Before the email alert could clear my screen, I was out of my chair and sprinting to our CFO’s office.
I did not even have a chance to read his email, but the subject line told me all that I needed to know.
“A few of my thoughts on the Johnson[1] case, let’s discuss soon.”
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At a high level, the Johnson case is one that our hospital is currently defending wherein the plaintiff alleges our hospital’s prescribed course of care was driven by the cost of the treatment and our expected reimbursement rate rather than what was medically necessary.
The fact our CFO would be involved in preparing our defense should come as no surprise. He is the source of authority on all things financial in our hospital, including the setting of our hospital’s chargemaster as well as our contracts with the various insurance providers.
The fact he put his thoughts on the case in written format and transmitted them to me electronically was, however, horrifying.
Yes, while his direct communications with me do enjoy a degree of privilege, I have heard of one too many tales of a well-meaning judge admitting that one extra communication which proves detrimental to the case to believe privilege alone will save the day. I would prefer such communications do not exist in the first place.
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As I burst into the CFO’s office, I nearly screamed at him to back away from his keyboard with the same gusto as a police officer breaking up an underage drinking party. Before I had managed to catch my breath, I curtly — perhaps too curtly — reminded him the discovery process in the Johnson case was still ongoing and that he ought to think twice before sending any emails on the matter.
And that is when he dropped the real bomb.
He looked at me and sheepishly asked what this discovery process was that I was so concerned about.
In that moment, I realized I had failed my client.
Yes, I had told them at the outset of the case to be mindful of what they put in emails as they could later become admissible in court proceedings, but I had failed to specifically mention the discovery process. I had failed to even make them aware there was a formal process in place whereby opposing counsel could request records from us and we would be compelled to produce them absent good cause.
After emphatically apologizing for his email, he assured me it would not happen again, but the damage had, potentially, been done, and I walked out of his office with a sense of renewed passion for educating my non-legal colleagues on the pitfalls of superfluous electronic communications.
Advancements in communications have been both a blessing and a curse as in-house. While I can now keep in contact with my hospital’s c-suite in a near instantaneous fashion, it comes at the cost of knowing whatever we discuss may later become discoverable.
So take it from my recent panic attack. If you have reminded your non-legal colleagues about the potential pitfalls of their electronic communications, take a moment to remind them again. Socialize words like discovery and subpoena with them.
While they may initially dismiss of you as the office’s Chicken Little, they will come to thank you when you can truthfully respond to opposing counsel’s discovery request with those magic words.
There are no responsive records related to your request.
[1] Edited to preserve confidentiality.
Stephen R. Williams is in-house counsel with a multi-facility hospital network in the Midwest. His column focuses on a little talked about area of the in-house life, management. You can reach Stephen at [email protected].