414 P.3d 1004
Utah Ct. App.2018Background
- Dr. Eldad Vered sued Tooele Hospital and related parties alleging breach of contract, defamation, and interference with economic relations; discovery disputes followed after he served requests in Feb 2014.
- Defendants produced a privilege log four days before a scheduled hearing listing 119 documents as withheld under the care-review privilege; descriptions on the log were terse and generic.
- At the October 2014 hearing Vered challenged the log as failing to provide an adequate evidentiary basis showing the documents were prepared specifically for care-review; the district court ordered production, stating the defendants had not shown the privilege applied and said the door was closed to further foundation evidence.
- Defendants moved for reconsideration, submitted a Quality Director affidavit asserting the documents were gathered for care/peer review, and relied on the Utah Supreme Court’s Allred decision clarifying privilege-log standards; the district court again found the log inadequate and affirmed production.
- Defendants appealed, arguing (1) the court improperly treated failure to provide an affidavit as waiver of the privilege, (2) the court should have conducted in camera review before ordering production, and (3) Vered failed to comply with meet-and-confer discovery procedures.
Issues
| Issue | Vered's Argument | Defendants' Argument | Held |
|---|---|---|---|
| Whether defendants waived or failed to prove the care-review privilege by not providing an affidavit or adequate foundation | The party asserting the privilege must supply an adequate evidentiary basis (e.g., affidavit or detailed log) showing documents were prepared specifically for care-review | No affidavit was required; the privilege log sufficed and the court wrongly treated lack of affidavit as waiver | Court: No affidavit requirement was imposed; defendants bore the burden to provide sufficient foundational information and their log was inadequate, so privilege not shown |
| Whether the district court abused discretion by not conducting in camera review before ordering production | In camera review may be required when a prima facie showing exists; but parties must first supply a sufficient privilege log | Court should have done in camera review regardless of log deficiencies | Court: In camera review is discretionary and typically follows a sufficient privilege log; because defendants failed to provide sufficient foundation, no abuse of discretion in declining in camera review |
| Whether Vered had to complete meet-and-confer procedures before the court ruled on the log | Vered objected at the hearing after receiving the late log and pursued court intervention | Vered failed to meet-and-confer as required and the dispute was not ripe | Court: Defendants controlled timing by producing the log late; objections were made when log was presented; district court did not abuse discretion in not enforcing meet-and-confer here |
Key Cases Cited
- Wilson v. IHC Hosps., Inc., 289 P.3d 369 (Utah 2012) (care-review privilege covers documents prepared specifically for review; not all medical records qualify)
- Allred v. Saunders, 342 P.3d 204 (Utah 2014) (in camera review is not always required; parties must provide a privilege log with sufficient foundational information to assess claims)
- Cannon v. Salt Lake Reg’l Med. Ctr., Inc., 121 P.3d 74 (Utah Ct. App. 2005) (affidavit may create a prima facie showing but may be insufficient; remand for in camera review if prima facie established)
- Benson ex rel. Benson v. I.H.C. Hospitals, Inc., 866 P.2d 537 (Utah 1993) (explains purpose and scope of care-review and peer-review privileges)