Jackson v. Ethicon, Inc.Jackson v. Ethicon, Inc.
- Reporters:
- ,
- Before:
- Matthew A. Stinnett
This matter arises out of a subpoena served on non-party law firm Hughes & Coleman, PLLC seeking materials related to Plaintiff Tammy Jackson‘s consultation with the firm prior to initiation of this case. Hughes & Coleman resists the document requests on privilege grounds, and Defendants Ethicon, Inc., and Johnson & Johnson (collectively, “Ethicon“) move to compel subpoena compliance. For the reasons discussed in this opinion, the Court finds the asserted privilege applicable to some identified documents, but inapplicable to others. Thus, the Court grants in part and denies in part the motion to compel as here outlined. The Court further directs Hughes & Coleman to respond more fully to the subpoena, as discussed infra.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Tammy Jackson and her husband, Bryon Jackson, (“the Jacksons“) brought suit against Ethicon, Johnson & Johnson, and several other since-dismissed entities in July 2012 as a part of the pelvic mesh multidistrict litigation (“MDL“) then pending in the Southern District of West Virginia. [DE 1]. Tammy Jackson alleged that she received a pelvic mesh implant (specifically, a Gynecare TVT device) in May 2007, designed to treat stress urinary incontinence and related conditions. [Id., ¶¶ 60–66]. She further avers that the TVT mesh implant,
In August 2017, after significant global discovery in the MDL but before case-specific discovery occurred under the pretrial scheduling order, the case went on the MDL‘s inactive docket because the parties advised they had agreed to a general settlement. [DE 48]. But the settlement never materialized, and, in February 2020, the Southern District of West Virginia transferred the case to this District for individualized discovery and further case progression. [DE 38, 40]. Per Ethicon, a central defense it intends to pursue is that Kentucky‘s one-year statute of limitations governing personal injury suits bars the Jacksons’ claims. To explore the defense, Ethicon maintains that it requires records related to the Jacksons’ first contacts with Hughes & Coleman that are solely in Hughes & Coleman‘s possession.
Ethicon highlights unclear and arguably inconsistent proof (absent Hughes & Coleman‘s records) concerning the accrual timing of Plaintiffs’ claims, citing a Social Security Disability (“SSD“) claim alleging that Tammy Jackson ceased work in February 2011 because of her TVT mesh issues, at least in part. [DE 83-3]. The Social Security application lists Hughes & Coleman as a source of medical information related to the SSD claim, with first contact occurring on an
In January 2021, Ethicon served a third-party documents subpoena on Hughes & Coleman, specifically requesting:
Any and all retention agreements and/or engagement agreements between Hughes & Coleman, PLLC and Jackson, including the general purpose of work to be performed, fee arrangement with Jackson, the date of retention, and arrangement for payment and/or advancement of costs.
Any and all client intake questionnaires completed by Jackson.
Any and all invoices, billing records, cost records, and payment receipt records reflecting fees billed for work performed by Hughes & Coleman, PLLC on behalf of Jackson and fees paid by Jackson to Hughes & Coleman, PLLC.
Any document evidencing the referral of Jackson to Skikos, Crawford, Skikos & Joseph LLP.
II. LEGAL FRAMEWORK
The parties accurately agree that the Court must apply Kentucky law to resolve the attorney-client privilege claims the Jacksons raise. See In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir. 2006) (“In a diversity case, the court applies . . . state law to resolve attorney-client claims.);3
Kentucky Rule of Evidence (“KRE“) 503 governs the Commonwealth‘s equivalent of the attorney-client privilege (here termed the lawyer-client privilege). It safeguards a client‘s ability “to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client[.]”
Between the client or a representative of the client and the client‘s lawyer or a representative of the lawyer;
Between the lawyer and a representative of the lawyer; By the client or a representative of the client or the client‘s lawyer or a representative of the lawyer representing another party in a pending action and concerning a matter of common interest therein;
Between representatives of the client or between the client and a representative of the client; or
Among lawyers and their representatives representing the same client.
