: : Practical Guidelines On Privilege Objections To Discovery Requests

“The description for each of these emails is either “Redacted portion reflecting confidential attorney-client communications with BCBSM Legal Department regarding MLR issues” or “Email reflecting confidential attorney-client communications with BCBSM Legal Department regarding MLR issues.” (ECF No. 145-3). While not a model of detailed description, the description contains information similar to the description in Carhartt, where the proponent of the log described the material as “Document(s) providing, containing, reflecting, or discussing confidential legal advice from counsel concerning anticipated litigation.” 333 F.R.D. at 120. As in Carhartt, BCBSM has met the minimal standard of detail for a privilege log…”
Grand Traverse Band of Ottawa v. Blue Cross Blue Shield of Mich. (E.D. Mich. 2021)

I’m posting excerpts from this opinion because it offers some practical guidelines on discovery and privilege. The primary case concerns allegations against Blue Cross under the Michigan “Healthcare False Claims Act.

Law Governing Privilege

Fed. R. Evid. 501: where state law supplies the rule of decision, state law governs privilege.

Michigan law governs the question of attorney-client privilege in this matter.1 See Fed. R. Evid. 501 (where state law supplies the rule of decision, state law governs privilege). As noted by plaintiffs, Michigan courts look to “federal precedent for guidance in determining the scope of the attorney-client privilege when a particular issue has been addressed by a federal court.” Est. of Nash by Nash v. City of Grand Haven, 909 N.W.2d 862, 867 (Mich. Ct. App. 2017) (citation omitted).
Grand Traverse Band of Ottawa v. Blue Cross Blue Shield of Mich. (E.D. Mich. 2021)

Communications Between Non-Attorney Employees

In the corporate context, the attorney-client privilege extends to communications, between non-attorney employees, made to obtain or relay legal advice.” McCall v. Procter & Gamble Co., 2019 WL 3997375, at *4 (S.D. Ohio Aug. 22, 2019) ( (collecting cases); Ajose v. Interline Brands, Inc., 2016 WL 6893866, at *8 (M.D. Tenn. Nov. 23, 2016) (citing Broessel v. Triad Guar. Ins. Corp., 238 F.R.D. 215, 219 (W.D. Ky. 2006)) (“In the corporate context, the attorney-client privilege may extend to communications between employees that convey legal advice given by an attorney to the corporation.”); see also Leibel v. Gen. Motors Corp., 646 N.W.2d 179, 183 (Mich. Ct. App. 2002) (quoting Reed Dairy Farm v. Consumers Power Co., 576 N.W.2d 709 (Mich. Ct. App. 1998) (“Where an attorney’s client is an organization, the privilege extends to those communications between attorneys and all agents or employees of the organization authorized to speak on its behalf in relation to the subject matter of the communication.”)).

Communications of Business Matters

Communications between attorney and client related to business matters, rather than legal matters, are not attorney-client privileged. Michigan First Credit Union v. Cumis Ins. Soc., Inc., 2006 WL 1851018, at *2 (E.D. Mich. July 5, 2006).

Communications Involving Mixed Legal and Business Issues

‘legal and business considerations may frequently be inextricably intertwined. This is inevitable when legal advice is rendered in the context of commercial transactions or in the operations of a business in a corporate setting. The mere fact that business considerations are weighed in the rendering of legal advice does not vitiate the attorney-client privilege.'” Id. at 117 (quoting Picard Chem. Inc. Profit Sharing Plan v. Perrigo Co., 951 F. Supp. 679, 685-86 (W.D. Mich. 1996)). The question is whether the advice is predominantly legal or business in nature. Id. When there are doubts, they are resolved in favor of the privilege. Id. (citations omitted). See, Carhartt, Inc. v. Innovative Textiles, Inc., 333 F.R.D. 113 (E.D. Mich. 2019).

Privilege Log Rule

Pursuant to Federal Rule of Civil Procedure 26(b)(5), when a party withholds information otherwise discoverable on the basis the information is privileged, that party must expressly make the claim and “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”…

“‘[E]ach document in a privilege log should contain details including date, author and all recipients of the document, subject matter, and an explanation as to why the document should be privileged and not produced in discovery.'” Clark Const. Grp., Inc. v. City of Memphis, 2005 WL 6187896 (W.D. Tenn. Feb. 9, 2005).

Burden of Proof

The party asserting the privilege has the burden of proving each element of the claim. United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999). The claim of privilege must be made and assessed on a document-by-document basis. Pearlshire Capital Grp., LLC v. Zaid, 490 F. Supp. 3d 1299, 1307 (N.D. Ill. 2020) (citing Shaffer v. AMA, 662 F.3d 439, 446 (7th Cir. 2011)).