PADI Says Member Incident Reports Are Not Privileged

From: Spencer BrownTo: David G. ConcannonCc: [email protected]; [email protected]; Matthew T. Charles; Roger Bullock; Mark A. HruskaSubject: RE: Tuvell v. BSA, et alDate: Thursday, October 24, 2013 1:37:50 PMAttachments: image005.png

image006.png

David, While we do not believe that PADI 0106-0107 are privileged, we acknowledge your position. Accordingly, we will recall the documents and include them in our privilege log, which will be sent toyou on Friday. If any other party requests any of the withheld documents, we will address the issuewith the court at that time. Yours very truly, Spencer BrownSTRONG & HANNI3 Triad Center, Suite 500Salt Lake City, UT 84180Telephone: (801) 323-2175Facsimile: (801) 596-1508E-mail: [email protected]

CONFIDENTIALITY NOTICE: This transmission is intended for the sole use of the individual or entityto whom it is addressed and may contain information that is confidential, attorney-client privileged,or otherwise exempt, by law, from disclosure. Any dissemination, distribution, copying, or taking ofany action in reliance on the contents of this transmission, by someone other than the intendedaddressee or its authorized agent is strictly prohibited. If you have received this transmission inerror, please notify the law firm of Strong & Hanni immediately at the telephone number listedabove, or by reply to this transmission.

From: David G. Concannon [mailto:[email protected]] Sent: Wednesday, October 23, 2013 3:14 PMTo: Spencer BrownCc: [email protected]; [email protected]; Matthew T. Charles; Roger Bullock; Mark A. HruskaSubject: Re: Tuvell v. BSA, et al

Spencer,

DGC

Highlight

Thank you for the clarification regarding the addressing of the e-mail. The Blue Water Defendants do, indeed, assert that the statements contained in an incident reportthat a PADI Member is required to make to PADI after an incident are privileged, as are any internalPADI documents that quote from or summarize these factual statements. If PADI disagrees, I thinkthis topic is something that the entire dive industry will have to discuss as a result of this litigation. At a minimum, this issue could be a hot topic of discussion among the thousands of PADI Membersthat may believe the statements they are required to make to PADI are privileged and will not besubsequently produced to plaintiffs' attorneys in litigation, inadvertently or otherwise. Please takethe afternoon to reconsider and let me know your final position by tomorrow. Thank you, David

On Oct 23, 2013, at 2:00 PM, "Spencer Brown" <[email protected]> wrote:

David, Thank you for your email. To clear up any confusion regarding delivery of my October18, 2013 letter, the letter was sent via email and U.S. mail. Mark Hruska did not sendthe letter, although his name was included on the signature block. It was sent by myoffice under my signature. The letter was attached to an email by my administrativeassistant, Cynthia Stock, at 4:11 p.m. As you can see from her email below, it was sentto you. If you did not receive this email, please let us know and we will work todetermine if there was any error in our system. It was certainly not our intent to cutyou out of the conversation. We decline to recall the documents bates-labeled PADI 0106 and PADI 0107 asrequested in your email. After review of these pages, we do not believe that they aresubject to any privilege or work product protection. As you know, the Douglas andHuber statements were part of an incident report that was designated as “prepared forthe purpose of receiving legal advice or for use in anticipated litigation.” While we donot believe that the statements are privileged, we understand that Blue Water mayintend to assert that privilege, and we will have to address that issue in the future. That is why we recalled the statements when we discovered that they wereinadvertently produced. In contrast, pages 106 and 107 are forms contained in PADI’sfiles and prepared in PADI’s ordinary course of business. Therefore, they are notprivileged and will not be recalled. Please contact us with any discussion. Yours very truly,

DGC

Highlight

DGC

Highlight

Spencer Spencer BrownSTRONG & HANNI3 Triad Center, Suite 500Salt Lake City, UT 84180Telephone: (801) 323-2175Facsimile: (801) 596-1508E-mail: [email protected]<image002.png> <image003.png> CONFIDENTIALITY NOTICE: This transmission is intended for the sole use of theindividual or entity to whom it is addressed and may contain information that isconfidential, attorney-client privileged, or otherwise exempt, by law, from disclosure. Any dissemination, distribution, copying, or taking of any action in reliance on thecontents of this transmission, by someone other than the intended addressee or itsauthorized agent is strictly prohibited. If you have received this transmission in error,please notify the law firm of Strong & Hanni immediately at the telephone numberlisted above, or by reply to this transmission.

