Ex parte DCH Regional Medical Center
Decision Date | 11 October 1996 |
Docket Number | 1951206. |
Citation | 683 So.2d 409 |
Parties | Ex parte DCH REGIONAL MEDICAL CENTER In re Rosalyn McCAIN, v. DCH REGIONAL MEDICAL CENTER. |
Court | Alabama Supreme Court |
James J. Jenkins of Phelps, Jenkins, Gibson & Fowler, Tuscaloosa, for Petitioner.
Hank Hawkins, Tuscaloosa, for Respondent.
Pursuant to Rule 21, Ala.R.App.P., DCH Regional Medical Center ("the hospital") has petitioned this Court for a writ of mandamus directing the Court of Civil Appeals to vacate its order of April 16, 1996, setting aside the trial court's March 11, 1996, order compelling discovery. The writ is granted.
The plaintiff, Rosalyn McCain, sued the hospital, alleging negligence and wantonness and seeking damages for an infection that she claims to have contracted while receiving care at the hospital. During discovery, the hospital submitted the following interrogatories to the plaintiff:
The plaintiff responded as follows:
Thereafter, the hospital requested that the plaintiff's attorney produce the tape, which the plaintiff says depicts hospital management personnel discussing "the failure to clean contaminated instruments in all operating rooms at the hospital and the hospital's outpatient center and doctors' complaints concerning the same," and that he also disclose the name of the person who had given him the tape. The plaintiff's attorney produced the tape; however, citing the attorney/client privilege and the work product rule, he refused to disclose the identity of the person who had given him the tape. The trial court granted the hospital's motion to compel this information, and the plaintiff's attorney sought and obtained a writ of mandamus from the Court of Civil Appeals directing the trial court to set aside its order.1
The hospital contends that the plaintiff's attorney failed to meet his burden of proving that the identity of the person who had provided him with the tape was protected from disclosure and, therefore, that the Court of Civil Appeals had no evidentiary basis upon which to set aside the trial court's order. The plaintiff's attorney, citing Ex parte Enzor, 270 Ala. 254, 117 So.2d 361 (1960), and a confidential letter that he submitted to the trial court under seal, contends that he presented sufficient proof to the trial court to establish that the information was protected from disclosure and, therefore, that the Court of Civil Appeals properly set aside the trial court's order. Specifically, the plaintiff's attorney argues that he proved that the disclosure of his source's identity would possibly subject that person to criminal prosecution for providing him with the tape. According to the plaintiff's attorney, this brings this case within the exception to the general rule that the identity of a client is not protected from disclosure under the attorney/client privilege.2 In Ex parte Enzor, this Court, quoting 58 Am.Jur. Witnesses, § 507, discussed that exception:
"`While the disclosure of the identity of the client is not, in and of itself, a matter within the privilege, it may become so by reason of its necessary effect or tendency to reveal the previous connections, conduct, or transactions of the client which are within the privilege, and a direct disclosure of which would concededly be a violation of the privilege; when that condition exists the attorney will not be compelled to disclose the name of his client.'"
270 Ala. at 257, 117 So.2d at 362.
In Ex parte Enzor, a qualified practicing attorney was called before a grand jury in Covington County and asked the following question:
"Will you give us the name of the election official from Beat 3, Box 1, in the last Democratic Primary who told you that he had been offered a sum of money ($100.00) to miscount or tamper with the election results?"
The attorney asserted that this statement had been made to him by a client of his and that his answer would violate the rule of privilege that exists as a result of this attorney/client relationship. After a hearing on a petition to compel disclosure, at which testimony was taken, the trial court asked the attorney to disclose the name of his client. He refused and was held in contempt. After discussing the general rule and the recognized exception noted above, this Court stated:
270 Ala. at 259-60, 117 So.2d at 365-66.
In Ex parte State ex rel. McKinney, 575 So.2d 1024, 1026 (Ala.1990), this Court stated:
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