The opinion
IN RE: MEDICAL REVIEW * NO. 2024-C-0795
PANEL PROCEEDINGS OF
TRAVIS PORCHE (D); PCF *
FILE NO. 2021-00615 COURT OF APPEAL
*
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******
APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-02412, DIVISION “L”
Honorable Kern A. Reese, Judge
******
Judge Sandra Cabrina Jenkins
******
(Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge
Karen K. Herman)
DYSART, J., CONCURS IN THE RESULT;
HERMAN, J., CONCURS IN THE RESULT
Guice A. Giambrone, III
A. Rebecca Wilmore
3421 N. Causeway Boulevard, Suite 900
Metairie, LA 70002
COUNSEL FOR RELATOR/DEFENDANT
David A. Abramson
Beth E. Abramson
LEWIS, KULLMAN, STERBCOW & ABRAMSON, LLC
601 Poydras Street, Suite 2615
New Orleans, LA 70130
COUNSEL FOR RESPONDENT/PLAINTIFF
JUDGMENT AMENDED; WRIT
DENIED AS AMENDED
June 2, 2025
SCJ
This writ application arises from a medical malpractice action filed by
Plaintiff, Pamela Porche (“Ms. Porche”), against Relator—Dr. Eric Brooks—and
other defendants, Nurse Practitioner Sydney Burchfield (“NP Burchfield”) and
Ochsner Leonard J. Chabert Medical Center (“LJCMC”), arising out of the death
of Ms. Porche’s thirty-five year-old son, Travis Porche (“Travis”). Dr. Brooks
seeks supervisory writ review of the district court’s November 13, 2024 judgment
which ordered Dr. Brooks to produce “privilege log” communications submitted
exclusively to the district court. For the reasons that follow, we amend the
judgment and deny the writ application as amended.
FACTUAL AND PROCEDURAL HISTORY
Ms. Porche transported Travis to LJCMC’s emergency room on January 18,
2021, “for back pain radiating down his legs causing lower leg weakness, and a
third recheck of his lungs due to previous pneumonia.” Ms. Porche represents that
NP Burchfield cared for Travis under the supervision of her husband, Dr. Brooks.
Travis allegedly became agitated and wanted to leave because of improper
treatment. Rather than allowing her son to leave, Ms. Porche claims that NP
Burchfield and/or Dr. Brooks ordered that Travis be restrained and sedated.
Multiple security guards and staff members restrained Travis. Ms. Porche believes
the medications administered to Travis caused cardiac arrest which triggered
anoxic brain injury, and ultimately, resulted in his death.
1
Ms. Porche filed a Request for Medical Review Panel on August 9, 2021,
contending that Dr. Brooks, NP Burchfield, and LJCMC deviated from the
standard of care in their treatment and care of Travis. To facilitate discovery, Ms.
Porche filed a Petition to Institute Discovery, which was lodged in the district court
on March 21, 2022.
Prior to the present matter, this Court reviewed a related discovery dispute
pertinent to the issues raised herein in In re Porche, 2022-0707 (La. App. 4 Cir.
12/8/22), 353 So.3d 382 (“Porche I”). The relevant facts summarized in Porche I,
provided the following:
On April 4, 2022, [Plaintiff] filed a Request for Subpoena Duces
Tecum (“SDT”) and Notice of Deposition for Records Only for
SLMA [South Louisiana Medical Associates], then the current or
immediately former employer of Dr. Brooks and Ms. Burchfield. The
SDT and Notice of Deposition for Records Only requested production
of documents pertaining to the internal investigation or review of Ms.
Burchfield and Dr. Brooks as it pertains to Travis Porche and his
treatment; written or recorded statements obtained with respect to the
treatment provided by Dr. Brooks and Ms. Burchfield to Travis
Porche; disciplinary records, complaints, and internal reviews
associated with Dr. Brooks and Ms. Burchfield; and the entire
personnel file of Dr. Brooks and Ms. Burchfield.
