent | No waiver; timing did not defeat privilege |
Key Cases Cited
- Rainer v. Union Carbide Corp., 402 F.3d 608 (6th Cir.) (protective order can prevent waiver from inadvertent production of privileged documents)
- Quinn v. Griffith, [citation="515 F. App'x 543"] (6th Cir.) (invoking privilege once it is clear opposing party intends to use documents may not be a waiver)
- Ososki v. St. Paul Surplus Lines Ins. Co., 162 F. Supp. 2d 714 (E.D. Mich.) (definition of "palpable defect" and standard for reconsideration motions)
- Ford Motor Co. v. Greatdomains.com, Inc., 177 F. Supp. 2d 628 (E.D. Mich.) (motions for reconsideration will not relitigate issues already decided)