Critically, “the privilege ‘protects only those disclosures necessary to obtain legal advice which might not have been made absent the privilege and is triggered only by a client‘s request for legal, as contrasted with business, advice.” Univ. of Kentucky v. Lexington H-L Servs., Inc., 579 S.W.3d 858, 864 (Ky. Ct. App. 2018) (quoting Lexington Pub. Library v. Clark, 90 S.W.3d 53, 60 (Ky. 2002) (cleaned up)). Determining whether the privilege applies is a two-prong inquiry. “First, the statements must actually be confidential, meaning they are ‘not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.‘” Id. (quoting Collins v. Braden, 384 S.W.3d 154, 161 (Ky. 2012)). Disclosure of a covered to a communication to a third-party may result in waiver of the privilege. See 3M Co. v. Engle, 328 S.W.3d 184, 189 (Ky. 2010). “Second, the statements must be made for the purpose
“[T]he burden is on the party claiming the privilege to prove that it exists as to the communications so claimed.” The St. Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771, 775 (Ky. 2005) (footnote omitted); accord In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 454 (6th Cir. 1983). See also Reynolds, 2016 WL 7330067, at *3 (“[I]t is the proponent‘s duty to offer sufficient detail to each supposedly privileged document to persuade the court that the information in question is not discoverable.“). Though intended to facilitate free and open communication between attorney and client, “the privilege is narrowly construed because it reduces the amount of information discoverable during the courts of the lawsuit.” Carr v. Lake Cumberland Reg‘l Hosp., No. CV 15-138-DLB-HAI, 2017 WL 5490916, at *2 (E.D. Ky. Nov. 15, 2017) (quoting United States v. Collis, 128 F.3d 313, 320 (6th Cir. 1997)); see id. (citing Frankfort Reg‘l Med. Ctr. v. Shepherd, No. 2015-SC-000438-MR, 2016 WL 3376030, at *12 (Ky. June 16, 2016)). “[A] claim of privilege can be defeated by proof by a preponderance of the evidence . . . that the privilege has been waived or that the communication or material is either outside the scope of . . . the privilege[.]” Stidham v. Clark, 74 S.W.3d 719, 727 (Ky. 2002). However, once its applicability to the at-issue communication is established, the attorney-client privilege “may not be overcome by a showing of need by an opposing party to obtain the information contained in the privileged communication.” St. Luke Hosps., 160 S.W.3d at 777.
One method of establishing by a preponderance of the evidence that a particular communication is outside of the privilege scope is via in camera review. “[A] lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege.” Stidham, 74 S.W.3d at 727 (quoting United States v. Zolin, 491 U.S. 554, 572 (1989),
such factors as the volume of materials the court is asked to review, the relative importance of the alleged privileged materials to the case, and the likelihood that the evidence produced by an in camera review, together with other available evidence then before the court, will establish that the privilege has been waived or that the communication or material is either outside the scope of the privilege or within a specified exception to the privilege.
III. ANALYSIS
Hughes & Coleman produced a privilege log identifying and describing the documents in its possession that it has deemed responsive to Ethicon‘s subpoena. [DE 89-1]. The log lists five documents, asserting that all protected by the attorney-client privilege:
- September 9, 2011 – Party Information Needles Screen completed by Hughes & Coleman staff at time of initial call from Tammy Jackson
- September 9, 2011 – Case Tab Needles Screen completed by Hughes & Coleman staff at time of initial call from Tammy Jackson
- September 9, 2011 – Case Note Needles Screen injury questionnaire completed by Hughes & Coleman staff at time of initial call from Tammy Jackson
- September 16, 2011 – Transvaginal Mesh/Slings Fee Agreement signed and dated by Tammy Jackson
- October 10, 2011 – Case note indicating letter sent to Tammy Jackson to advise of Skikos as co-counsel
A. THE NEEDLES SCREENS4
The first three documents—the Party Information Needles Screen, the Case Tab Needles Screen, and the Case Note Needles Screen—are apparently responsive to Ethicon‘s request for client intake questionnaires. [DE 83-1, at Page ID # 820]. All three were completed on the same date (September 9, 2011) and ostensibly represent three components of Hughes & Coleman‘s initial client screening process. As a general matter, the Court views the overall intake process as undoubtedly part of the Jacksons’ pursuit of legal assistance from Hughes & Coleman. See Coneal v. Am. Com. Ins. Co., No. 518-CV-95-TBR-LLK, 2019 WL 4579291, at *8 (W.D. Ky. Sept. 20, 2019) (“Plaintiff clearly communicated the facts to her attorney in the Attorney Screening Form in the process of seeking legal advice.“); see also Matter of Search of Info. Associated with rickmaike@yahoo.com that is stored at premises controlled by YAHOO! Inc., No. 4:15-MJ-00042, 2020 WL 4373447, at *7–8 (W.D. Ky. July 10, 2020), report and recommendation adopted, 2020 WL 4369448 (W.D. Ky. July 30, 2020) (observing that under KRE 503 “[c]ommunications involving an attorney‘s representatives, including an attorney‘s support staff,” may be privileged and that the privilege may apply to initial consultations with prospective clients).