On April 27, 2022, Dr. Brooks and Ms. Burchfield filed a Motion for
Protective Order, or In the Alternative, an Order Limiting the Scope
of Discovery, arguing that the scope of the request was overly broad
and intrusive as to privacy interests because the matter is in the
medical review panel stage and because personnel files are primarily
used for impeachment purposes. Further, they argued the
records sought by [Plaintiff] are subject to the peer review privilege
set forth in La. R.S. 13:3715.3[] and not subject to disclosure. SLMA
filed a similar Motion on April 29, 2022.
[Plaintiff] filed an opposition to [the] Motions on September 8, 2022.
[Plaintiff] complained that [Dr. Brooks, Ms. Burchfield and SLMA]
have not identified any documents sought to be produced, which they
believe are subject to any privilege, and instead have argued a blanket
privilege without identifying specifically those documents to which
any privilege attaches. Consequently, [Plaintiff] maintained that [Dr.
Brooks, Ms. Burchfield and SLMA] should be compelled to prepare
and produce a privilege log of those documents for an in
camera inspection by the district court to determine whether the
2
asserted peer review privilege applies to shield the withheld
document.
By judgment signed on September 26, 2022, the district court granted
[Dr. Brooks, Ms. Burchfield and SLMA’s] Motions and issued an
order protecting from discovery the documents sought by [Plaintiff] in
her Notice of Deposition for Records Only and the STD issued to
SLMA.
2022-0707, pp. 1-3, 353 So.3d at 383-384.
At issue in Porche I was the applicability of La. R.S. 13:3715.3, the peer
review statute. The statute was “designed to protect the confidentiality of hospital
peer review committee records.” See Gautreaux v. Frank, 1995-1033, p. 1 (La.
6/16/95), 656 So.2d 634. Ms. Porche argued the district court erred in granting the
Motions for Protective Order from Dr. Brooks, Nurse Practitioner Sydney
Burchfield (“NP Burchfield”) and SLMA without evidence that the requested
documents passed before a peer review committee and without conducting an in
camera inspection to determine if the documents were subject to the statute’s peer
review privilege. Porche, 2022-0707, p. 3, 353 So.3d at 384. Upon review, this
Court granted Ms. Porche’s writ application, vacated the judgment, and remanded
to the district court to conduct an in camera inspection to ascertain the documents
subject to the peer review privilege. Porche, 2022-0707, p. 5, 353 So.3d at 385.
After remand, Ms. Porche filed a motion to compel. The motion to compel
requested that NP Burchfield, Dr. Brooks, and SLMA be compelled to produce a
“privilege log” to describe the nature of the documents over which they asserted a
privilege. On May 12, 2023, the district court denied the motion to compel.
However, the district court, in accordance with Porche I, ordered Dr. Brooks, NP
Burchfield, and SLMA to produce the withheld documents for an in camera
inspection.
3
Thereafter, Dr. Brooks’ counsel submitted the withheld documents to the
district court. The submission included a cover letter to the court outlining the
various privileges specifying the privileges asserted relative to the documents.
After the submissions, Ms. Porche filed another motion to compel the
production of the ex parte “cover letter” (hereinafter, “privilege log letter” or
“privilege log communication”). Specifically, Ms. Porche argued the privilege log
letter, submitted solely to the district court, amounted to an ex parte
communication. Ms. Porche emphasized that Dr. Brooks’ attorney made
substantive arguments to support his privilege claims with respect to each
document produced for the in camera inspection. Moreover, Ms. Porche
emphasized that the privilege log letter was not submitted pursuant to an order.
Therefore, she claimed all counsel should have access as the intended purpose of
the privilege log letter was to improperly influence the district court’s decision-
making during the in camera inspection process.
