Doe v. Intermountain Health Care, Inc. (U.S. District Court for the District of Utah, case no. 2:18-CV-807-RJS-JCB, January 16, 2021). Plaintiff was denied RTC care through a self-funded health plan. Plaintiff alleges that Defendant misrepresented the reasons for denying coverage and withheld plan-related documents. Plaintiffs filed a Short Form Discover Motion to compel Defendants to produce documents withheld as privileged. In compliance with the Court order, Defendants submitted an amended privileged log and the challenged documents for an in camera review to resolve the dispute. Plaintiffs assert 3 reasons why the disputed documents should be discoverable and attorney client privilege does not apply: 1) the documents were not created to facilitate legal advice; 2) they were not prepared in anticipation of litigation; and 3) they fall within the fiduciary exception to privilege.
Judge Jared C. Bennet rendered individual rulings for each email and the related documents withheld as privileged. Among other findings he noted that almost all of the documents attached to emails are not privileged. The Court noted that documents are not privileged simply by sending it to an attorney in search of legal advice. Judge Bennet worked through several scenarios to assess when documents such as emails are privileged and not. Among other findings, the Court noted:
Documents that were created in the normal course of business not motivated by litigation cannot be protected under the work product doctrine. Thus, if attachments to an email were created for a business purpose and not because of litigation, such documents are not entitled to protection as work product.