The opinion
IN RE: MEDICAL REVIEW * NO. 2024-C-0791
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 RESULT
HERMAN, J., CONCURS IN RESULT
Bryan J. Knight
Mark E. Kaufman
NILES, BOURQUE, & KNIGHT
201 St. Charles Ave., Suite 3700
New Orleans, LA 70170
COUNSEL FOR RELATOR/DEFENDANT
David A. Abramson
Beth E. Abramson
LEWIS, KULLMAN, STERBCOW & ABRAMSON, LLC
601 Poydras St., Suite 2615
New Orleans, LA 70130
COUNSEL FOR RESPONDENT/PLAINTIFF
WRIT GRANTED IN PART;
JUDGMENT AMENDED; WRIT
DENIED IN PART AS AMENDED
MAY 30, 2025
SCJ This writ application arises from a medical malpractice action filed by Plaintiff,
Pamela Porche (“Ms. Porche”), against Relator—Nurse Practitioner Sydney
Burchfield (“NP Burchfield”)—Dr. Eric Brooks (“Dr. Brooks”), 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”). NP Burchfield seeks
supervisory writ review of the district court’s November 13, 2024 judgment. The
judgment ordered NP Burchfield to produce certain documents pursuant to the trial
court’s in camera inspection and NP Burchfield’s “privilege log” communications
sent to the trial court. For the reasons that follow, we grant the writ in part, amend
the judgment, and deny the writ in part 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
1
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 is of the
belief that the medications administered to Travis caused cardiac arrest which
triggered anoxic brain injury, and ultimately, resulted in his death.
Ms. Porche filed a Request for Medical Review Panel on August 9, 2021,
contending that NP Burchfield, Dr. Brooks, 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
2
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
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 383-84.
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 NP Burchfield, Dr. Brooks, 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 for an in camera inspection to
ascertain the applicability of the peer review privilege. Porche, 2022-0707, p. 5,
353 So.3d at 385.
After remand, Ms. Porche filed a motion to compel NP Burchfield, Dr.
Brooks, and SLMA-the employer-to produce a “privilege log” which described the
3
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 NP Burchfield, Dr. Brooks, and SLMA to
produce the withheld documents for an in camera inspection.
Thereafter, NP Burchfield’s counsel submitted the withheld documents to
the district court. The submission included a cover letter to the court outlining the
various privileges regarding the documents;1 including Ms. Porche’s March 30,
2022 Requests for Production responses and documents labeled Burchfield 9
through Burchfield 90.
After the submissions, Ms. Porche filed another motion to compel the
production of the “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 NP Burchfield’s counsel made substantive arguments to
support her privilege claims with respect to each document produced for the in
camera inspection. Moreover, Ms. Porche highlighted 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
1 Attorneys for Dr. Brooks also submitted a “privilege log” letter to the trial court.
4
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;
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, NP Burchfield timely filed notice of intent to
seek review of the district court’s judgment.2
ASSIGNMENTS OF ERROR
NP Burchfield alleges the district court erred in the following respects: (1)
ordering the production of bates stamped 9-22 documents (hereinafter, “narrative
summary”); and (2) ordering the production of her counsel’s privilege log letter.
2 Ms. Porche (2024-C-0792) and Dr. Brooks (2024-C-0795) also filed writ applications arising
out of the judgment.
5
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
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).
6
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
discovery or to the claim or defense of any other party…” La. C.C.P. art. 1422.
“La. Code of Evidence article 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. If 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.
7
Sercovich, 2011-1780, pp. 4-5 (La. App. 4 Cir. 6/13/12), 96 So.3d 600,
603 (citation omitted).
DISCUSSION
We begin our review with NP Burchfield’s claim of attorney-client/work
product privilege.
Attorney-Client Privilege and Work Product Privilege
NP Burchfield maintains the narrative summary produced to the trial court
for in camera inspection, identified as bates stamped 9-22, is privileged, pursuant
to the attorney-client privilege set forth in La. C.E. art. 506(B), and/or the work-
product privilege enunciated in La. C.C.P. art. 1424(A). La. Code of Evidence art.
506(B), in pertinent part, provides:
A client has a privilege to refuse to disclose, and to prevent another
person from disclosing, a confidential communication, whether oral,
written, or otherwise, made for the purpose of facilitating the
rendition of professional legal services to the client, as well as the
perceptions, observations, and the like, of the mental, emotional, or
physical condition of the client in connection with such a
communication, when the communication is:
(1) Between the client or a representative of the client and the client’s
lawyer or a representative of the lawyer.