The district court conducted a hearing on Ms. Porche’s motion to compel. It
subsequently issued a “Judgment and Reasons” on October 11, 2024, outlining the
documents to be produced and the documents designated as privileged pursuant to
the court’s in camera inspection. The parties expressed concern regarding the
scope of the October 11, 2024 judgment; and on November 13, 2024, the district
court issued a “clarifying judgment.” The judgment provided, in part, that
IT IS HEREBY ORDERED, ADJUDGED AND DECREED as
follows:
Sydney Burchfield, NP is to produce to Claimant those documents
turned over to the Court for in camera inspection that are bates
stamped 9-22;
4
The remaining documents that were produced for in camera
inspection by Sydney Burchfield, NP, are protected under the “peer
review” statute, La. R.S. 13:3715.3, and are not discoverable;
All documents that were produced for in camera inspection by Eric
Brooks, M.D. are protected under the “peer review” statute La. R.S.
13: 3715.3 and are not discoverable.
All documents that were produced for in camera inspection by South
Louisiana Medical Associates are protected under the “peer review”
statute, La. R.S. 13:3715.3 and are not discoverable.
Counsel for Sydney Burchfield, NP is to reproduce his letter to the
Court only of May 24, 2023, in the form of a pleading as a “privilege
log,” which he can file under seal with the Court, but which the Court
is ordering be produced to Claimant;
Counsel for Eric Brooks, M.D. is to reproduce her letter to the Court
only of May 26, 2023, in the form of a pleading as a “privilege log,”
which she can file under seal with the Court, but which the Court is
ordering be produced to Claimant;
Subsequent to the judgment, Dr. Brooks timely filed notice of intent to seek
review of the district court’s judgment.1
ASSIGNMENTS OF ERROR
Dr. Brooks’ collective assignments of error allege the district court erred in
misinterpreting La. R.S. 13:3715.3, the peer review statute, and ordering the
production of his attorney’s privilege log letter.
STANDARD OF REVIEW
A trial court’s regulation of pre-trial discovery is afforded broad discretion
and will not be reversed by an appellate court in the absence of a clear abuse of
discretion. Hendricks v. Wells Fargo Ins., 2021-0109, p. 4-5 (La. App. 4 Cir.
10/27/21) (“Hendricks I”), 366 So.3d 376, 379 (citing Channelside Services., LLC
v. Chrysochoos Group, Inc., 2015-0064, p. 8 (La. App. 4 Cir. 5/13/16), 194 So.3d
1 Ms. Porche (2024-C-0792) and Dr. Brooks (2024-C-0795) also filed writ applications arising
out of the same November 13, 2024 judgment.
5
751, 756) (citing Sercovich v. Sercovich, 2011-1780, p. 5 (La. App. 4 Cir. 6/13/12),
96 So.3d 600, 603)); See also, Beasley v. Cannizzaro, 2018-0520, p. 3 (La. App. 4
Cir. 11/21/18), 259 So.3d 633, 636, citing Kimpton Hotel & Restaurant Group,
Inc. v. Liberty Mut. Fire Ins. Co., 2007-1118, 2007-1209, 2007-1310, p. 7 (La.
App. 4 Cir. 12/19/07), 974 So.2d 72, 77 (“reviewing the trial court’s determination
that materials are not privileged and protected by the work product doctrine under
an abuse of discretion”). This standard of review “is highly deferential to the trial
judge’s determination under consideration,” but “a court necessarily abuses its
discretion if its ruling is based on an erroneous view of the law.” Boudreaux v.
Bollinger Shipyard, 2015-1345, p. 16 (La. App. 4 Cir. 6/22/16), 197 So.3d 761,
771 (citations omitted). As such, if “an appellate court finds [that] the trial court
made a reversible error of law, it is required, whenever the state of the record on
appeal so allows, to redetermine the facts de novo from the entire record and render
a judgment on the merits.” Green v. Canal Ins. Co., 2022-0384, p. 4 (La. App. 4
Cir. 11/14/22), 352 So.3d 99, 102 (citing Hendricks v. Wells Fargo Ins., 2021-
0552, p. 4 La. App. 4 Cir. 3/9/22, 336 So.3d 643, 646 (“Hendricks II”), quoting
Laboriel-Pitio v. Latiker, p. 15 (La. App. 4 Cir. 6/16/21), 323 So.3d 929, 938)
(citations omitted).
