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.
are: (1) Bozeman Health Deaconess Hospital's
("BDH") Renewed Motion to Quash Subpoena and for
Protective Order; and (2) Relators' Motion for
Sanctions. Both are ripe for resolution.
filed its original motion to Quash Subpoena and for
Protective Order on January 1, 2018, asserting that documents
and testimony regarding BDH's 2014 engagement (the
"2014 Engagement") of Value Management Group
("VMG") were protected by attorney client privilege
and the work product doctrine.
Court ordered the deposition of VMG to proceed, upon
condition that counsel not ask questions about work performed
by VMG in 2014 and that "[i]f the Court determines
that work performed by VMG in 2014 is not privileged, the VMG
deposition may be reopened to allow the parties to question
VMG on that topic only."
22, 2018, the Court ruled that BDH had failed to meet its
burden of establishing that the documents and testimony
regarding BDH's 2014 engagement of VMG were protected by
attorney client privilege or work product
protection.BDH's motion was denied "without
prejudice to renewal," if BDH filed, "m
camera, the specific communications it [sought] to
protect as privileged." The specific communications were
filed as ordered.
BDH's renewed motion to quash and for protective
attorney-client privilege protects confidential
communications between attorneys and clients, which are made
for the purpose of giving legal advice." The standard for
establishing the privilege, as stated by the Ninth Circuit
"(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
. . . 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." Business matter communications are not
privileged. Attorney 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." The protection is
available only if "the 'document was created because
of anticipated litigation, and would not have been created in
substantially similar form but for the prospect of
renewed its blanket assertion that "the 2014 Engagement
was privileged and work product
protected." The specific documents for which
protection was sought were submitted to the Court in
cameraA privilege log identifying protected
documents, documents produced for which protection was not
sought, and certain documents already ruled to be
unprotected, was provided.
grounds for each item BDH sought to protect, beyond a basic
assertion of "attorney client," "work
product," or "common interest" were not
stated. Rather, BDH relies upon: (1) the
contents of YMG's January 31, 2014 letter
("Engagement Letter") to TJ. Sullivan
("Sullivan"), BDH's counsel from the law firm
Drinker Biddle and Reath ("DBR"),  and (2)
affidavits of Sullivan and Elizabeth Lewis
("Lewis"), BDH's chief operating officer,
attesting to BDH's expectation of the 2014
Engagement's protected status (the
"Affidavits"). A separately stated reason for
protection against production was that Relators' state
court suit against BDH was ongoing at the time of the 2014
failed to establish that blanket protection, as requested, is
warranted. The Engagement Letter and the two Affidavits
relied upon were --- already before the
Court when it determined earlier that BDH failed to meet its
burden. The existence of ongoing state court litigation does
not change that assessment.
the Engagement Letter nor the Affidavits specifically connect
the 2014 Engagement to legal representation by Sullivan in
the state court proceedings. However, both the Affidavits and
Engagement Letter make clear the advice BDH sought from
Sullivan pertaining to the 2014 Engagement was advice on a
"potential transaction," not the state court
of VMG, during the 2014 Engagement, have not been shown to be
agents "engaged to assist" Sullivan or DBR in the
provision of legal advice to BDH. The 2014 Engagement
materials are not entitled to blanket attorney-client
likewise failed to establish that work product protection
applies to any part of the 2014 Engagement materials.
Although it did not previously assert a specific reason for
work product protection, it now raises the state court
litigation in 2014 as a possible basis.
connection between the state court litigation and the 2014
Engagement has been demonstrated. It has not been shown that
the documents related to the 2014 Engagement "would not
have been created in substantially similar form but for the
prospect of litigation."
ordered, BDH filed the specific communications it sought to
protect as privileged. The documents, identified on the
privilege log as "Work Product" or "Work
Product/Common Interest, " and identified by the
bates number listed in footnote 27 below, are not entitled to
addition, certain other documents identified as
"Attorney Client" are not entitled to protection.
The employees of VMG were not employed by Sullivan or DBR to
assist in rendering legal advice. Documents that did not
involve Sullivan or DBR are not protected by attorney-client
privilege. Moreover, the attorney- client privilege protects
only communications related to the provision of legal advice.
Documents that are not communications are not
protected. Any document attached to an email that
did not involve BDH's counsel cannot be considered a
communication protected by attorney-client privilege.
Documents not attached to an email are not entitled to
attorney-client privilege. Accordingly, the documents,
identified in the privilege log and submitted in
camera and identified by the bates number listed in
footnote 30 below, are not entitled to attorney client
(1) an email from VMG's Nick Taglioli
("Taglioli") to Sullivan and VMG's Aaron Murski
(2) an email from Murski to Sullivan.
(3) an unsigned copy of the Engagement Letter.
(4) emails involving Murski and Sullivan, together with an
attached executed version of the Engagement
(5) emails among Taglioli, Sullivan, and
(6) emails between Murski and Sullivan, two of which are
contained in VMG-PRTV0001055.
(7) emails between BDH's Lewis, Sullivan, Murski, and
AMI's Courtney Funk ("Funk").
(8) emails between BDH's Lewis, Sullivan, Murski, and
AMI's Funk, which are identical to those found in
claimed privilege of each is addressed separately below.
(1) is not a communication between a "client" and
lawyer, nor is it, under Richey, a communication
between a lawyer and a third party engaged to assist in the
provision of ...