What must a privilege log contain to support care-review privilege claims? Vered v. Tooele Hospital Corporation Explained

In Vered v. Tooele Hospital Corporation, the Utah Court of Appeals clarified the foundational requirements for asserting the care-review privilege and emphasized that inadequate privilege logs cannot support privilege claims.

Background and Facts

Dr. Eldad Vered sued Tooele Hospital Corporation and related entities for breach of contract, defamation, and interference with economic relations. During discovery, defendants claimed the care-review privilege for 118 documents in their privilege log. However, the log contained only vague descriptions such as “Letter re: incomplete proctoring card,” “Email chain re: patient issues,” and “OB Staff Meeting Agenda.” The district court found the privilege log inadequate and ordered production of all documents. When defendants sought reconsideration and offered to supplement the log with an affidavit, the court denied the motion.

Key Legal Issues

The appeal raised three main issues: whether defendants waived their privilege claims by not providing a supporting affidavit; whether the district court abused its discretion by not conducting in camera review; and whether the court should have required additional discovery dispute procedures before ordering document production.

Court’s Analysis and Holding

The court of appeals affirmed, holding that defendants failed to meet their burden of demonstrating that the care-review privilege applied. The court clarified that under Rule 26 of the Utah Rules of Civil Procedure and Allred v. Saunders, parties claiming privilege must provide “sufficient foundational information to allow the court and opposing parties to evaluate the validity of the claimed privilege.” The court emphasized that the care-review privilege “protects only those documents prepared specifically to be submitted for review purposes,” not documents that “might or could be used in the review process.”

Practice Implications

This decision provides crucial guidance for Utah practitioners preparing privilege logs. The court rejected the common practice of “shadowboxing” with minimal privilege log entries, warning that “there is no requirement that a district court provide unlimited bites at the apple.” Privilege logs must contain specific, detailed descriptions explaining why each document qualifies for the claimed privilege. The court also clarified that while in camera review may be available in the court’s discretion, it is not required when the initial privilege log is inadequate.