The Attorney–Client ‘Shield’ in Medical Malpractice Cases Revisited: Why a Witness Knowledge of Facts is Not a Secret
By Mark A. Abramson and Kevin F. Dugan
In a recent article, we discussed how the crime-fraud exception may be used to combat the improper use of the attorney-client privilege as a shield for fraudulent behavior. As every practitioner knows, however, not every improper use of the privilege rises to the level of fraud. Attorneys routinely assert the privilege on behalf of their clients to prevent the disclosure of relevant facts even though there is no basis to do so. In medical negligence cases, for example, defense attorneys often try to prevent their clients from answering deposition questions about their knowledge of the plaintiff’s subsequent medical treatment or conditions by asserting the attorney-client and work-product privileges. In such cases, the attorney for the defendant-physician says the source of the defendant’s knowledge was their attorney, so the defendant’s knowledge of the facts being asked about is protected from disclosure.
This defense tactic should not be allowed to occur. The law in New Hampshire and elsewhere is quite clear that neither the attorney-client privilege nor the work-product doctrine extends to underlying facts, regardless of the source of the information. This article reviews the law in New Hampshire and elsewhere concerning the attorney-client privilege and the work-product doctrine and explains why the above tactic is prohibited under New Hampshire law.
A. Attorney-Client Privilege
The attorney-client privilege is perhaps the oldest privilege concerning confidential communications recognized by the common law.” It is predicated on the notion that an attorney must know all relevant facts about his or her client’s reasons for needing representation in order to be a successful advocate. To that end, the privilege “encourage[s] clients to make full disclosure to their attorneys” by preventing discovery of confidential communications between attorneys and their clients. However, while public policy weighs in favor of the privilege, it often interferes with the search for the truth. Accordingly, courts strictly construe application of the privilege and place the burden of establishing its existence on the party asserting it.
In New Hampshire, the privilege is set forth in Rule 502 of the New Hampshire Rules of Evidence and provides:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client or his or her representative and the client’s lawyer or the lawyer’s representative . . . .
As the language of the rule plainly dictates, the attorney-client privilege applies only to communications—not the facts learned from such communications. Our Supreme Court recognized this clear limitation as early as 1917, in La Coss v. Lebanon. There, the plaintiff, a town employee, was injured on the job in an accident involving a “hoisting apparatus.” Shortly after the accident, the Town’s officers drew a sketch of the accident scene and photographed the apparatus at issue. The officers then gave the sketch and photograph to the Town’s counsel. When the plaintiff filed suit and sought to discover the sketch and photograph to prove his case, the Town refused to produce the materials on the basis of the attorney-client privilege.
The Court held the assertion of privilege was improper and ordered the Town to produce the materials. Finding the materials were relevant to the plaintiff’s cause of action, the Court stated:
[T]he sketch and photograph are not communications from the defendant to its counsel but documents that it prepared to perpetuate the evidence of the facts on which it relies as a defence to this suit. . . . The mere fact these documents are now in the possession of the defendant’s counsel does not help it for if the defendant can be compelled to discover them its counsel also can be compelled to produce them. . . . [A] party cannot escape his duty of discovering material documents by merely handing them to his attorney.
In other words, the Town could not use its attorney as a shield to insulate its knowledge of relevant factual information from discovery.
More recently, in the seminal case Upjohn Co. v. United States, the United States Supreme Court recognized this important distinction between the discovery of communications and the discovery of underlying facts as it pertains to the attorney-client privilege. There, in the course of an investigation, the Internal Revenue Service (“IRS”) sought to obtain questionnaires that Upjohn Company’s general counsel sent to certain corporate employees. When Upjohn Company refused to produce the questionnaires on the basis of the attorney-client privilege, the IRS petitioned the Court to compel production of the questionnaires.
The Supreme Court held the questionnaires exchanged between counsel and corporate employees were privileged attorney-client communications and not discoverable. In doing so, however, the Court also concluded that, while the questionnaires were privileged, the underlying facts within the questionnaires were not. Thus, the IRS could simply question the Upjohn Company employees about their knowledge of the events in question, even if said knowledge had been communicated to Upjohn Company’s counsel through the questionnaires. This is because “[t]he privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.” The Court explained:
A fact is one thing and a communication concerning the fact is an entirely different thing. The client cannot be compelled to answer the question, ‘What did you say or write to the attorney’? but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.