Established jurisprudence provides that discovery statutes are to be liberally
and broadly construed to achieve their intended objectives. Stolzle v. Safety &
Systems Assur. Consultants, Inc., 2002-1197, p. 2 (La. 5/24/02), 819 So.2d 287,
289, citing Hodges v. Southern Farm Bureau Cas. Ins. Co., 433 So.2d 125 (La.
1983). During the discovery process, parties “may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter involved in the
pending action, whether it relates to the claim or defense of the party seeking
6
discovery or to the claim or defense of any other party…” La. C.C.P. art. 1422.
“La. Code of Evidence art. 401 “defines ‘Relevant evidence’ as ‘evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.’” Qurashi v. Rosenow, 2022-0424, p. 8 (La. App. 4 Cir.
12/29/22), 367 So.3d 730, 735, quoting La. C.E. art. 401. “The discoverability test
under La. C.C.P. art. 1422, entails first asking whether answering the discovery is
feasible and practicable”; and “[i]f that answer is in the affirmative, then the court
determines whether an answer to the discovery would ‘expedite the litigation by
either narrowing the area of controversy or avoiding unnecessary testimony or
providing a lead to evidence.’” Indus. Pipe, Inc. v. Plaquemines Par. Council,
2012-1348, p. 8 (La. App. 4 Cir. 9/14/12), 100 So.3d 896, 901, citing MTU of N.
Am., Inc. v. Raven Marine, Inc., 475 So.2d 1063, 1067 (La.1985). Thus, “[t]he test
of discoverability is not whether the particular information sought will be
admissible at trial, but whether the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.” Cloud v. Gibson,
2022-0316, p. 4 (La. App. 4 Cir. 7/6/22), 344 So.3d 253, 256, citing Sercovich v.
Sercovich, 2011-1780, pp. 4-5 (La. App. 4 Cir. 6/13/12), 96 So.3d 600, 603
(citation omitted).
DISCUSSION
Dr. Brooks maintains the privilege log letter sent to the district court was in
response to this Court’s order in Porche I to produce for in camera inspection the
documents SLMA initially claimed were protected by the peer review privilege as
set forth in La. R.S. 13:3751.3.2 Therefore, he argues the privilege log letter is not
2 La. R.S. 13.3751.3 states, in relevant part, the following:
7
discoverable as it contains information the November 13, 2024 judgment found
was protected by the peer review statute.3 He contends that inasmuch as different
A. Notwithstanding the provisions of R.S. 44:7(D) or any other law to the
contrary, all records, notes, data, studies, analyses, exhibits, and proceedings of:
(1) Any public hospital committee, medical organization peer review committee,
any nationally recognized improvement agency or commission, including but
not limited to the Joint Commission on Accreditation of Healthcare
Organizations (JCAHO), or any committee or agency thereof, or any healthcare
licensure agency of the Louisiana Department of Health, public hospital board
while conducting peer reviews, dental association peer review committee,
professional nursing association peer review committee, extended care facility
committee, nursing home association peer review committee, peer review
committee of a group medical practice of twenty or more physicians, peer
review committee of a freestanding surgical center licensed pursuant to R.S.
40:2131 et seq., or health maintenance organization peer review committee,
including but not limited to the credentials committee, the medical staff
executive committee, the risk management committee, or the quality assurance
committee, any committee determining a root cause analysis of a sentinel
event, established under the bylaws, rules, or regulations of such organization or
institution, or
(2) Any hospital committee, the peer review committees of any medical
organization, dental association, professional nursing association, nursing home
association, social workers association, group medical practice of twenty or
more physicians, nursing home, ambulatory surgical center licensed pursuant
to R.S. 40:2131 et seq., ambulance service company, health maintenance
organization, any nationally recognized improvement agency or commission,
including but not limited to the Joint Commission on Accreditation of
Healthcare Organizations (JCAHO), or any committee or agency thereof, or any
healthcare licensure agency of the Louisiana Department of Health, or
healthcare provider as defined in R.S. 40:1299.41(A), or extended care facility
committee, including but not limited to the credentials committee, the medical
staff executive committee, the risk management committee, or the quality
assurance committee, any committee determining a root cause analysis of a
sentinel event, established by the peer review committees of a medical
organization, dental organization, group medical practice of twenty or more
physicians, social workers association, ambulatory surgical center licensed
pursuant to R.S. 40:2131 et seq., ambulance service company, health
maintenance organization, or healthcare provider as defined in R.S.
