United States District Court, E.D. Michigan, Southern Division
MICHELLE H. BAILEY, Plaintiff,
OAKWOOD HEALTHCARE, INC., d/b/a OAKWOOD HOSPITAL & MEDICAL CENTER, Defendant.
ELIZABETH A. STAFFORD UNITED STATES MAGISTRATE JUDGE.
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO
STRIKE ATTORNEY-CLIENT PRIVILEGED COMMUNICATION
D. BORMAN UNITED STATES DISTRICT JUDGE.
action arises from Plaintiff Michelle H. Bailey's claims
that her employment with Defendant Oakwood Healthcare, Inc.
was terminated for both discriminatory and retaliatory
reasons in violation of various federal and state civil
September 2, 2016, Defendant filed its Amended Motion for
Summary Judgment. (ECF No. 38.) Plaintiff filed her Response
on October 14, 2016. (ECF No. 41.) Attached to the Response
as Exhibit A were two pages of handwritten notes that David
Squire (a Director of Human Resources employed by Defendant)
had taken during a conversation that he had with Patrice
Baker (Defendant's in-house counsel) 10 days before the
March 20, 2014 meeting at which Plaintiff's employment
was terminated. Defendant filed its Reply on November 11,
2016. (ECF No. 49.) On the same date, Defendant filed a
Motion to Strike Attorney/Client Privileged Communication.
(ECF No. 48.)
Motion to Strike, which seeks to exclude Exhibit A as
inadmissible based on the attorney-client privilege, is now
before the Court. For the reasons stated below, the Court
will GRANT Defendant's Motion.
governing Sixth Circuit precedent provides as follows:
Questions of privilege are to be determined by federal common
law in federal question cases. Fed.R.Evid. 501. The elements
of the attorney-client privilege are as follows: (1) Where
legal advice of any kind is sought (2) from a professional
legal adviser in his capacity as such, (3) the communications
relating to that purpose, (4) made in confidence (5) by the
client, (6) are at his instance permanently protected (7)
from disclosure by himself or by the legal adviser, (8)
unless the protection is waived.
Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir.
on a privileged conversation that reflect the substance of
that conversation can amount to “communications”
for these purposes, since the term “can be defined as
‘any expression through which a privileged person . . .
undertakes to convey information to another privileged person
and any document or other record revealing such an
expression.'” Laethem Equip. Co. v. Deere &
Co., 261 F.R.D. 127, 140 (E.D. Mich. 2009) (quoting
Restatement (Third) of Law Governing Lawyers § 69).
Additionally, the requirement that the communication be
“by the client” is not necessarily a literal one:
“[a]n attorney's communications to a client may
also be protected by the privilege, to the extent that they
are based on or contain confidential information provided by
the client, or legal advice or opinions of the
attorney.” Schenet v. Anderson, 678 F.Supp.
1280, 1281 (E.D. Mich. 1988). Overall, “[t]he burden of
establishing the existence of the [attorney-client] privilege
rests with the person asserting it.” United States
v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999).
in an Affidavit attached to Defendant's Reply in support
of its Motion, avers that the notes were taken during a
conversation with Baker that was held in order to
“address the underlying facts as to Michelle Bailey,
actions taken with similarly situated persons, the possible
claims, associated legal risks, and possible available
alternatives.” (ECF No. 53, Def.'s Reply, Ex. B,
Affidavit of David Squire at ¶ 4.) Defendant argues that
because the notes were produced inadvertently in discovery,
and as they contain “the substance of a conversation
that . . . Squire had with legal counsel prior to the
termination of Plaintiff, ” they are privileged and
therefore inadmissible for the purpose. (ECF No. 48 at 4.)
makes three distinct arguments in her Response: that
Defendant has failed to show that the notes are privileged,
that any privilege which did exist was waived by
Defendant's disclosure of the notes, and that the
crime/fraud exception should negate any finding that the
notes are privileged. These arguments are considered in turn
Has Defendant met its burden of showing that the ...