United States District Court, D. Montana, Butte Division
UNITED STATES OF AMERICA EX REL. FRANK M. REMBERT AND MICHAEL R. PARADISE, Plaintiffs,
BOZEMAN HEALTH DEACONESS HOSPITAL D/B/A BOZEMAN HEALTH, and DEACONESS-INTERCITY IMAGING, LLC D/B/A ADVANCED MEDICAL IMAGING, Defendant.
HADDON United States District Judge.
before the Court is Relators' Rule 26(b)(5)(B) Motion for
Determination of Privilege Re; Claw-Back,  filed on January
29, 2018. Submissions of Clawed-Back Documents for In
Camera Review and Determination of Privilege were filed
on January 29, 2018, February 21, 2018, and March
attorney-client privilege exists where: '(1) [ ] 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 be waived."" "The party
asserting the attorney-client privilege has the burden of
establishing the relationship and privileged nature of the
communication." Moreover, "[a] party claiming the
privilege must identify specific communications and the
grounds supporting the privilege as to each piece of evidence
over which privilege is asserted. Blanket assertions are
'extremely disfavored.'" "The attorney-client
privilege may extend to communications with third parties who
have been engaged to assist the attorney in providing legal
advice. If the advice sought is not legal advice, but, for
example, accounting advice from an accountant, then the
privilege does not exist."
work product protection applies to "documents and
tangible things that are prepared in anticipation of
litigation or for trial by or for another party or its
representative." Documents are protected that "would
not have been created in substantially similar form but for
the prospect of litigation."
the documents submitted to the Court on January 29, 2018,
February 21, 2018,  and March 1, 2018,  have been
reviewed by the Court and have been determined not to be
protected from discovery in this case by attorney-client
privilege or principles of attorney work-product protection.
Defendants have failed to establish entitlement to protection
from discovery under either attorney-client privilege or
attorney work-product protection.
Relators' Rule 26(b)(5)(B) Motion for Determination of
Privilege Re: Claw-Back is GRANTED, as stated in this Order.
documents submitted under seal in:
a. Relators' Submission of Clawed-Back Documents for
In Camera Review and Determination of Privilege,
b. Relators' Supplemental Submission of Clawed-Back
Documents for In Camera Review and Determination of
Privilege,  and
c. Relators' Second Supplemental Submission of
Clawed-Back Documents for In Camera Review and
Determination of Privilege Re: Relators' First Rule
26(b)(5)(b) Motion, 
(1) not protected from discovery by attorney-client privilege
or attorney work-product protection, and (2) are subject to
discovery, and, if appropriate, to use for ...