Louisiana Code of Civil Procedure art. 1424(A) states the following:
The court shall not order the production or inspection of any writing,
or electronically stored information, obtained or prepared by the
adverse party, his attorney, surety, indemnitor, or agent in anticipation
of litigation or in preparation for trial unless satisfied that denial of
production or inspection will unfairly prejudice the party seeking the
production or inspection in preparing his claim or defense or will
cause him undue hardship or injustice. Except as otherwise provided
in Article 1425(E)(1), the court shall not order the production or
inspection of any part of the writing, or electronically stored
information, that reflects the mental impressions, conclusions,
opinions, or theories of an attorney.
8
Under Louisiana law, the party who asserts the attorney-client privilege has
the burden of proving that the privilege applies. Cacamo v. Liberty Mut. Fire Ins.
Co., 1999-1421, p. 8 (La. App. 4 Cir. 10/10/01), 798 So.2d 1210, 1216 (citations
omitted). The elements which must be proven to establish attorney-client privilege
include: (1) the holder of the privilege is or sought to become a client; (2) the
communication was made to an attorney or his subordinate in a professional
capacity; (3) the communication was made outside the presence of strangers; (4)
the communication was made to obtain a legal opinion or services; and (5) the
privilege has not been waived. Cacamo, 1999-1421, p. 8, 798 So.2d at 1216
(citation omitted). “The party asserting privilege must adequately substantiate the
claim and cannot rely on a blanket assertion of privilege.” Id.
Likewise, the party who asserts the attorney work product privilege to avoid
the discovery of documents bears the burden of proof to show the documents were
prepared or obtained in anticipation of litigation. Cacamo, 1999-1421, p. 5, 798
So.2d at 1214 (citation omitted). Moreover, “Louisiana’s work product rule states
that a court shall not order the production of a document prepared by an adverse
party in anticipation of litigation or trial unless the denial of production will
unfairly prejudice the party seeking production.” Cacamo, 1999-1421, p. 4, 798
So.2d at 1214, citing La. C.C.P. art. 1424. “Under no circumstances should a court
order the production of documents reflecting the ‘mental impressions, conclusions,
opinions, or theories of an attorney or an expert.’” Cacamo, 1999-1421, pp. 4-5,
798 So.2d at 1214, quoting La. C.C.P. art. 1424. Louisiana Code of Civil
Procedure art. 1424 provides a two-fold inquiry to determine if the documents are
protected by the privilege, which includes: (1) were the articles obtained or
9
prepared in anticipation of litigation or trial?; and (2) will the party seeking
production be unfairly prejudiced, subject to undue hardship, or subject to injustice
by denial of the discovery? Cacamo, 1999-1421, p. 5, 798 So.2d at 1214, citing
Smith v. Travelers Ins. Co., 418 So.2d 689 (La. App. 4 Cir. 1982), rev’d on other
grounds, 430 So.2d 55 (La. 1983). In determining if the privilege applies, “a court
should consider the content, nature, and purpose of a document, not the date or
time that the document was prepared.” Cacamo, supra, citing Federal Deposit Ins.
Corp. v. Butler, 488 So.2d 741, 743 (La. App. 4th Cir.1986).
In this matter, NP Burchfield represents the narrative summary was
submitted to comply with the district court’s order to produce documents
responsive to Ms. Porche’s requests for production of documents. She explains the
narrative summary was prepared by her and provided to her attorney, with the
expectation that it was “confidential, privileged, and could not be discovered.”
Additionally, NP Burchfield urges the narrative summary is subject to the work-
product doctrine as it self-identifies a document made by her in anticipation of
litigation. In further opposition, NP Burchfield argues the district court never
made a finding that Ms. Porche would be unfairly prejudiced if the narrative
summary was not produced.
We find merit to NP Burchfield’s position that the narrative summary
provided to her attorney was privileged and not discoverable. The Louisiana
Supreme Court has opined that a plaintiff’s letter to her attorneys is subject to the
attorney-client privilege as set forth in La. C.E. art. 506 when the evidence failed
to show the privilege had been waived. See Watson v Spayde, 2001-1955 (La.
