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Keywords

attorneydiscoveryharassmentattorney-client privilegework-product doctrine

defendantattorneyharassmentattorney-client privilege

Related Cases

United States v. Mount Sinai Hospital, 185 F.Supp.3d 383, 94 Fed.R.Serv.3d 1340, 94 Fed.R.Serv.3d 1360

Facts

Relators Ortiz and Gaston, employees of Mount Sinai, reported billing misconduct and sexual harassment allegations against a director in the Radiology Billing Department. Following these reports, Mount Sinai conducted internal investigations, one concerning the billing practices and another regarding the harassment claims. The hospital's in-house attorneys were involved in both investigations, and the relators later filed a qui tam action after the government declined to intervene.

In September 2010, while the Ortiz sexual harassment investigation was ongoing, Ortiz and Gaston brought certain alleged billing misconduct to their employer's attention. According to Ortiz, Dorce was responsible for much of that misconduct.

Issue

The main legal issues revolved around the discoverability of documents related to the internal investigations, specifically whether certain communications were protected by attorney-client privilege or the work-product doctrine.

The parties now disagree as to whether various documents that Mount Sinai has withheld from production, either in whole or in part, fall within the scope of its waiver.

Rule

The court applied the principles of attorney-client privilege and the work-product doctrine, noting that privilege can be waived either expressly or impliedly, and that the scope of waiver extends to communications concerning the same subject matter as the disclosed materials.

The attorney-client privilege 'protects communications (1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal advice.'

Analysis

The court analyzed the relationship between the sexual harassment investigation and the billing practices audit, determining that while the hospital had waived privilege regarding the audit, not all communications related to the harassment investigation were discoverable. The court emphasized that the undisclosed communications must concern the same subject matter and ought to be produced in fairness.

The Court does not accept relators' broad conception of the linkage between the two investigations. Under Rule 502, undisclosed communications do not become discoverable unless (a) they 'concern' the same subject matter as the waived communications and (b) ought, 'in fairness,' to be produced.

Conclusion

The court ordered the hospital to submit certain emails for in camera review and ruled that some documents did not fall within the scope of the waiver of privilege. The court upheld the confidentiality designations of certain documents while requiring a review of others.

Defendants must promptly submit unredacted copies of Items No. 97, 151–166, 169, 183–179, 313–14, and 327–60 on their privilege log for in camera review by the Court, labeled to correspond with their privilege log listing, and accompanied by a description of the positions and roles of the various authors and recipients of the disputed emails.

Who won?

The relators partially prevailed as the court ordered the hospital to submit specific documents for review, indicating that some of their discovery requests were justified.

The Court does not accept relators' broad conception of the linkage between the two investigations.

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