James Keefe And Kathy Keefe Vs. Renald Bernard And Mcfarland Clinic, P.c.

IN THE SUPREME COURT OF IOWA

No. 06–1939

Filed October 30, 2009

JAMES KEEFE and KATHY KEEFE,

Appellees,

vs.

RENALD BERNARD and McFARLAND CLINIC, P.C.,

Appellants.

Appeal from the Iowa District Court for Story County, Timothy J.

Finn, Judge.

Interlocutory appeal of order compelling discovery in medical

malpractice action. DISTRICT COURT ORDER AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

Robert C. Rouwenhorst and Susanna Brown of Rouwenhorst &

Brown, P.C., West Des Moines, for appellants.

Thomas P. Slater of Slater & Norris, P.L.C., West Des Moines, for

appellees.

2

STREIT, Justice.

In this interlocutory appeal, we decide if the defendants in a

medical malpractice action must produce a memorandum constituting

attorney work product as a sanction for violation of an Iowa statute

requiring notice before consultation with a plaintiff’s treating physician.

The memorandum memorialized a meeting between defendant’s counsel

and one of plaintiff’s treating physicians, which took place without notice

to the plaintiff. The district court granted plaintiffs’ motion to compel

production of the memorandum. On interlocutory appeal, we hold the

memorandum is not protected by the attorney-client privilege but is

protected by the attorney-work-product doctrine. We also hold counsel

for defendants violated the notice provision in Iowa Code section

622.10(3)(e) (2005) and the appropriate sanction is partial disclosure of

the memorandum.

I. Background Facts and Proceedings. 1

This is a medical malpractice action brought by James and Kathy

Keefe against Dr. Renald Bernard, M.D. and his employer, McFarland

Clinic, P.C. Dr. Bernard treated James Keefe for a shoulder injury. He

eventually referred Keefe to an orthopedic surgeon in the clinic,

Dr. David Sneller, M.D. Dr. Sneller examined Keefe before referring him

to another specialist.

Robert C. Rouwenhorst represents Dr. Bernard and McFarland

Clinic. The Keefes are represented by Thomas P. Slater. In preparation

for trial, Rouwenhorst met with Dr. Sneller and discussed the treatment

and injury that are the subject of this litigation. Rouwenhorst authored

a memorandum to memorialize his recollection of the meeting. This

1The facts are provided solely for the purpose of resolving this motion.

3

meeting took place without the knowledge or consent of Slater or the

Keefes.

Slater learned of the meeting between Rouwenhorst and Dr. Sneller

and the memorandum during a pretrial deposition of Dr. Bernard.

Dr. Bernard stated he had read the memorandum prepared by

Rouwenhorst prior to the deposition and that the memorandum

attributed a statement to Dr. Sneller to the effect that Dr. Bernard could

have made the referral earlier than he did. 2

After Dr. Bernard’s deposition, Rouwenhorst included Dr. Sneller

in the designation of defendant’s expert witnesses. Slater then deposed

Dr. Sneller and sought discovery of the matters Dr. Sneller discussed

with Rouwenhorst. Rouwenhorst repeatedly objected to the questioning

and directed Dr. Sneller not to answer. In response to a separate line of

questioning by Slater, Dr. Sneller testified he did not “really form” an

2During the deposition of Dr. Bernard, the following exchange occurred in

response to questioning by attorney Slater:

Q: All right. Did Dr. Sneller ever call you and tell you what he

had found in respect to this patient? A: No, he never. But I knew -- to

answer a little bit into your question, I knew that he met with Bob, and

I’ve seen the report. Bob talked to me about the report, you know, of the

chart, what he looks at my treatment, you know, on that.

Q: What conversation did you have with Dr. Sneller about the

meeting he had with Bob? A: I just said to him thank you to have taken

the time, you know, with Bob to review the chart, you know, on that.

And I think in gross, I want the report -- when Bob showed me the report

in gross --

Q: What report are you talking about? Are you just talking about

the medical record? MR. ROUWENHORST: It’s a memo that summarizes

my conversation with Dr. Sneller. A: Yeah. And I said thank you to

have that done because I feel it was a good report. I feel it was a good

report. I feel it was -- he was objective and, you know, I don’t think he

did blame me on some, on something specifically, you know, on that.

