October 30, 2009
Not Privileged But Work Product In Part
The Iowa Supreme Court considered the application of attorney-client privilege and work product doctrine to an interview conducted by defense counsel in a medical malpractice action. Counsel represented a defendant doctor and his entity employer. The defendant doctor had referred the plaintiff to another doctor (not a defendant) in the same group, who in turn referred the plaintiff to a third doctor. Defense counsel violated an Iowa statute by conducting an interview of the second doctor without notice to plaintiff's counsel, who had a statutory right to sit in on the interview of his client's treating physician. Defense counsel made a memo of the interview. When plaintiff's counsel learned of the interview and memo, a motion to compel production was filed.
Here, the court held that the attorney-client privilege did not apply notwithstanding counsel's claim to have also represented the second doctor. Such representation might run afoul of conflicts rules. However, the work product would protect from disclosure defense counsel's mental impressions but not the views of the second doctor as a treating physician and witness. The court remanded to the trial court to order disclosure of the potions of the memo that are not work product. (Mike Frisch)
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