As the above cases demonstrate, defendants may not withhold their knowledge of relevant facts on the basis of privilege, simply because such facts were discussed with counsel. This well-settled principle applies equally to cases in which facts are communicated by the defendant to counsel, as was the case in Upjohn, and cases in which the defendant learns facts from counsel, as described in this article. In the latter situation, courts have routinely held under Upjohn that it is proper to ask “for facts from a deponent even though those facts may have been communicated to the deponent by the deponent’s counsel.”
For example, in Protective National Insurance Co., the plaintiff insurer sued the defendant reinsurer for sums it alleged were owed. At the deposition of the defendant’s designated spokesperson, defense counsel objected to all questions regarding the facts underlying the defendant’s allegations. In doing so, defense counsel took the position that the spokesperson could not testify to facts that were communicated to her by defense counsel on the basis of privilege.
The U.S. District Court for the District of Nebraska disagreed. Noting the “essential distinction” between discovery of attorney-client communications and discovery of underlying facts, the Court stated:
No contention can be made that the attorney-client privilege precludes disclosure of factual information. The privilege does not protect facts communicated to an attorney. Clients cannot refuse to disclose facts which their attorney conveyed to them and which the attorneys obtained from independent sources.
Thus, because the plaintiff’s counsel “made clear that he was ‘not asking [the deponent] to relate the opinion that [defense] counsel gave . . . [but] the facts that support [the] allegation[s],” the facts were clearly discoverable.
B. Work-Product Doctrine
In addition to the attorney-client privilege, attorneys often assert the work-product doctrine as another basis to withhold relevant information, without regard to the purpose behind the doctrine. The work-product doctrine, which was first recognized by the United States Supreme Court in Hickman v. Taylor, is intended only to “shelter . . . the mental processes of the attorney [and] provid[e] a privileged area within which he can analyze and prepare his client’s case.” Our Supreme Court has narrowly defined work-product as “the result of an attorney’s activities when those activities have been conducted with a view to pending or anticipated litigation.” To be protected, “[t]he lawyer’s work must have formed an essential step in the procurement of the data which the opponent seeks, and he must have performed duties normally attended to by attorneys.”
Consistent with New Hampshire’s policy favoring liberal discovery, the work-product doctrine does not shield from disclosure underlying facts. Our Supreme Court made this principle clear in State v. Chagnon. There, the State sought to obtain copies of witness statements the defendant’s investigator included within a report. The issue was whether the report was privileged under the work-product doctrine, where it was prepared at the direction of an attorney. The Court held that, while portions of the report containing the theories or mental impressions of counsel were privileged, the witness statements were not and must be produced. The Court reasoned:
When the determination of whether information falls within the attorney work product doctrine is made, the focus ought to be on what substantive information the material contains, rather than simply the form that information takes or how the information was acquired. There is a material difference between words themselves and the reactions to or the conclusions drawn from them by the attorney. Witness statements that contain purely factual information should not be considered work product. . . . If a report also includes notes of the investigator or attorney recording his or her analysis . . . such notes would fall within the work product doctrine and could be redacted from the document . . . .
Thus under Chagnon, purely factual information is discoverable and not protected work-product, even if it is contained within a document created at the direction of an attorney. As noted by Judge McNamara in GT Crystal Sys., LLC v. Khattak, this principle is well-settled:
The courts have consistently held that the work product concept furnishes no shield against discovery, by interrogatories or by deposition, of the facts that the adverse party’s lawyer has learned, or the person from whom he has learned such facts, or the existence or nonexistence of documents, even though the documents themselves may not be subject to discovery.
Despite this well-settled law, defendants in medical negligence cases often try to avoid disclosing their knowledge of the plaintiff’s subsequent treatment or conditions under blanket assertions of privilege. Defense counsel may instruct the defendant to avoid reviewing certain discovery materials, including records and transcripts from the plaintiff’s subsequent treating physicians. Then, defense counsel communicates the relevant facts in the case to the defendant. When the plaintiff’s counsel thereafter attempts to determine the extent of the defendant’s knowledge on the subject, defense counsel instructs the defendant not to answer on the basis of privilege.
Such assertions of privilege are improper. A plaintiff’s lawyer who finds him or herself in such a situation should promptly address the issue with defense counsel, clearly communicating that he or she seeks to discover only the defendant’s knowledge of underlying facts and not attorney-client communications or attorney work-product. If unsuccessful, the plaintiff’s lawyer should put the defendant to his burden and require him to prove the underlying facts are actually privileged. More likely than not, the Court will order discovery if the questions were carefully tailored to seek only factual information.