Q: Did he blame you on anything? A: No, he didn’t. He said he

could have -- he could have refer [sic] a little bit before, a couple two to

three weeks before. You know, a referral to a doctor than [sic] I have

referred. But he said the outcome will be about the same.

4

opinion whether Dr. Bernard should have referred James Keefe to him

earlier than he did. Instead, he testified he was only concerned about

treating his patient at that time.

Rouwenhorst later refused to provide Slater with a copy of the

memorandum, claiming it was protected by the attorney-client privilege

and the attorney-work-product doctrine. The Keefes filed a motion to

compel production of the memorandum and “the mental impressions and

opinions of Dr. Sneller.” The district court held a hearing and conducted

an in camera inspection of the memorandum. The ruling by the district

court only addressed discovery of the memorandum. The court granted

the motion to compel because it held the memorandum:

is not privileged or otherwise protected from discovery either

as an attorney/client communication or under a theory of

“joint representation” or under “work product privilege” or

otherwise protected from discovery and is in fact

discoverable under the Iowa Rules of Civil Procedure.

Dr. Bernard and the McFarland Clinic sought, and we granted,

interlocutory review.

II. Standard of Review.

Our review of a ruling by the district court on a motion to compel

discovery is for abuse of discretion. See Wells Dairy, Inc. v. Am. Indus.

Refrigeration, Inc., 690 N.W.2d 38, 43 (Iowa 2004). “ ‘A ruling based on

an erroneous interpretation of a discovery rule can constitute an abuse

of discretion.’ ” Exotica Botanicals, Inc. v. Terra Int’l, Inc., 612 N.W.2d

801, 804 (Iowa 2000) (quoting Shook v. City of Davenport, 497 N.W.2d

883, 885 (Iowa 1993), overruled on other grounds by Wells Dairy, 690

N.W.2d at 44–47). To the extent a challenge to a trial court ruling on the

admissibility of evidence implicates the interpretation of a statute, our

review is for errors at law. See State v. Stone, 764 N.W.2d 545, 548 (Iowa

2009).

5

III. Merits.

A. Statutory Physician-Patient Privilege. Iowa Code section

622.10(1) provides that a physician or surgeon

shall not be allowed, in giving testimony, to disclose any

confidential communication properly entrusted to the person

in the person’s professional capacity, and necessary and

proper to enable the person to discharge the functions of the

person’s office according to the usual course of practice or

discipline.

There was no physician-patient privilege at common law, and therefore

“the physician-patient privilege arises solely by virtue of section 622.10.”

State v. Bedel, 193 N.W.2d 121, 123–24 (Iowa 1971). However, the

testimonial physician-patient privilege has been recognized by our

legislature for over 150 years. See Iowa Code § 2393 (1851) (representing

an early predecessor to section 622.10).

The statutory physician-patient privilege in section 622.10

prevents a physician from disclosing confidential information in “giving

testimony.” In Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d

353 (Iowa 1986), we addressed ex parte informal interviews between

attorneys and treating physicians. Roosevelt Hotel noted the arguments

that ex parte interviews save time and litigation cost and that such

interviews raise the possibility of inadvertent wrongful disclosure of

confidential matters. Id. at 357. We held section 622.10, as it existed in

1986, did not “speak to” the issue of informal interviews and therefore

did not prevent them. Id. at 355. As a practical matter, however, doctors

were often unwilling to participate in informal interviews because of the

physicians’ own duties of confidentiality. Id. at 356. Although we

recognized that in practice, this reluctance might prevent ex parte

interviews, we refused to hold the patient must provide a waiver that

6

would allow the treating physician to participate in ex parte interviews.

Id. at 357.

In 1997, our legislature amended section 622.10 by adding

subsection 3. 1997 Iowa Acts ch. 197, § 8 (codified at Iowa Code §

622.10 (1999)). Generally, subsection 3 provides a procedure for

defendants in a lawsuit to informally “consult” with a plaintiff’s treating

physician in cases in which the plaintiff’s condition is an element of the

claim. Subsection 3 requires a plaintiff to execute a waiver which allows

the physician to “[c]onsult with the attorney for the adverse party prior to

providing testimony regarding the plaintiff’s medical history and the

condition alleged and opinions regarding health etiology and prognosis

for the condition alleged.” Iowa Code § 622.10(3)(a)(2).

