Cooper Hospital/University Medical Center v. Sullivan

183 F.R.D. 135, 1998 U.S. Dist. LEXIS 19476, 1998 WL 801322
District Court, D. New Jersey·Decided October 29, 1998·No. Civ.A. Nos. 96-5416, 96-3182·Published·Cited by 3 cases

Opinion

ORLOFSKY, District Judge.

Plaintiffs, Cooper Hospital/University Medical Center, Cooper Healthcare Services, Inc., and Cooper Data Services Corporation (collectively “Cooper”), have moved before this Court for a protective order seeking to prevent Defendant, KPMG Peat Marwick, LLP (“Peat Marwick”), Defendant, Alan B. Reed, and Defendants, Flex/sys Corporation, Flex/sys Technology Corporation, Flex/sys (New Jersey) Corporation, Flex/sys Data Corporation-Cherry Hill, Donald G. Fellner, and Walter I. Tanenbaum (collectively “Flex/ sys”), from publicly commenting upon or disseminating a document entitled “Report of the Ad Hoc Internal Control Committee of the Board of Trustees: The Cooper Health [138]*138System” (“Report”),1 which this Court ordered Cooper to produce in Cooper Hospital/University Medical Center, et al. v. Sullivan, et al., 183 F.R.D. 119, 129 (D.N.J.1998) (“Cooper I”).2

This motion for a protective order represents Cooper’s third bite at the apple in an unabashed attempt to delay and forestall the inevitable disclosure of the Report to Peat Marwick.3 First, Magistrate Judge Robert B. Kugler ordered Cooper to produce the Report, denying its application for a protective order. See Cooper I, 183 F.R.D. at 125-126. Second, Cooper appealed to this Court from that part of the Magistrate Judge’s order compelling production of the Report, but not, ironically, the denial of its application for a protective order. See id. at 126. In Cooper I, I affirmed Magistrate Judge Kugler’s decision. I stayed my Order compelling Cooper to produce the Report for fifteen days, because Cooper’s counsel requested an opportunity to seek a protective order on “unspecified grounds.” In staying my Order of October 15, 1998, I directed Cooper and Peat Marwick to brief the question of why a protective order based on “unspecified grounds” had not been waived by Cooper’s failure to present these grounds to Magistrate Judge Kugler in the first instance.

Although Cooper now states that it intends “to make the Report available to the public along with a written statement on November 3, 1998[,]” it seeks a protective order from this Court to prevent Peat Marwick from “tak[ing] a public position with respect to the Report or otherwise engaging] in a public trial of the issues against Cooper and its management based on the Report.” See Affidavit of Terrence W. Camp, Esq. (dated Oct. 23, 1998), 11112, 11. In support of this motion, Cooper has all but ignored this Court’s order to brief the issue of waiver, failed to address controlling adverse authority, and advanced what can only be described as a frivolous argument to restrict Peat Mar-wick’s First Amendment rights. Notwithstanding my earlier admonition to Cooper’s counsel not to engage in “dilatory tactics,” See Cooper I, 119 F.R.D. at 134. Cooper has persisted in its “stonewalling.” Cooper’s intransigence brings to mind what Justice Brandéis once observed in a similar context: “Sunlight is said to be the best of disinfectants .... ” Louis D. Brandeis, Other People’s Money 62 (1933). For the reasons set forth below, Cooper’s motion for a protective order will be denied.

I. BACKGROUND

The facts and convoluted procedural history culminating in Cooper’s second motion for a protective order are set forth in detail in this Court’s October 15,1998, opinion, Cooper Hospital/University Medical Center, et al. v. Sullivan, et al., 183 F.R.D. 119, 121-122 (D.N.J.1998), and, therefore, shall not be repeated here.

[139]*139In response to a federal criminal investigation into an embezzlement scheme perpetrated by former Cooper executives, Cooper’s Board of Trustees appointed an Ad Hoc Committee (“Committee”) to review Cooper’s internal financial procedures and controls. See id. at 122-123. The Committee employed the forensic accounting firm of Nihill & Reidley to review Cooper’s financial documents, and the law firm of Saul, Ewing, Remick & Saul, LLP, as special counsel, to compile the Report. See Cooper I, 183 F.R.D. at 122-123. The “Report was completed in November, 1996, and submitted to Cooper’s Board of Trustees in January, 1997. ” Id.

On December 12, 1997, in its initial disclosures, Cooper identified the Report as a privileged document. See Cooper I, 183 F.R.D. at 125-126. Peat Marwick, Flex/sys and Alan B. Reed moved before Magistrate Judge Kugler to compel production of the Report. See id. In response, Cooper:

opposed the joint application to compel production of the Report, arguing that the Report was protected by the work-product doctrine and the attorney-client privilege. In addition, Cooper filed a cross-application seeking a protective order on the grounds that the Report contained commercially sensitive material which was the product of self-critical analysis.

Cooper I, 183 F.R.D. at 125-126 (internal citations and footnote omitted). On May 7, 1998, Magistrate Judge Kugler granted the motion to compel production of the Report, and denied Cooper’s cross application for a protective order. See id.

On May 22, 1998, Cooper appealed the Magistrate Judge’s decision to this Court. See Cooper I, 183 F.R.D. at 126. “Specifically, Cooper appealed] from that portion of Magistrate Judge Kugler’s order which [held] in pertinent part that ‘Cooper and the [United States and the State of New Jersey] were adversaries and thus the disclosure [of the Report] to the government resulted in the waiver of any work-product privilege which might have been asserted.’ ” Id. (quoting Plaintiffs’ Notice of Appeal (filed May 22,1998)). Cooper did not appeal “from the denial of its cross-application for a protective order based on the grounds that the Report contained commercially sensitive material, or the denial of its cross-application for a protective order based upon the assertion of the self-critical analysis privilege.” Cooper I, 183 F.R.D. at 126.

On October 15,1998,1 affirmed Magistrate Judge Kugler’s decision, holding:

because the magistrate judge’s predicate finding, that the United States and the State of New Jersey were Cooper’s adversaries at the time the Report was disclosed, is not clearly erroneous, the magistrate’s subsequent finding that Cooper waived the work-product privilege as to all adversaries is not clearly erroneous or contrary to law. Therefore, Magistraté Judge Kugler’s order compelling Cooper to produce the Report will be affirmed.

Cooper I, 183 F.R.D. at 132. In addition, “I [held] that Magistrate Judge Kugler’s order compelling production of the Report must also be affirmed on the independent ground that the Report was not prepared primarily in anticipation of litigation[;]” and thus, ab initio, the Report was not shielded from discovery by the work-product privilege. Id. at 132-133.

In Cooper I, I also discussed the correspondence I received from Cooper’s counsel prior to deciding the appeal from Magistrate Judge Kugler’s order compelling production of the Report. See Cooper I, 183 F.R.D. at 132-135. I wrote:

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Cooper Hospital/University Medical Center v. Sullivan, 183 F.R.D. 135, 1998 U.S. Dist. LEXIS 19476, 1998 WL 801322 (D.N.J. 1998).

183 F.R.D. 135 (Cooper Hospital/University Medical Center v. Sullivan) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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