However, neither relevant authority nor the record here supports finding all three intake documents privileged. Importantly, the privilege “should be narrowly construed” in each case. Humphreys, Hutcheson & Moseley v. Donovan, 755 F.2d 1211, 1219 (6th Cir. 1985).5 “[I]t applies
Per the privilege log, the Party Information form includes precisely that—presumably biographical, demographic, contact, and other general, non-case-specific background information about the client. There is no indication or evidence that clients generally, or the Jacksons in particular, would be dissuaded from or reticent to disclose such general personal information absent an attorney-client privilege. The structure of the three Needles components further suggests that this initial Party Information section contains no communications actually related to the pursuit or receipt of case-specific legal advice. Based on a commonsense reading of the log‘s
As the Kentucky Supreme Court confirmed in the unpublished Reynolds case,6 client intake questionnaires are not automatically and categorically privileged. Reynolds, 2016 WL 7330067, at *3 (noting that “[c]lient intake questionnaires are not facially privileged” and that at least one court had characterized them as “often only incident to an attorney‘s representation and not confidential“). Though the Reynolds Court presumed “that privileged information may in fact be found in” a party‘s responses to such a questionnaire, it concluded that the privilege log did not so
A similar conclusion pertains here. The log does not demonstrate that the Party Information form contains privileged communications. Rather, the privilege log in fact indicates the opposite—that the Party Information questionnaire would not contain privileged information, given that Hughes & Coleman‘s Needles platform expressly separates the intake process into distinct biographical, case-specific, and injury-related sections. Accordingly, a preponderance of the available evidence shows that the Party Information form is outside of the attorney-client privilege scope. See Stidham, 74 S.W.3d at 727. The privilege‘s proponents in this case have not carried their burden of persuading the Court otherwise and, indeed, the privilege log itself supports the privilege‘s inapplicability. The Court thus will compel disclosure of the Party Information Needles Screen.
In contrast, and per the same reasoning, the Court finds that the privilege shields the Case Note and Case Tab Needles Screenings. With mere biographical and contact information—i.e., the client‘s identifying information and those clerical communications simply incident to the representation request—squarely carved out in their own questionnaire, the privilege log shows that the remaining intake forms surely include the substantive, case-specific factual communications that are critical and central to the representation request. The sort of information the log indicates such forms would contain is precisely what the privilege targets.
The substance of how Tammy Jackson communicated her legal dilemma to Hughes & Coleman in those forms, undoubtedly reflecting her descriptions of the injuries, her views as to the circumstances leading to them, and her perception of the legal problem she faced, is the crux of her effort to obtain legal representation and advice and, ultimately, to build her case with counsel
Nor does the Court view in camera review of the Case Tab or Case Note forms as warranted, in its discretion. The facts do not support a reasonable belief that such review would establish the forms’ nonprivileged nature. Ethicon has not pointed to specific, reliable evidence indicating such and satisfying the required threshold showing. In light of the evidence currently available, which in fact strongly supports the privileged nature of the Case Tab and Note questionnaires, the Court does perceive, as a threshold matter, any meaningful likelihood that in camera review would establish that these communications are outside of the privilege‘s scope. See Stidham, 74 S.W.3d at 727.
Ultimately, the privilege log in this case and the record as a whole permit—indeed, require—the Court to dissect the identified document sets with a scalpel, separating mere identification data from substantive communications about the underlying legal problem. Analogous case law supports such careful delineation along this line. The Court eschews any broad or generic privilege finding as to client intake questionnaires, generally. The key is communication content, insofar as the privilege log and other evidence illuminates it, and the Court narrowly tailors the result here accordingly. The record supports compelling disclosure of the
The Court thus GRANTS in part and DENIES in part Ethicon‘s motion to that extent.