The waiver of the physician-patient privilege for informal

interviews is not unlimited. The legislature counterbalanced the waiver

by requiring the defendant’s counsel to provide written notice of the

consultation allowed by the subsection and to allow plaintiff’s counsel to

be present at the consultation. Id. § 622.10(3)(e).

Section 622.10(3)(e) does not apply to a meeting between a

physician and his or her own attorney. The language of section

622.10(3)(e) refers separately to the “plaintiff’s physician” and the

“defendant,” suggesting they are not one and the same. Any other

interpretation would prevent physician defendants in medical

malpractice suits from consulting with their own defense attorneys and

would prevent defendant or potential defendant physicians and their

employers, hospitals or clinics, from obtaining effective legal

representation. See Harlan v. Lewis, 982 F.2d 1255, 1264–65 (8th Cir.

1993) (noting that although Arkansas discovery rule was interpreted to

prevent ex parte interviews with treating physicians, the language of the

7

rule could not be read to include consultation between a physician and

the physician’s own attorney because the right to counsel “is

meaningless without the ability to converse freely with counsel about the

representation”).

The legislature did not construct a specific remedy within the

statute for noncompliance with the notice requirement under section

622.10(3)(e). 3 However, “trial courts have inherent power to enforce our

discovery rules and have discretion to impose sanctions for a litigant’s

failure to obey them.” White v. Citizens Nat’l Bank of Boone, 262 N.W.2d

812, 816 (Iowa 1978).

Because Iowa Code section 622.10(3) provides a method for

discovery of information pertinent to a pending lawsuit, we hold a trial

court’s discretion to impose discovery sanctions, when appropriate,

applies to violations of section 622.10. A trial court may consider a

variety of sanctions, or may decide sanctions are unwarranted, based on

the circumstances surrounding a violation of the notice provision in

section 622.10(3)(e). See, e.g., Harlan, 982 F.2d at 1257–58, 1261–62

(affirming monetary sanctions for ex parte contact with treating

physicians and also requiring disclosure of attorney notes if treating

physicians called as witness in part because of Arkansas statute

interpreted to prohibit such contact); Manion v. N.P.W. Med. Ctr. of N.E.

Pa., Inc., 676 F. Supp. 585, 595–96 (M.D. Pa. 1987) (granting plaintiff’s

motion in limine to exclude plaintiff’s former treating physicians from

being called as expert witnesses based on defense counsel’s ex parte

contact with those physicians); Younggren v. Younggren, 556 N.W.2d

3Section 622.10(3)(b) provides a remedy if a plaintiff fails to sign a waiver within

the prescribed time period. Under such circumstances the court may order disclosure

or compliance and failure to comply “may be grounds for dismissal of the action or any

other relief authorized under the rules of civil procedure.”

8

228, 233 (Minn. Ct. App. 1996) (holding sanction for failure to follow

Minnesota statute comparable to Iowa Code section 622.10 “could

include a refusal to admit [] evidence. However, the trial court is not

required to impose sanctions. The trial court declined to do so in this

case . . .”). As we discuss below, partial disclosure of a memorandum

summarizing the consultation made in violation of the statute is an

available sanction.

B. Attorney-Client Privilege. The Iowa legislature has codified

the attorney-client privilege: Iowa Code section 622.10 bars attorneys

from disclosing confidential communications. “Any confidential

communication between an attorney and the attorney’s client is

absolutely privileged from disclosure against the will of the client.”

Shook, 497 N.W.2d at 886. This privilege is “of ancient origin. It is

premised on a recognition of the inherent right of every person to consult

with legal counsel and secure the benefit of his advice free from any fear

of disclosure.” Bailey v. Chicago, Burlington & Quincy R.R., 179 N.W.2d

560, 563 (Iowa 1970). The party seeking to assert the privilege bears the

burden to show an attorney-client relationship existed and that the

communication was made in confidence. Id. at 564.

Rouwenhorst asserts he is Dr. Sneller’s personal attorney, and

therefore section 622.10 would not prevent an ex parte informal meeting.

In the alternative, Rouwenhorst asserts section 622.10 is inapplicable

because he is the attorney for McFarland Clinic and Dr. Sneller is an

employee of the clinic within the attorney-client privilege. He further

asserts it was consistent with the attorney-client privilege to share the

memorandum with Dr. Bernard because of the “joint client” exception.

We hold the memorandum was not protected by the attorney-client

privilege of either Dr. Sneller personally or McFarland Clinic.

