Attorney Client & Work Product Privileges

In Cangelosi v. Capasso (decided 06/30/06), the issue was whether a nurse's notes, which contained her recollection of relevant events and which were authored within a day of the events, prior to any litigation, and which were not turned over to an attorney for 22 months, are protected by either the attorney-client privilege or the work product privilege?Holding: the notes are not privileged and are discoverable in a lawsuit. Reasoning: With respect to the attorney-client privilege, even though the nurse created the notes in anticipation of potential litigation, they were not protected from discovery because they were not created at the direction of an attorney. In fact, the nurse did not have an attorney at the time she wrote the notes. Nor were they created after a lawsuit had been filed. Turning the notes over to an attorney 22 months later did not change the nature of the notes. The work-product privilege did not apply because the notes did not "contain or disclose the theories, mental impressions, or litigation plans of the party's attorney". Bottom Line: Generally speaking, if a healthcare provider (physician, nurse, etc.) creates personal notes to memorialize an event prior to any litigation, the notes will likely be discoverable in a lawsuit unless they are created at the direction of an attorney or perhaps for a specific attorney.