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Bailey v. Oakwood Healthcare, Inc.

United States District Court, E.D. Michigan, Southern Division

February 1, 2017

MICHELLE H. BAILEY, Plaintiff,
v.
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

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This 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 rights laws.

         On 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.)

         That 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.

         II. ANALYSIS

         The 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. 1998).

         Notes 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).

         Squire, 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.)

         Plaintiff 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 below.

         A. Has Defendant met its burden of showing that the ...


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