9

1. Personal Attorney-Client Privilege. We question whether

Rouwenhort’s assertion that he is Dr. Sneller’s attorney is enough to

carry the burden to show an attorney-client relationship in this context.

Although there may be circumstances in which a lawyer may represent

two physicians individually as well as their employer, the soundness of

such a claim in this particular context is brought into question by the

potential conflict of interest. 4 Dr. Sneller’s actions have not been

implicated in the suit against Dr. Bernard and McFarland Clinic.

Regardless, Dr. Sneller is entitled to consult a personal attorney without

the presence of patients’ attorneys. If Dr. Sneller consulted Rouwenhorst

for legal advice, those past conversations must be privileged. 5 See Iowa

Code § 622.10(1).

There has been no showing, however, that the memorandum at

issue was prepared pursuant to an attorney-client consultation between

Rouwenhorst and Dr. Sneller personally. Based on an in camera review,

4

See State v. Smitherman, 733 N.W.2d 341, 348 (Iowa 2007) (noting conflict of

interest where defense co-counsel represented prosecution witness in separate case but

holding new trial was not required because defendant was not adversely affected where

co-counsel withdrew); State v. Watson, 620 N.W.2d 233, 241–42 (Iowa 2000) (holding

defense counsel had actual conflict of interest where he concurrently represented

prosecution witness and ordering new trial); Iowa R. Prof’l Conduct 32:1.7 cmt. 6 (“[A]

directly adverse conflict may arise when a lawyer is required to cross-examine a client

who appears as a witness in a lawsuit involving another client, as when the testimony

will be damaging to the client who is represented in the lawsuit.”).

5The proper remedy for a conflict of interest between two current clients is

attorney disqualification from one or both representations, not forced disclosure of the

attorney’s privileged conversations with either client. See Iowa R. Prof’l Conduct 32:1.7

cmts. 4–5 (“If a conflict arises after representation has been undertaken, the lawyer

ordinarily must withdraw from the representation . . . . Where more than one client is

involved, whether the lawyer may continue to represent any of the clients is determined

both by the lawyer’s ability to comply with duties owed to the former client and by the

lawyer’s ability to represent adequately the remaining client or clients, given the

lawyer’s duties to the former client. . . . The lawyer must continue to protect the

confidences of the client from whose representation the lawyer has withdrawn.”

(emphasis added)).

10

the memorandum does not reflect legal advice sought by Dr. Sneller. 6

Instead, it demonstrates an investigation by Rouwenhorst into the

hospital’s liability for Dr. Bernard’s actions. The memorandum is

therefore not protected by Dr. Sneller’s personal attorney-client

privilege. 7 Rouwenhorst cannot claim each witness as his client to

prevent factual discovery. See Samaritan Found. v. Goodfarb, 862 P.2d

870, 880–81 (Ariz. 1993) (holding hospital’s attorney could not “silence

the employees by shielding their communications in the cloak of the

[personal] attorney-client privilege” where the employees were interviewed

regarding what they witnessed and not their own actions and the

employees did not perceive a need for legal advice); cf. Restatement

(Third) of The Law Governing Lawyers § 14 cmt. f, at 130 (2000) (“Where

appropriate, due consideration should be given to the unreasonableness

of a claimed expectation of entering into a co-client status when a

significant and readily apparent conflict of interest exists between the

organization or other client and the associated person or entity claimed

to be a co-client.”).

2. Corporate Attorney-Client Privilege. Rouwenhorst argues even if

his memorandum is not protected by his alleged personal representation

6The district court considered the memorandum at issue in camera and we have

done the same. See Wells Dairy, 690 N.W.2d at 49; Tausz v. Clarion-Goldfield Cmty.

Sch. Dist., 569 N.W.2d 125, 128 (Iowa 1997).

7Additionally, even if the memorandum was protected by Dr. Sneller’s personal

attorney-client privilege, the privilege may have been waived when the memorandum

was shown intentionally to Dr. Bernard or when Dr. Bernard gave deposition testimony

about the substantive content of the memorandum. See Restatement (Third) of The

Law Governing Lawyers § 79, at 596 (“The attorney-client privilege is waived if the

client, the client’s lawyer, or another authorized agent of the client voluntarily discloses

the communication in a nonprivileged communication.”). It is unlikely that Dr. Sneller

and Dr. Bernard could be considered joint clients in a situation where Dr. Sneller is

expressing an opinion as a subsequent treating physician and potential expert because

such representation is limited by “the extent of the legal matter of common interest.”

