United States v. Davita, Inc.

301 F.R.D. 676, 2014 U.S. Dist. LEXIS 119647, 2014 WL 4116590
CourtDistrict Court, N.D. Georgia
DecidedMarch 31, 2014
DocketCivil Action No. 1:07-CV-2509-CAP-JSA
StatusPublished
Cited by21 cases

This text of 301 F.R.D. 676 (United States v. Davita, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Davita, Inc., 301 F.R.D. 676, 2014 U.S. Dist. LEXIS 119647, 2014 WL 4116590 (N.D. Ga. 2014).

Opinion

ORDER

JUSTIN S. ANAND, United States Magistrate Judge.

Plaintiffs have challenged Defendants’ withholding of approximately 2,000 documents on grounds of attorney-client privilege and/or attorney work product. Plaintiffs argue that Defendants’ designations are inadequate and fail to establish the privileged nature of the withheld documents. Plaintiffs thus move to compel production [437]. Defendants oppose Plaintiffs’ Motion. See Def. Resp. [447]. Defendants provided the Court with copies of the documents at issue for an in camera review along with ex parte copies [680]*680of several declarations in support of certain claims of privilege.

The Court has completed its doeument-by-document in camera review, and hereby GRANTS IN PART and DENIES IN PART Plaintiffs’ Motion to Compel [437] with regard to the documents Defendants have withheld as privileged.1 The Court attaches several tables that reflect its individual rulings on the contested items. The Court cannot and has not provided individualized discussion of every document. Rather, the Court will use the body of this Order to discuss certain overall legal standards that the Court applied and how the Court handled certain specific, repeating issues.2

The Court’s summary treatment of the majority of the contested documents is necessitated by the sheer volume of the material in question. The Court reviewed approximately 2,000 documents held in over 20 binders that is described in several privilege and redaction logs totaling nearly 250 pages. Thus, it is not possible for the Court to articulate every consideration and every issue raised during its very lengthy and complicated in camera review. The Court has attempted to strike a balance between providing as much analysis as reasonably possible while at the same time efficiently accomplishing the review and rendering rulings so as to not further delay this case.

I. GENERAL LEGAL STANDARDS

A. The Attorney-Client Privilege, Generally

Under Federal Rule of Civil Procedure 26, “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.” Fed.R.Civ.P. 26(b). “ ‘The attorney-client privilege exists to protect confidential communications between client and lawyer made for the purpose of securing legal advice.’ ” In re Grand Jury Proceedings 88-9 (MIA), 899 F.2d 1039, 1042 (11th Cir.1990) (quoting In re Grand Jury Subpoena of Slaughter, 694 F.2d 1258, 1260 (11th Cir.1982)). Recognition of the attorney-client privilege is intended to encourage frank communication with an attorney. See Swidler & Berlin v. U.S., 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998).

The party claiming the privilege bears the burden of proving the existence of the privilege. See, e.g., In re Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1225 (11th Cir.1987). The party claiming the privilege must generally establish the following elements: (1) the holder of privilege is a client; (2) the person to whom communication was made is a member of the bar and that person is acting as a lawyer in connection with the communication; (3) the communication relates to a fact of which attorney was informed by the client without the presence of strangers for the purpose of securing legal advice; and (4) the privilege is claimed and not waived by the client. See In re Grand Jury Proceedings 88-9 (MIA), 899 F.2d at 1042.

B. Corporate Communications

The application of the attorney-client privilege to internal corporation communications [681]*681is a subject of much litigation and is the crux of many of the legal issues before the Court on this motion. It has long been determined that corporations are entitled to invoke the attorney-client privilege. See Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348, 105 S.Ct. 1986, 85 L.Ed.2d 372 (1985) (“It is by now well established ... that the attorney-client privilege attaches to corporations as well as to individuals.”). But the exact scope of that privilege is more controversial in certain scenarios, including where communications are copied to lawyers and non-lawyers within a corporation; where lawyer advice may be discussed among non-lawyers; or where an in-house (or outside) lawyer provides both legal and business advice. The Court discusses the standards it has applied in this case in the pages that follow.

C. In Camera Review

In camera review is not appropriate merely because a party objects to the assertions of privilege. See U.S. v. Zolin, 491 U.S. 554, 571-572, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989). And it is not a basis upon which any party can shift a burden to the Court that they should bear themselves. Nevertheless, where there is a sufficient evidentiary showing that an issue exists regarding the application of a privilege, the court must utilize its discretion as to whether in camera review is appropriate under the circumstances presented. See id.

Here, Plaintiffs make a prima facie showing, among other things, that Defendants have withheld many hundreds of communications among employees about medical, billing and financial issues, some of which communications do not involve attorneys at all, and many of which involve only in-house attorneys allegedly serving legal and nonlegal functions. As discussed below, the Court disagrees with Plaintiff that entire categories of such documents can be denied privileged status as a matter of law, based solely on the descriptions. Rather, as discussed below, the only way to effectively review many of the assertions of privilege in this case is to undertake a doeument-bydocument in camera review. The Court has done so, applying the legal standards identified herein.

II. ANALYSIS

A. Communications Among Non-Lawyers

First, to the extent Plaintiffs argue that an internal corporate communication is necessarily non-privileged because it was between non-attorney employees, see PI. Brf. [437-1] at 12, the Court rejects that assertion. As a general matter,

simply because a communication is made between two corporate employees, neither of whom are attorneys, that fact is not determinative of whether that communication primarily involves business advice rather than legal advice for purposes of applying the attorney-client privilege to that correspondence.

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301 F.R.D. 676, 2014 U.S. Dist. LEXIS 119647, 2014 WL 4116590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-davita-inc-gand-2014.