B. THE FEE AGREEMENT
In response to the subpoena, Hughes & Coleman also identified a fee agreement governing Tammy Jackson‘s retention of the firm in relation to the pelvic mesh matter. Foundationally, the fact of representation and the attorney fee arrangement are not themselves privileged. See Humphreys, 755 F.2d at 1219 (noting that attorney‘s fees are not privileged); Reynolds, 2016 WL 7330067, at *3 (“reaffirm[ing] that the mere fact of representation is not privileged“); see also In re Grand Jury Subpoena, 204 F.3d 516, 520 (4th Cir. 2000) (quoting In re Shargel, 742 F.2d 61, 63 (2d Cir. 1984) (explaining that communications revealing only “fee information stand on a footing different from communications intended by the client to explain a problem to a lawyer in order to obtain legal advice“). The Jacksons concede that the underlying facts of the general representation nature and of the fee agreement are discoverable, but, relying on Coneal, argue that Ethicon must discover them in some manner other than through the fee agreement document. See 2019 WL 4579291, at *10 (“Defendant is entitled to the amount of the fee and the general nature of the representation, but not the communications contained in the contingency fee agreement.“).
The Coneal decision, however, does not clarify its basis for treating the fee agreement communications there at issue as presumptively privileged; rather, the analysis proceeds from the default position that the fee agreements (and engagement letter) contained privileged communications, without explaining how or why the court concluded that any communications within those particular documents were in fact made for the purpose of obtaining legal advice in a manner contemplated by the privilege. See, Coneal, 2019 WL 4579291, at *11 (referencing the fee agreements at issue as among those that “clearly fit within the scheme” contemplated by KRE
Like the federal attorney-client privilege, Kentucky‘s variant is fundamentally intended to preserve clients’ willingness to share information freely and honestly with their lawyers so that lawyers may offer complete and accurate advice, furthering the overall goal of administering justice. See Univ. of Kentucky, 579 S.W.3d at 864 (characterizing the privilege as essential to protect “disclosures necessary to obtain legal advice which might not have been made absent the privilege“); accord Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (observing that the privilege promotes “full and frank communication between attorneys and their clients” and, as a result, too promotes “broader public interests in the observance of law and the administration of justice“); Reed v. Baxter, 134 F.3d 351, 356 (6th Cir. 1998) (“[T]he privilege encourages clients to make full disclosure to their lawyers, and [a] fully informed lawyer can more effectively serve his client.“) (internal quotation marks omitted).7 Consequently, a faithful application of the privilege centers on the purpose of the communication, based on the available proof of its content, and its role in the client‘s overall pursuit of legal advice. As Coneal recognized, the primary question is ultimately whether “the ’dominant purpose’ [of the communication] was transmission to an attorney for rendition of legal services[.]” 2019 WL 4579291, at *11 (quoting Haney v. Yates, 40 S.W.3d 352, 354-55 (Ky. 2000)) (emphasis added).
Though fee agreements are undoubtedly critical to establishing and structuring the legal representation relationship, they are accurately characterized—like the exchange of basic identification or contact information—as incidental to the actual exchange of legal advice or disclosures necessary to render such advice. Cf. Coneal, 2019 WL 4579291, at *11 (concluding that a document other than a fee agreement was nonprivileged because its “dominant purpose” was “not to secure specific legal advice or a discussion of a specific legal issue“). The privilege log does not show that the fee agreement‘s “purpose” was to facilitate legal advice. Accordingly, the Court finds the second prong of the privilege test unmet, and Plaintiffs’ burden of establishing privilege applicability unsatisfied. See Reynolds, 2016 WL 7330067, at *3 (“Reynolds must do more than simply provide document titles and declare the entirety of their contents privileged. The types of forms involved in this case themselves are not per se privileged, so we need some explanation of the substantive contents before we can authoritatively find the documents not discoverable.“); id. (emphasizing the “presumption against privileged evidence” and stating:
The Court thus GRANTS Ethicon‘s motion to compel disclosure of the fee agreement.
