Notes Written by Defendant in Med Mal Case in Anticipation for Deposition Not Protected From Disclosure

In the case of Ford-Bey v. Professional Anesthesia Services of M.A., LLC, 2020 Pa. Super. 42 (Pa. Super. Feb. 20, 2020 Bowes, J., Olson, J., Ford Elliot, P.J.E.) (Op. by Bowes, J.), the court granted a Plaintiff’s Motion to Compel the disclosure of notes written by a medical personnel defendant on a relevant medical chart in a medical malpractice matter.

The court noted that annotations made on a relevant medical chart by the Defendant at the suggestion of his attorney did not amount to any privileged or confidential information. 

The court reiterated the rule of law that the party asserting the attorney-client privilege bears the burden of establishing that the privilege attaches.

The court found that the privilege did not attach here where the notes by the client were not made for the defense attorney’s use and were not even shown to the attorney. As such, the court found that these notes were not communications between a client and that person‘s attorney that could be deemed to be privileged. 

The court also rejected any notion that the notes made by the Defendant were protected by the attorney work product doctrine.  The court ruled in this fashion given that the only mental impressions contained in the notes were those of the Defendant himself.   The court ruled that mental impressions of a client are not automatically protected from disclosure under the attorney work product doctrine. 

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