Restatement (Third) of The Law Governing Lawyers § 75 cmt. c, at 580.

11

of Dr. Sneller, it is protected because Dr. Sneller is employed by

Rouwenhorst’s client McFarland Clinic. Therefore, we must determine

whether the memorandum is protected based on McFarland Clinic’s

attorney-client privilege. 8

This court has yet to address the proper test to determine when

communications between legal counsel for a corporate entity and its

employees or agents are privileged under the attorney-client privilege.

Because a corporate entity “can only act through its agents,” some

communications between agents and corporate counsel must be

protected if corporate entities are to have legal representation.

Samaritan Found., 862 P.2d at 875. Some courts have adopted a

“control group” test which extends a corporate entity’s attorney-client

privilege to the corporate employees who are in a position to control or

take a substantial part in corporate decisions. Upjohn Co. v. United

States, 449 U.S. 383, 390, 101 S. Ct. 677, 683, 66 L. Ed. 2d 584, 591–92

(1981). The U.S. Supreme Court, acting pursuant to federal common

law, rejected this “control group” doctrine, but declined to affirmatively

proscribe a test. Id. at 390–91, 101 S. Ct. at 683, 66 L. Ed. 2d at 592

(stating the control group test “overlooks the fact that the privilege exists

to protect not only the giving of professional advice to those who can act

on it but also the giving of information to the lawyer to enable him to give

sound and informed advice”).

Other courts have also created tests for determining the limits of a

corporation’s attorney-client privilege. In Harper & Row Publishers, Inc.

8The Keefes sued Dr. Bernard and his employer, McFarland Clinic, based on

vicarious liability. It is likely that Dr. Bernard and McFarland Clinic are joint clients

and therefore the attorney-client privilege would not be waived by disclosure of the

memorandum to Dr. Bernard. We need not reach this issue, however, because we hold

below that the memorandum was not protected by McFarland Clinic’s attorney-client

privilege.

12

v. Decker, 423 F.2d 487 (7th Cir. 1970), aff’d by an equally divided court,

400 U.S. 348, 91 S. Ct. 479, 27 L. Ed. 2d 433 (1971), the Seventh Circuit

rejected the “control group” test. Harper & Row held communications by

corporate employees to legal counsel were privileged where the

employee’s disclosures were made at the direction of their corporate

superiors and the subject matter was the “performance by the employee

of the duties of his employment.” 423 F.2d at 491–92. The court noted

it was “not dealing in this case with the communications of employees

about matters as to which they are virtually indistinguishable from

bystander witnesses.” Id. at 491. The test crafted in Harper & Row is

often referred to as the “subject matter” test.

In Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir.

1978) (rehearing en banc), the court adopted the “subject matter” test,

but with additional limitations. Diversified held the attorney-client

privilege applies to employee communications where:

(1) the communication was made for the purpose of securing

legal advice; (2) the employee making the communication did

so at the direction of his corporate superior; (3) the superior

made the request so that the corporation could secure legal

advice; (4) the subject matter of the communication is within

the scope of the employee’s corporate duties; and (5) the

communication is not disseminated beyond those persons

who, because of the corporate structure, need to know its

contents.

Id. at 609.

In Samaritan Foundation, the Supreme Court of Arizona considered

these tests and focused on whether the subject matter of the

communication concerns actions by an employee that have “exposed the

corporation to liability” or whether it is “fair to characterize the employee

as a ‘witness’ rather than as a client.” 862 P.2d at 875–77. In Samaritan

Foundation, the plaintiff had sued a hospital and physicians based on a

problem during surgery. A hospital paralegal interviewed three nurses

13

and a scrub technician who had observed the surgery. Id. at 873. The

Arizona Supreme Court held the memoranda were not protected by the

hospital’s attorney-client privilege because the nurses were interviewed

as witnesses. Id. at 880–81.