40:1299.41(A), or private hospital licensed under the provisions of R.S. 40:2100
et seq., shall be confidential wherever located and shall be used by such
committee and the members thereof only in the exercise of the proper
functions of the committee and shall not be available for discovery or court
subpoena regardless of where located, except in any proceedings affecting the
hospital staff privileges of a physician, dentist, psychologist, or podiatrist, the
records forming the basis of any decision adverse to the physician, dentist,
psychologist, or podiatrist may be obtained by the physician, dentist,
psychologist, or podiatrist only. However, no original record or document,
which is otherwise discoverable, prepared by any person, other than a member
of the peer review committee or the staff of the peer review committee, may be
held confidential solely because it is the only copy and is in the possession of a
peer review committee. (Emphasis added).
8
privileges were asserted, the privilege log letter was needed to clarify the privilege
claimed as to each particular document.
In opposition, Ms. Porche reiterates there was no order compelling the
production of the privilege log letter; and moreover, the letter contained
inappropriate substantive argument. Ms. Porche adds that the ex parte
communication of the privilege log letters violates Louisiana Rules of Professional
Conduct, Canon 3A(6) of the Louisiana Code of Judicial Conduct, and Louisiana
jurisprudence.
We agree with Ms. Porche that the ex parte communication exemplified by
Dr. Brooks’ privilege log letter is impermissible as discussed hereinbelow:
…The ex parte rules prohibit communication with a judge outside
the presence of or without notice to all parties about the case’s
substance or merits, or about procedural matters that could create a
strategic or tactical advantage.
***
Rule 3.5 of the attorneys’ Rules of Professional Conduct prohibits ex
parte communications with a judge “during the proceeding unless
authorized to do so by law” and prohibits any activity, that “seeks to
influence a judge … by means prohibited by law.” Canon 3A(6) of
the Code of Judicial Conduct prohibits a judge from engaging in ex
parte communications designed to influence his or her judicial
action. The Canon allows ex parte communication as permitted by
law “and where circumstances require for scheduling, administrative
matters or emergencies.” In applying the professional conduct rule
against attorneys, the Louisiana Supreme Court has held that the
Code of Judicial Conduct has the force of law and that any ex parte
attempt to influence a judge by an attorney, unless specifically
permitted by law, is an attempt to “influence a judge by means
prohibited by law.”… Communications need not address the ultimate
merits of the case to violate the ex parte rule; the courts have found
violations from “communications concerning drafting errors,
admissibility of certain evidence and attorney’s fees.”
***
3 NP Burchfield raises similar arguments contesting the production of her privilege log letter in
her writ application, 2024-C-0791.
9
The ex parte rules apply to both written and oral communication. An
attorney may not send and “a judge shall not knowingly accept in
any case briefs, documents or written communications … unless the
contents are promptly made known to all parties.”
***
§ 20.1. Ex parte communications, 21 La. Civ. L. Treatise, Louisiana Lawyering §
20.1 (citations omitted).
In this matter, we find the privilege log letter’s submission exclusively to the
district court amounted to an ex parte substantive pleading, albeit in the form of
correspondence. The letter advanced legal argument to support the documents
were not discoverable; and the necessary intent of such argument was to influence
the district court’s determination as to whether the documents submitted for in
camera inspection were privileged. Thus, we conclude Dr. Brooks’ privilege log
letter to the district court constituted an improper ex parte communication.
Notwithstanding that the privilege log letter was an improper ex parte
communication, Dr. Brooks also iterates the privilege log letter should not be
produced because its production is contrary to the district court’s finding that the
documents produced on his behalf for in camera inspection were protected by the
peer review statute. Moreover, he notes that neither the district court nor the
Porche I decision had previously expressly ordered the production of a privilege
log. These arguments, however, contravene Louisiana law, which requires
production of a privilege log, pursuant to La. C.C.P. art. 1424(C), when a party
withholds documents, claiming a privilege as to otherwise discoverable documents.
