Burden to Establish Evidentiary Privilege - Ala. Code § 22-21-8 - Privilege Log


Ex parte Estate of Elliott, [Ms. 1170564, Sept. 7, 2018] __ So. 3d __ (Ala. 2018). This decision by Justice Wise issues a writ of mandamus to the Jefferson Circuit Court vacating an order denying certain requests for production of documents made by the Plaintiff in a medical negligence wrongful-death case.

The hospital objected to the production of the employment file of one of its nurses as well as training records for the nurse and the hospital’s nursing policies, procedures, rules, and regulations. The defendants objected to the requests on various grounds, including privileges based on §§ 6-5-333, 6-5-551, 22-21-8, 34-24-59, Ala. Code 1975. Ms. *6-7. The defendants relied solely on the assertions of defense counsel and did not submit an affidavit or any other evidence in an effort to establish that the requested information was privileged and also failed to provide a privilege log. Ms. *7.

The Court held that the trial court exceeded its discretion in denying the Estate’s motion to compel because “the defendants did not satisfy their burden of establishing that the information requested ... was privileged.” Ms. *22, citing Ex parte Coosa Valley Healthcare, Inc., 789 So. 2d 208 (Ala. 2000).

The Court further held that in denying the requests for production without ordering defendants to produce a privilege log “the trial court effectively prevented the plaintiff ‘from making a record on the discovery issue so that an appellate court cannot review the effect of the trial court’s alleged error.’” Ms. *23, quoting Ex parte Ocwen Federal Bank, F.S.B., 872 So. 2d 810, 814 (Ala. 2003). In accordance with its conclusions, the Court granted the Estate’s petition for a writ of mandamus and directed the trial court to order the requested documents produced.

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