We agree with the United States Supreme Court that the corporate

attorney-client privilege should not be limited to those in the “control

group.” Instead, the test must focus on the substance and purpose of

the communication. If an employee of a corporation or entity discusses

his or her own actions relating to potential liability of the corporation,

such communications are protected by the attorney-client privilege. See

Samaritan Found., 862 P.2d at 876 (“It is universally accepted that

communications directly initiated by an employee to corporate counsel

seeking legal advice on behalf of the corporation are privileged.”). If, on

the other hand, a corporate employee is interviewed as a “witness” to the

actions of others, the communication should not be protected by the

corporation’s attorney-client privilege. 9

Here, to the extent Dr. Sneller discussed his own actions and

McFarland Clinic’s potential liability for his actions with McFarland

Clinic’s attorney, Rouwenhorst, such communications are protected by

McFarland Clinic’s attorney-client privilege. However, to the extent Dr.

Sneller discussed his observations as a witness to or expert on the effects

of Dr. Bernard’s treatment of the patient, his communications are not

protected by McFarland Clinic’s attorney-client privilege. Based on our

9When a corporate employee participates in discussions with legal counsel

because of his or her position within the corporate decision making structure, not

because of either the employee’s own actions or what the employee has witnessed, such

communications are also protected by the corporation’s attorney-client privilege. Cf.

Diversified, 572 F.2d at 609 (material protected if “not disseminated beyond those

persons who, because of the corporate structure, need to know its contents” (emphasis

added)). There has been no suggestion that Dr. Sneller was consulted in this capacity.

14

in camera review of the memorandum prepared by Rouwenhorst, we find

the memorandum reflects Dr. Sneller’s observations as a witness or

expert regarding Dr. Bernard’s treatment decisions based on his position

as a subsequent treating physician. Therefore, the memorandum is not

protected by McFarland Clinic’s attorney-client privilege.

Because we conclude the memorandum is not protected by the

attorney-client privilege, we hold Rouwenhorst was not shielded from the

notice provision of Iowa Code section 622.10(3)(e). Even when a

memorandum is not protected by the attorney-client privilege, however, it

may still be protected by the attorney-work-product doctrine if prepared

in anticipation of litigation. Therefore, we must consider the interaction

of the attorney-work-product doctrine and non-compliance with Iowa

Code section 622.10.

C. Attorney Work Product. Iowa Rule of Civil Procedure 1.503(3)

codifies a qualified immunity from discovery of materials prepared in

anticipation of litigation. 10 Shook, 497 N.W.2d at 886. Rule 1.503(3)

[previously rule 122(c)] closely tracks Federal Rule of Civil Procedure

26(b)(3), “and the history and cases under the federal rule provide

guidance in interpreting the Iowa counterpart.” Id.

10The rule provides:

Subject to the provisions of rule 1.508, a party may obtain discovery of

documents and tangible things otherwise discoverable under rule

1.503(1) and prepared in anticipation of litigation or for trial by or for

another party or by or for that other party’s representative (including the

party’s attorney, consultant, surety, indemnitor, insurer, or agent) only

upon a showing that the party seeking discovery has substantial need of

the materials in the preparation of the case and that the party seeking

discovery is unable without undue hardship to obtain the substantial

equivalent of the materials by other means. In ordering discovery of such

materials when the required showing has been made, the court shall

protect against disclosure of the mental impressions, conclusions,

opinions, or legal theories of an attorney or other representative of a

party concerning the litigation.

Iowa R. Civ. P. 1.503(3).

15

Federal rule 26(b)(3) codifies immunity for attorney work product

recognized in the landmark case of Hickman v. Taylor, 329 U.S. 495, 67

S. Ct. 385, 91 L. Ed. 451 (1947). In Hickman, the Supreme Court

recognized the privacy interests of an attorney in preparing the client’s

case, but stopped short of declaring attorney work product absolutely

immune from discovery in all cases. Id. at 511, 67 S. Ct. at 394, 91

L. Ed. at 462. Instead, the Court held, “[w]here relevant and non-

privileged facts remain hidden in an attorney’s file and where production

of those facts is essential to the preparation of one’s case, discovery may

properly be had.” Id.

Courts generally interpret Hickman as providing two layers of

protection for attorney work product. See 8 Charles Alan Wright, Arthur

R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2026, at

396–402 (2d ed. 1994). Generally, federal rule 26(b)(3) “permits

disclosure of documents and tangible things constituting attorney work

product upon a showing of substantial need and inability to obtain the

equivalent without undue hardship.” Upjohn, 449 U.S. at 400, 101 S. Ct.

at 688, 66 L. Ed. 2d at 598. However, Hickman and rule 26(b)(3) accord

“special protection to work product revealing the attorney’s mental

processes.” Id.

