Moloney v. United States
204 F.R.D. 16, 2001 U.S. Dist. LEXIS 18691, 2001 WL 1423891 (2001)
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Rule of Law:
A party asserting a privilege during discovery must expressly claim the specific privilege and describe the nature of the withheld information at the time the objection is made, enabling other parties to assess its applicability; failure to do so, or to subsequently assert different privileges, constitutes a waiver.
Facts:
- On December 13, 1996, Donald J. Moloney visited Neponset Health Care Center (NHC) for a physical exam and concerns about recent weight loss, but did not report stomach pain.
- On January 1, 1997, Mr. Moloney reported to the Boston Medical Center emergency room with abdominal pain, fever, chills, and sweats, where he was diagnosed with gastroenteritis.
- For approximately six weeks, Mr. Moloney allegedly continued to experience worsening abdominal pain and low-grade fevers, but did not return to medical care.
- On February 15, 1997, Mr. Moloney arrived at the NHC medical facility with severe lower abdominal pain and a 103-degree fever and was seen by Dr. Lisa Adams.
- Dr. Adams took cultures for sexually transmitted diseases (STDs), administered an antibiotic injection, provided a prescription for oral antibiotics, and instructed Mr. Moloney to seek further medical attention if symptoms persisted.
- On February 16, 2001, Mr. Moloney was transported by ambulance to Quincy Hospital after collapsing, where he was found to have perforated sigmoid diverticulitis with massive fecal peritonitis, requiring surgery and leading to multiple organ failure.
- Dr. Adams had three conversations with her immediate medical supervisor, Dr. Robert S. Baratz (one shortly after seeing Mr. Moloney, and two in summer 1998), and one or two conversations with Harbor Health's Chief Operating Officer, Dan Driscoll, regarding her treatment of Mr. Moloney.
Procedural Posture:
- On February 25, 1999, Donald J. Moloney filed a complaint against the United States of America in the United States District Court for the District of Massachusetts, alleging medical malpractice under the Federal Tort Claims Act.
- During the deposition of Dr. Lisa Adams, counsel for the United States instructed Dr. Adams not to answer questions regarding the substance of certain conversations, asserting attorney/client and work product privileges.
- Mr. Moloney filed a motion to compel further deposition testimony of Dr. Adams in the district court.
- The United States opposed the motion to compel, subsequently submitting a further brief in opposition after the court issued an Order For Further Briefing.
- Mr. Moloney also filed a memorandum of law in support of his motion.
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Issue:
Does a party waive the right to assert new privileges in response to a motion to compel, when only different privileges were initially asserted during a deposition without sufficient supporting information, thereby failing to comply with discovery rules?
Opinions:
Majority - Collings, Chief Magistrate Judge
Yes, a party waives the right to assert new privileges in response to a motion to compel when different privileges were initially asserted during a deposition without proper justification or sufficient information. Federal Rules of Civil Procedure 26(b)(5) and 30(d)(1) mandate that parties expressly claim privileges during discovery, describe the nature of withheld information without revealing privileged content, and state objections concisely. Defense counsel initially claimed attorney/client and work product privileges during Dr. Adams' deposition but failed to provide justification or details for the plaintiff to assess their applicability. Subsequently, in opposition to the motion to compel, the defendant abandoned these initial claims and attempted to assert entirely new privileges (federal self-critical analysis, federal medical peer review, and state statutory privilege). The court found this 'change of tack midstream' to be a clear violation of the rules, which require timely and specific assertion of privileges. This conduct prevented plaintiff's counsel from evaluating the claims and precluded the court from establishing a meaningful record. Such actions, the court reasoned, circumvent both the letter and spirit of the discovery rules. Furthermore, the court noted that it is improper for a party to assert a privilege and then force the opposing side to file a motion to compel; the objecting party has an obligation to file a motion for a protective order.
Analysis:
This case significantly clarifies the procedural requirements for asserting privileges in federal discovery, emphasizing the need for specificity and timeliness under Federal Rules of Civil Procedure 26(b)(5) and 30(d)(1). It establishes that a party risks waiver if they fail to expressly identify the specific privilege being claimed and provide sufficient information for assessment at the time of the objection, or if they attempt to introduce entirely new privilege claims later. The ruling also underscores that an objecting party may bear the affirmative duty to seek a protective order rather than passively waiting for a motion to compel, thereby impacting discovery litigation strategy and encouraging upfront disclosure of privilege justifications.