Neither the attorney-client privilege nor the work product doctrine applies to underlying facts. Notwithstanding this, defendants in medical negligence cases often avoid disclosing their knowledge of relevant facts under claims of privilege. Therefore, plaintiffs’ lawyers should be prepared to confront this situation head-on with defense counsel and seek judicial intervention if necessary. If the plaintiff’s lawyer clearly communicates that he or she only seeks to elicit testimony concerning the defendant’s knowledge of underlying facts, the Court should determine the defendant has not met his or her burden of establishing privilege.
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
Id. (quoting Fisher v. United States, 425 U.S. 391, 403 (1976)).
Trammel v. United States, 445 U.S. 40, 51 (1980) (internal citations omitted).
State v. Gordon, 141 N.H. 703, 705 (1997); In re Grand Jury Subpoena (Mr. S.), 662 F.3d 65, 71 (1st Cir. 2011) (internal citations omitted) (“It is clear beyond hope of contradiction that the party seeking to invoke the attorney-client privilege must carry the devoir of persuasion to show that it applies to a particular communication and has not been waived.”).
N.H. R. Ev. 502(b) (emphasis added); see also Riddle Spring Realty Co. v. State, 107 N.H. 271, 273 (1966) (“The common law rule that confidential communications between a client and an attorney are privileged and protected from inquiry is recognized and enforced in this jurisdiction.”); Hampton Police Ass’n v. Town of Hampton, 162 N.H. 7, 15 (2011) (noting Rule 502 “essentially” codified the common law attorney-client privilege).
La Coss v. Lebanon, 78 N.H. 413, 413 (1917).
See id. at 416–18.
Id. at 414.
Upjohn, 449 U.S. at 395-96.
Id. at 386–88.
Id. at 388.
Id. at 395.
Id. at 396.
Upjohn, 449 U.S. at 396.
Id. at 395.
Id. at 395–96
La Coss, 78 N.H. at 414; Upjohn, 449 U.S. at 395–96; see also Tribune Co. v. Purcigliotti, No. 93 Civ. 7222, 1997 U.S. Dist. LEXIS 228, at * 21 (S.D.N.Y. 1997) (stating “the privilege does not protect the client’s knowledge of relevant facts, whether or not they were learned from his counsel, or facts learned by an attorney from independent sources”)
Protective Nat’l Ins. Co. v. Commonwealth Ins. Co., 137 F.R.D. 267, 280 (D. Neb. 1989); see also Oxyn Telecomms., Inc., 2003 U.S. Dist. LEXIS 2671, at *29 (S.D.N.Y. 2003); Tribune Co., 1997 U.S. Dist. LEXIS 228, at * 21; United States EEOC Comm’n v. Caesars Entm’t, Inc., 237 F.R.D. 428, 433 (D. Nev. 2006) (“[L]ower courts seem to agree that the attorney-client privilege does not preclude a Rule 30(b)(6) deposition of a party’s claims or defenses.”); United States v. Educ. Mgmt. LLC, No. 2:07-cv-00461, 2014 U.S. Dist. LEXIS 50519, at *27 (W.D. Pa. 2014) (“[T]he fact that Ms. McCullough may have learned information from attorneys does not, by itself, implicate privilege or work product protection.”).
Protective Nat’l Ins. Co., 137 F.R.D. at 270.
Id. at 272.
Id. at 278.
Id. at 278–79 (emphasis added) (internal quotations and citations omitted).
329 U.S. 495 (1947).
State v. Chagnon, 139 N.H. 671, 673 (1995) (internal quotations and citations omitted).
Riddle, 107 N.H. at 274; see N.H. Sup. Ct. R. 21(e) (stating “[a] party may obtain discovery of documents otherwise discoverable and prepared in anticipation of litigation only upon a showing of substantial need”).
Riddle, 107 N.H. at 274.
Murray v. Dev. Servs., 149 N.H. 264, 267 (2003).
See Chagnon, 139 N.H. at 675–76; Restatement (Third) of the Law Governing Lawyers, § 87 cmt. g (“Work-product immunity does not apply to underlying facts of the incident or transaction involved in the litigation, even if the same information is contained in work product.”).
 Chagnon, 139 N.H. at 676.
Id. at 672.
Id. at 672–73.
 Id. at 678.
Id. at 676 (internal citations omitted) (emphasis added).
GT Crystal Sys., LLC v. Khattak, 2014 N.H. Super. LEXIS, at *13 (Merrimack Cty. Sup. Ct. Jan. 4, 2014) (quoting State Farm Mut. Auto. Ins. Co. v. New Horizont., Inc., 250 F.R.D. 203, 214 (E.D. Pa. 2008)).
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