Louisiana Code of Civil Procedure art. 1424(C), effective August 1, 2023,
requires that,
When a party withholds information otherwise discoverable under
these rules by claiming that it is privileged or subject to protection as
trial preparation material, the party shall make the claim expressly
10
and shall prepare and send to the other parties a privilege log
that describes the nature of the documents, communications, or
things not produced or disclosed in a manner that, without revealing
information itself privileged or protected, will enable other parties to
assess the applicability of the privilege or protection. (Emphasis
added).
Although the article does not specifically state that the party claiming a privilege
must prepare and send the other parties a privilege log prior to its amendment, the
article still requires that the party claiming a privilege “shall make the claim
expressly” and “shall describe the nature of the documents, communications, or
things not produced or disclosed in a manner that, without revealing information
itself privileged or protected, will enable other parties to assess the applicability of
the privilege or protection.”4 Indeed, the article’s recent amendment was made in
accordance with this Court’s opinion in Cloud v. Gibson, 2022-0316 (La. App. 4
Cir. 7/6/22), 344 So.3d 253. In Cloud, this Court concluded that with reference to
the production of privileged information, the party claiming a privilege had a
mandatory duty to produce a privilege log.5 The Cloud Court reasoned that the
statute used the word shall and that Louisiana jurisprudence provides that use of
the word ‘shall’ establishes a mandatory duty.” Cloud, supra, citing La. R.S. 1:36
4 La. C.C.P. art. 1424(C), effective August 15, 2007 to July 31, 2023, provided:
When a party withholds information otherwise discoverable under these rules by
claiming that it is privileged or subject to protection as trial preparation material,
the party shall make the claim expressly and shall describe the nature of the
documents, communications, or things not produced or disclosed in a manner that,
without revealing information itself privileged or protected, will enable other
parties to assess the applicability of the privilege or protection.
5 The Cloud Court found the trial court erred in not granting the discovery requests of the
Relators (in that case); ordering the production of any non-privileged relevant information prior
to trial; and in not ordering the production of a privilege log. Cloud, 2022-0316, p. 6, 344 So.3d
at 257-258.
6 La. R.S. 1:3 states:
Words and phrases shall be read with their context and shall be construed
according to the common and approved usage of the language. Technical words
11
and Hamilton v. Royal Int’l Petroleum Corp., 2005-0846, p. 11 (La. 2/22/06), 934
So.2d 25, 33.
In this matter, Dr. Brooks clearly asserts a privilege as to certain documents.
Hence, in accordance with the precepts discussed in Cloud, he is required to
produce a privilege log “that describes the nature of the documents,
communications, or things not produced or disclosed in a manner that, without
revealing information itself privileged or protected, will enable [the Plaintiff] to
assess the applicability of the privilege or protection.” See La. C.C.P. art. 1424(C).
Therefore, we conclude the district court did not err in ordering Dr. Brooks to
reproduce his privilege log letter to the court and submit the letter to Ms. Porche
“in the form of a pleading as a ‘privilege log.”’
Nevertheless, we recognize that La. C.C.P. art. 1424(C) qualifies the duty to
produce the privilege log “in a manner that, without revealing information itself
privileged or protected, will enable other parties to assess the applicability of the
privilege or protection.” Consequently, we amend the district court’s judgment to
require the production of the privilege log letter in conformity with the express
provisions of La. C.C.P. art. 1424(C).
CONCLUSION
For the foregoing reasons, we amend the judgment to add that the privilege
letter be produced subject to the express provisions of La. C.C.P. art. 1424(C) and
deny the writ application based on the amended judgment.
and phrases, and such others as may have acquired a peculiar and appropriate
meaning in the law, shall be construed and understood according to such peculiar
and appropriate meaning.
The word “shall” is mandatory and the word “may” is permissive.
12
JUDGMENT AMENDED; WRIT
DENIED AS AMENDED
13