C. THE SKIKOS REFERRAL CASE NOTE
Lastly, the Court considers the case note in Tammy Jackson‘s file with Hughes & Coleman indicating that the firm had sent her a letter discussing Skikos‘s retention as co-counsel.8 There is negligible evidence in the record about the substance, length, or purpose of the case note. The parties do not dispute that the communication is between parties covered by KRE 503; the question, rather, is whether the communication‘s dominant purpose is to obtain legal advice about the Jacksons’ case. Plaintiffs devote relatively little argument to the case note, but they argue that it was “made for the purpose of facilitating the pursuit of the Jacksons’ lawsuit and to secure additional counsel to litigate it.” [DE 90, at Page ID # 902].
The Court views this cursory contention as inadequate to demonstrate that the privilege applies to the note. Based only on the brief description in the privilege log, it seems likely that the central purpose of the case note was simply to document the transmission of correspondence to the Jacksons indicating that Skikos would be joining as co-counsel. This appears to be only a record-keeping mechanism denoting a procedural step in the case. It is not at all clear, on the current record, that the case note contained any communication that either constituted legal advice or that was made for the purpose of facilitating such advice. See Coneal, 2019 WL 4579291, at *11 (finding letters between the plaintiff and a firm relating to specific counsel selection nonprivileged because the “dominant purpose of these underlying communications was the
As emphasized throughout, it is Plaintiffs’ burden to demonstrate privilege application. St. Luke Hosps., 160 S.W.3d at 775; Collins, 384 S.W.3d at 164 (finding that the privilege‘s proponent had not met its burden where, “[w]ithout more certainty about the content of [the] documents, a reviewing court [could not] determine whether any statements [were] even in the documents or whether any statements [were] covered by the privilege“).9 On this record, they have not met their burden. The Court thus GRANTS Ethicon‘s motion to the extent it seeks compelled disclosure of the case note.
D. PRIVILEGE LOG SUPPLEMENTATION
In its reply, Ethicon additionally challenged the privilege log‘s omission of any documents responsive to the subpoena‘s requests that related to Tammy Jackson‘s SSD claim. [DE 91]. Ethicon has presented some evidence that such documents may exist. Tammy Jackson testified that her initial consultation with Hughes & Coleman related to the SSD claim. [DE 83-5, at Page ID # 858–59]. Thus, the record offers some support that Hughes & Coleman may have documentation in its possession that is both responsive to the subpoena and related to the SSD claim, rather than the products liability suit.
The record further supports the potential relevancy of documentation pertaining to the SSD claim. Tammy Jackson‘s SSD application identifies her TVT mesh implant as the source of her disability and the reason for her inability to continue working. [DE 83-3, 83-4]. The Federal Rules permit parties to “obtain discovery regarding any nonprivileged matter that is relevant to any
Accordingly, the Court will order Hughes & Coleman to produce any nonprivileged documents related to its SSD contacts with the Jacksons that are responsive to Ethicon‘s subpoena. To the extent Hughes & Coleman or Plaintiffs perceive any responsive documents as privileged, they should produce a privilege log demonstrating privilege applicability. If disputes arise, the parties may seek further judicial guidance.
IV. CONCLUSION
As thoroughly discussed in this Opinion, the Court ORDERS as follows:
- The Court GRANTS DE 83 insofar as it seeks the Party Information Needles Screen, the Transvaginal Mesh/Slings Fee Agreement, and the case note regarding the Skikos referral letter, and it COMPELS production of those identified documents (Privilege Log Entry Nos. 1, 4, and 5);
- The Court DENIES DE 83 insofar as it seeks the Case Tab Needles Screen and the Case Note Needles Screen (Privilege Log Entry Nos. 2 and 3); and
- The Court ORDERS Hughes & Coleman to respond more fully to Ethicon‘s subpoena; the firm shall produce all responsive and nonprivileged documents related to the SSD claim. To the extent Hughes & Coleman claims that any responsive document is privileged, it shall produce an adequate privilege log.
The undersigned enters this Memorandum Opinion pursuant to
Entered this 25th day of May, 2021.
Signed By:
Matthew A. Stinnett
United States Magistrate Judge