3/8/02), 810 So.2d 1164. Correspondingly, the record herein supports NP
10
Burchfield’s claim that the narrative summary was constructed to assist her
attorney in responding to Ms. Porche’s discovery demands. We also note the
record is devoid of any evidence that NP Burchfield waived the attorney-client
privilege so as to render the privilege inapplicable. Therefore, upon applying the
two-prong test to determine the applicability of the attorney-client and work-
product privileges, NP Burchfield’s narrative summary document is non-
discoverable and the district erred in ordering its production.
We now review NP Burchfield’s claim that the trial court erred in ordering
the production of the privilege log letter and finding the privilege log letter
constituted an improper ex parte communication.
Ex Parte Communications/ Privilege Log Letters
NP Burchfield maintains her privilege log letter was sent to the district court
in response to this Court’s order in Porche I to produce for in camera inspection
the documents allegedly protected by the peer review privilege.3 She contends that
inasmuch as different privileges were asserted, the privilege log letter was needed
to clarify the privilege claimed as to each particular document. Further, she argues
the privilege log letter is not discoverable as it contains information the November
13, 2024 judgment found was protected by the peer review statute.
In opposition, Ms. Porche reiterates there was no order compelling the
production of the privilege log letter; and moreover, the letter contained
inappropriate commentary on the merits of the case. Ms. Porche adds that the ex
parte communication of the privilege log letters violates Louisiana Rules of
3 Dr. Brooks also raises similar arguments contesting the production of his privilege log letter in
his writ application, 2024-C-0795.
11
Professional Conduct, Canon 3A(6) of the Louisiana Code of Judicial Conduct,
and Louisiana jurisprudence.
We agree with Ms. Porche that ex parte communication represented by the
privilege log letter is impermissible as discussed below in “Louisiana Lawyering.”
…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.”
***
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
12
were not discoverable; and the necessary result 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 NP Burchfield’s 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, NP Burchfield also iterates that the privilege log letter should not
be produced because its production is contrary to the district court’s judgment
which her documents, with the exception of the narrative summary, were
privileged. Moreover, she asserts that neither the district court nor the Porche I
decision had expressly ordered the production of a privilege log. We find,
however, these arguments are not persuasive. They contravene La. C.C.P. art.
1424(C) which requires the production of a privilege to other parties when the
opposing party withholds documents, claiming a privilege as to otherwise
discoverable documents.
Louisiana Code of Civil Procedure art. 1424(C), effective August 1, 2023,
states:
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 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
13
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 In ordering the production of the
privilege log, Cloud reasoned that it is well-established that the use of the word
‘shall’ establishes a mandatory duty.” Cloud, supra, citing La. R.S. 1:36; and
Hamilton v. Royal Int’l Petroleum Corp., 2005-0846, p. 11 (La. 2/22/06), 934
So.2d 25, 33.
In this matter, NP Burchfield clearly asserts a privilege as to certain
documents. Hence, in accordance with the precepts discussed in Cloud, she 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
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 In Cloud, it was found that the trial court erred in not granting the discovery requests of the
Relators (in that case) and 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
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.
14
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 NP Burchfield’s
counsel to reproduce his privilege log letter to the court and submit 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
produce the privilege log letter in the form of a pleading and allow NP Burchfield
to redact the privilege log pleading in a manner that enables Ms. Porche to assess
the applicability of the privilege(s) asserted, without revealing privileged or
protected information as per La. C.C.P. art. 1424(C).
CONCLUSION
For the foregoing reasons, we grant NP Burchfield’s writ application, in part,
and find the district court erred in ordering the production of the narrative
summary—Bates 9-22—as the summary is non-discoverable pursuant to the
attorney-client privilege, La. C.E. art. 506(B), and the work-product privilege, La.
C.C.P. art. 1424(A).
We deny, in part, NP Burchfield’s writ application with respect to her claim that
the district court erred in ordering the production of her privilege log letter “in the
form of a pleading as a ‘privilege log . . .’” However, in compliance with La.
C.C.P. art. 1424(C), we amend the judgment and allow NP Burchfield to redact her
privilege log letter in a manner that enables Ms. Porche to assess the applicability
15
of the privilege(s) asserted, without revealing any privileged or protected
information.
We amend that part of the trial court’s judgment that ordered the production of
NP Burchfield’s privilege log letter to add that the production be in accordance
with the express provisions of La. C.C.P. art. 1424(C). As amended, we deny NP
Burchfield’s writ application with respect to her claim that the trial court erred in
in ordering the production of the privilege log letter.
WRIT GRANTED IN PART;
JUDGMENT AMENDED; WRIT
DENIED IN PART AS AMENDED
16