Like its federal counterpart, Iowa Rule of Civil Procedure 1.503(3)

provides for production of “documents and tangible things” that have

been “prepared in anticipation of litigation” by opposing counsel “only

upon a showing that the party seeking discovery has substantial need of

the materials . . . and . . . is unable without undue hardship to obtain

the substantial equivalent of the materials by other means.” Iowa R. Civ.

P. 1.503(3). This rule requires the court, however, to “protect against

disclosure of the mental impressions, conclusions, opinions, or legal

16

theories of an attorney” when ordering such discovery. Iowa R. Civ. P.

1.503(3).

As was the case in Hickman and Upjohn, the Keefes are demanding

discovery of attorney notes of a witness’s statement created in

anticipation of litigation. 11 This type of discovery has been held to be

opinion work product. Baker v. Gen. Motors Corp., 209 F.3d 1051, 1054

(8th Cir. 2000). “Attorney notes reveal an attorney’s legal conclusions

because, when taking notes, an attorney often focuses on those facts

that she deems legally significant.” Id.; see also Upjohn, 449 U.S. at 399–

400, 101 S. Ct. at 687–88, 66 L. Ed. 2d at 597–98 (“Forcing an attorney

to disclose notes and memoranda of witnesses’ oral statements is

particularly disfavored because it tends to reveal the attorney’s mental

processes . . . .”).

We agree a memorandum prepared by counsel concerning

counsel’s recollections of an interview with a treating physician in a

medical malpractice case constitutes attorney work product. Therefore,

the memorandum at issue in this case constitutes attorney work

product. Facts or information contained in the memorandum are

discoverable upon a showing of “substantial need” and “undue

hardship.” However, in accordance with the two tiers of work product

recognized by Iowa rule 1.503(3), we hold “so much of the work product

that reflects the mental impressions or opinions of the lawyer is, for all

practical purposes, absolutely immune from discovery.” Shook, 497

N.W.2d at 886; accord Squealer Feeds v. Pickering, 530 N.W.2d 678, 689

(Iowa 1995) (citing Shook), overruled on other grounds by Wells Dairy, 690

N.W.2d at 44–47.

11There is no dispute the memorandum at issue in this case was produced in

anticipation of litigation.

17

We specifically reject the claim by the Keefes that such a

memorandum cannot constitute work product because the physician’s

statements recorded by defense counsel were initially the mental

impressions of the physician. Mental impressions of an expert are

discoverable under Iowa Rule of Civil Procedure 1.508, but not mental

impressions that have been filtered through the mental processes of an

attorney and transformed into attorney work product. We also reject the

claim that a memorandum cannot qualify as attorney work product when

the mental impressions and information in the memorandum emanated

from a process that was not compliant with the statute governing

discovery of the information. With or without the required statutory

notice, the information gathered and impressions formulated became

attorney work product. Therefore, the Keefes were required to make the

special showing required by rule 1.503(3) for the discovery of attorney

work product. 12 (We will separately consider whether noncompliance

with the governing statute by an attorney serves as an additional ground

to permit discovery of attorney work product.)

We first examine whether the Keefes have a substantial need for

the memorandum and the information is unavailable by other means.

Iowa R. Civ. P. 1.503(3); Upjohn, 449 U.S. at 400, 101 S. Ct. at 688, 66

L. Ed. 2d at 598. When a witness is available to provide discovery and to

testify at trial, it is normally unnecessary for one attorney to gain access

12

Attorney work product was not waived when Rouwenhorst showed the

memorandum to Dr. Bernard. See Restatement (Third) of The Law Governing Lawyers §

91 cmt. b, at 662 (“Work product, including opinion work product, may generally be

disclosed to the client . . . .”). The Keefes also argue attorney work product protection of

the memorandum was waived when Dr. Bernard discussed substantive portions of the

memorandum during his deposition. As will be noted below, we order partial disclosure

of non-opinion work product contained in the memorandum, including the statement

attributed to Dr. Sneller and referenced by Dr. Bernard in his deposition. Because Dr.

Bernard disclosed only non-opinion work product, we do not address the issue of

waiver. Cf. In re Martin Marietta Corp., 856 F.2d 619, 626 (4th Cir. 1988) (holding

waiver applied only to non-opinion work product).

