Deposition Prep Covered by Attorney Work Product Doctrine
The United States District Court for the Southern District of New York denied the United States’ motion to compel a third-party witness to testify about communications that had been made during her deposition preparation because the communications were protected by the attorney work product doctrine. A health insurance company retained a vendor to perform retrospective chart review services. Thereafter, the government issued a Civil Investigate Demand to the company, after which it entered into a Joint Defense Agreement (“JDA”) with the vendor. The government ultimately filed a False Claim Act suit against the company and ordered a former employee of the vendor to testify at a deposition about various issues discussed during her deposition prep. Counsel objected, claiming the questions violated the attorney-client privilege and constituted protected work product because the former employee was covered by the JDA, and the government filed a motion to compel. The district court rejected the motion to compel, finding that the company’s counsel and the witness during deposition prep were protected under the work product doctrine since the government sought the health insurance company’s counsel’s work product. The court found that counsel hadn’t waived the privilege, as it’s only waived when disclosed to a third party in a manner that is inconsistent with the protection. While no written confidentiality agreement is required to support the work product protection, the JDA, which was entered into while the vendor employed the employee, reiterated the position that information sought or conveyed in preparation for her deposition was done so for purposes of work product protection. U.S. v. Anthem, Inc.
Clinical Privileges Different from Job Qualifications
The California Court of Appeal annulled a decision issued by a state agency that had determined that a county (whose board of supervisors functioned as the board of county-run hospitals) failed to bargain in good faith with a union before the county approved revised medical staff bylaws at its hospitals. The medical staffs at the county-run hospitals adopted revisions to its bylaws that, among other things, required physician assistants to maintain both a license and a certificate to maintain privileges at the hospitals, when previously they could have either a license or a certification to do so. A union representing the physician assistants filed an unfair practice charge with California’s employment administrative agency, alleging that the county’s board of supervisors failed to carry out its duty under a state law that required the county to meet and confer in good faith with the union regarding the effect of the bylaws amendments on its members’ terms and conditions of employment, concluding that clinical privileges were “similar” to job qualifications which meant the county should have negotiated with the union prior to approving the bylaws and had violated state law by failing to do so. However, the Court of Appeal annulled that decision, finding that the agency failed to apply the appropriate test or properly analogize to existing precedent to determine whether the decision to amend the bylaws fell within the union’s scope of representation. Ultimately, the court concluded that the agency’s presumption that privileges were identical to job qualifications was unsupported by caselaw and failed to recognize that job qualifications, a matter of employment, were established by the county, while the privileges were established by the hospitals’ medical staffs, who, under state law, were independent from the county. Cnty. of Santa Clara v. Pub. Emp. Rel. Bd.