Virginia Lawyers Weekly

A Lynchburg U.S. District Court denies plaintiff’s motion to compel defendant hospital’s human relations consultant and its in-house lawyer to testify about plaintiff’s termination, because the communications at issue are plainly subject to the attorney-client privilege and no waiver or exception applies.

Plaintiff claims she was fired from her hospital job because she was disabled, in violation of the Americans with Disabilities Act. Specifically, plaintiff had breast cancer and after surgery and treatment, she was restricted by her physician in her ability to lift, push or pull objects greater than five pounds.

Plaintiff contends she is entitled to have the human resources consultant and the corporate attorney produced for depositions on questions pertaining to discussions about whether to terminate plaintiff because of her disability. She contends she is entitled to this information because the consultant and the attorney were decision makers in her termination, the content of their conversations is important to discovering their knowledge and extent of plaintiff’s disability and corresponding ability to perform her job, the hospital waived attorney-client privilege by disclosing portions of these communications previously and the hospital fabricated evidence, giving rise to the crime-fraud exception to attorney-client privilege.

There is no dispute that communications between the consultant and the attorney were made in confidence for the purpose of seeking legal advice. Since all the elements of attorney-client privilege are present, the court must determine whether a waiver of privilege occurred or an exception to the privilege applies in this case.

Plaintiff asserts certain comments in the consultant’s affidavit draw attention to conversation that occurred between the consultant and the attorney: “We handled the situation as authorized by the ADA,” and “we determined that [plaintiff] was not qualified for her job.” At no point in the affidavit does the consultant come close to discussing any of her conversations with the lawyer prior to plaintiff’s termination. Also, the lawyer’s letter to the EEOC is a letter written by a lawyer to the EEOC arguing his client’s position. While the subject of the letter is obviously plaintiff’s termination, nothing in that letter hints at the substance of the communications between the lawyer and the consultant regarding plaintiff’s termination, and the letter works no waiver of the privilege.

After a thorough review of the consultant’s affidavit, the lawyer’s letter to the EEOC and the hospital’s responses to plaintiff’s first set of interrogatories and request for production of documents, the court finds these documents do not waive the attorney-client privilege. Nor has the hospital placed the lawyer’s advice to the consultant prior to plaintiff’s termination at issue in this case. The hospital does not assert the defense of advice of counsel in this case.

Plaintiff also argues that an undated two-page document entitled “Job Description Supplemental Standard” for cafeteria workers was fraudulently created by the hospital after plaintiff was terminated for the purposes of the EEOC proceeding. Defendants strenuously deny the contention of fabrication. Careful examination of the record reflects that plaintiff’s assertion is nothing more than speculation. As a nurse from the hospital testified that the last two pages of the job descriptions were given to plaintiff prior to her termination, plaintiff’s assertion of post-termination fabrication are supposition without any basis. There is no basis whatsoever for assertion of the attorney-client privilege under the crime-fraud exception.

Billings v. Stonewall Jackson Hospital (Urbanski, J.) No. 6:08cv010, June 15, 2009; USDC at Lynchburg, Va. VLW 009-3-339, 8 pp.

Close this Window Bookmark and Share This Page

Save to Browser Favorites / Bookmarks

Print RSS Feed Ask backflip blinklist BlogBookmark Bloglines BlogMarks Blogsvine BuddyMarks BUMPzee! CiteULike co.mments

Connotea del.icio.us Digg diigo DotNetKicks DropJack dzone Facebook Fark Faves Feed Me Links Friendsite folkd.com

Furl Google Hugg Jeqq Kaboodle kirtsy linkaGoGo LinksMarker Ma.gnolia Mister Wong Mixx MySpace MyWeb

Netvouz Newsvine oneview OnlyWire PlugIM Propeller Reddit Rojo Segnalo Shoutwire Simpy Slashdot Sphere

Sphinn Spurl Squidoo StumbleUpon Technorati ThisNext Twitter Webride Windows Live Yahoo!

Email This to a Friend

Copy HTML: 

 If you like this then please subscribe to the RSS Feed.

More »