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to the notes of an opposing counsel who has met with the witness in

preparation for trial. See, e.g., Baker, 209 F.3d at 1054 (“Discovery of a

witness statement to an attorney is generally not allowed if that witness

is available to the other party.”); In re Grand Jury Proceedings, 473 F.2d

840, 849 (8th Cir. 1973) (reversing district court’s order to compel

discovery of attorney’s recollections or written summaries of witness

statements when “[o]ther than its conjecture that ‘something different

might have been said’ the Government has offered little if any evidence

upon which a finding of good cause could be predicated”). Dr. Sneller is

not unavailable. Slater had the opportunity to ask Dr. Sneller if he had

ever formed or expressed an opinion that Dr. Bernard should have

referred the patient earlier than he did. Slater also had the opportunity

to ask Dr. Sneller if Dr. Bernard could have referred James Keefe earlier.

The Keefes claim special circumstances establish a substantial

need for the memorandum authored by Rouwenhorst in this case.

Without the memorandum, the Keefes assert they cannot otherwise know

if Dr. Sneller expressed an opinion to Rouwenhorst regarding the timing

of the referral that is inconsistent with his deposition testimony. Thus,

the Keefes primarily want the memorandum as a potential source to

impeach Dr. Sneller with a prior inconsistent statement made to

Rouwenhorst or to help show at trial that he may have changed his

opinion.

We conclude the record fails to support the Keefes’ claim of

substantial need. The Keefes have shown no greater need for the

memorandum than would ordinarily occur when one attorney discusses

a case with a witness or expert outside the presence of opposing counsel.

As noted above, the district court ordered the memorandum produced

based on a determination that it was not protected by the attorney work

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product doctrine. Because the memorandum is protected by the

attorney-work-product doctrine, the district court abused its discretion

in ordering the memorandum produced without a showing of substantial

need. We will now consider whether the memorandum was, nonetheless,

discoverable as a sanction for Rouwenhorst’s violation of section

622.10(3).

D. Remedy for Violation of Iowa Code Section 622.10. As

noted above, Iowa Code section 622.10(3) represents a compromise

position reached by our legislature which allows defense attorneys to

meet informally with treating physicians when a plaintiff’s condition is at

issue in litigation by forcing the plaintiff to provide a waiver, but imposes

certain restraints. The defense attorney must provide the plaintiff’s

counsel with notice and an opportunity to be present at the meeting. As

noted above, we hold Rouwenhorst was required to follow the notice

provision in section 622.10(3)(e).

The Keefes assert if Rouwenhorst had properly given notice of his

meeting with Dr. Sneller, the Keefes’ counsel would have heard the

analysis provided by Dr. Sneller and would not be in the position of

seeking the memorandum containing Rouwenhorst’s work product.

Therefore, the Keefes argue, disclosure of the memorandum is the

appropriate remedy in this circumstance.

We conclude an appropriate sanction under these circumstances

is disclosure of facts, information, and statements in the memorandum

attributable to Dr. Sneller, even though, as we held above, such

statements are attorney work product when filtered into a memorandum

by an attorney. Statements made by Dr. Sneller cannot be shielded from

discovery where the Keefes’ counsel should have had the opportunity to

be present at the meeting. However, we hold the second tier of work

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product—any “mental impressions, conclusions, opinions, or legal

theories” of Rouwenhorst—are still protected from disclosure. Iowa R.

Civ. P. 1.503(3); see also Shook, 497 N.W.2d at 886 (“[S]o much of the

work product that reflects the mental impressions or opinions of the

lawyer is, for all practical purposes, absolutely immune from discovery.”).

Therefore, we remand to the trial court for redaction of opinion work

product in camera before production to the Keefes.

IV. Conclusion.

The memorandum at issue is not protected from discovery by the

attorney-client privilege. The memorandum is generally protected from

discovery by the attorney-work-product doctrine. However, in this case

we compel production of the memorandum, after redaction in camera for

attorney mental impressions, opinions, or legal theories, as a remedy for

violation of Iowa Code section 622.10. We affirm in part and reverse in

part the district court. The case is remanded for further proceedings

consistent with this opinion.

DISTRICT COURT ORDER AFFIRMED IN PART, REVERSED IN

PART, AND REMANDED WITH INSTRUCTIONS.

All justices concur, except Baker, J., who takes no part.