Court Emphasizes Importance of Making Privilege Log
Ex parte the Estate of Fredrick O'Brian Elliott
On July 14, 2017, the estate of Fredrick Elliott filed a wrongful-death action against Baptist Health System, Inc., d/b/a Princeton Baptist Medical Center ("PBMC"), and Courtney Johnston. The complaint alleged that the defendants and the fictitiously named defendants failed to discharge their obligations of care to Elliott and that, as a result, Elliott "suffered fatal injuries, extreme pain, suffering, and mental anguish." The complaint specifically alleged that, on the morning of September 18, 2015, Courtney Johnston, Elliott's nurse, failed to administer a TPN bag in a proper manner to Elliott, resulting in Elliott’s death.
The estate propounded requests for production upon all Defendants, which sought Johnston’s employment file, disciplinary and training records related to Johnston or any employee who rendered medical treatment to Elliott, policies, procedures, regulations, and training rules relating to the use of TPN bags, and documents and information related to any investigation into the medical care for Elliott. The Defendants objected to requests which sought the employment file and training records related to Johnston, the disciplinary file of any employee who rendered care to Elliott, and documents related to any investigation. The Defendants did not object to the requests that sought Johnston’s training record and policies, procedures, regulations, and training rules relating to the use of TPN bags. The estate filed a motion to compel. In the response to the motion, the Defendants alleged that certain documents responsive to the requests were privileged, but the Defendants failed to include any information regarding the documents or the reasons for claiming privilege, nor did they submit a privilege log. The trial court granted the motion as to the requests which sought Johnston’s training record and policies, procedures, regulations, and training rules relating to the use of TPN bags, but denied the remainder of the motion. The estate petitioned for writ of mandamus.
On appeal, the Alabama Supreme Court noted that the Defendants merely relied on statements from counsel as to why certain documents were privileged. They made no privilege log, nor did they attach any affidavits or other evidence in support of their privilege claims. In effect, the trial court denied the estate's motion to compel the production of the information requested based solely on the assertions of counsel for the defendants. Thus, the Court held that the trial court exceeded its discretion in denying the motion to compel, and issued the writ.