From: David G. Concannon [mailto:[email protected]] Sent: Tuesday, October 22, 2013 5:05 PMTo: [email protected]; [email protected]; Matthew T. Charles; Roger Bullock; SpencerBrown; Mark A. HruskaSubject: RE: Tuvell v. BSA, et al

Gentlemen, I was traveling on business for the past several days and I am going out of town againtomorrow. I was surprised to see that Mark Hruska’s letter dated October 18, 2013was not e-mailed to me, although it is addressed to me. I received the letter for thefirst time yesterday, after it was forwarded to me by counsel for the BSA. In thefuture, please copy me on all correspondence, especially when this correspondenceaddresses privileged documents from my client to PADI, that were “inadvertentlyproduced” by PADI to all of the parties in this litigation and you ask the recipients toreturn without reading. Furthermore, although my associate returned documents Bates numbered PADI 0109-11 on the basis of privilege, in accordance with the request in your letter, the natureof the documents is described in the “Attachments” section of the document Batesnumbered PADI 0106: “Narratives from incident report.” However, the facts withinthe privileged communications that are contained in the “Narratives from incidentreport” (PADI 0109-11) are summarized almost verbatim in the “SUMMARY”section of PADI 0106, and you have not recalled these privileged communicationsunder the “claw back provision” of the parties’ Fed. R. Civ. P 26(f) report or underFed. R. Civ. P 26(b)(5)(B). Please do so immediately.

DGC

Highlight

To be clear, Corbett Douglas, Lowell Huber and Blue Water Scuba of Logan areasserting that the facts and communications that they had with PADI are privilegedunder the attorney-client privilege and work product doctrine, and that PADI has noright to disclose these privileged communications or the facts contained therein toanyone without the express written consent of Corbett Douglas, Lowell Huber andBlue Water Scuba of Logan, which you do not have. PADI’s disclosure of thesecommunications without the consent of Corbett Douglas, Lowell Huber and BlueWater Scuba of Logan does not constitute a waiver of any applicable privileges by thepeople making the communications to PADI. We respectfully request that PADIimmediately request the destruction and return of the documents labeled PADI 0106-07 by the recipients of these documents pursuant to Fed. R. Civ. P 26(b)(5)(B). Thank you. Sincerely, David G. ConcannonLaw Offices of David G. Concannon, LLC200 Eagle Road, Suite 116Wayne, Pennsylvania 19087Phone: (610) 293-8084Fax: (610) [email protected] *****CONFIDENTIALITY NOTICE***** This email, including attachments, is intended for the exclusive use of the person orentity to which it is addressed and may contain confidential or privileged information.If the reader of this email is not the intended recipient or his or her authorized agent,the reader is hereby notified that any dissemination, distribution or copying of thisemail is prohibited. If you have received this email in error please notify the senderby reply email of the error and then delete this email immediately. From: Mike Skolnick [mailto:[email protected]] Sent: Monday, October 21, 2013 11:06 AMTo: [email protected]; David G. Concannon; [email protected]; [email protected];[email protected]; [email protected]; Matthew T. Charles; [email protected];[email protected]; [email protected]; Mark A. Hruska;[email protected]: Mike Skolnick; Catherine Rice; Nancy Thomas; Sam GobleSubject: RE: Tuvell v. BSA, et al Gentlemen – Per Spencer’s request, we are segregating and deleting the indicateddocuments. <image004.jpg>

From: Cynthia A. Stock [mailto:[email protected]]

DGC

Highlight

Sent: Friday, October 18, 2013 4:11 PMTo: [email protected]; [email protected]; [email protected];[email protected]; [email protected]; [email protected]; [email protected];Mike Skolnick; [email protected]; [email protected]; Sam GobleCc: Roger Bullock; Spencer Brown; Mark A. HruskaSubject: Tuvell v. BSA, et al

Tuvell v. BSA, et al Please find attached:

1. October 18, 2013 letter from Spencer Brown re privileged documents. Please direct responses or questions to Roger Bullock or Spencer Brown. If you have any difficulty opening the attachment please contact me directly. Thank you. Have a great day. Cynthia StockExecutive AssistantStrong & Hanni3 Triad Center, Suite 500Salt Lake City, UT 84180801.323.2033Fax: [email protected]

This email message has been delivered safely and archived online by Mimecast.For more information please visit http://www.mimecast.com



This email message has been delivered safely and archived online by Mimecast. For moreinformation please visit http://www.mimecast.com

From: David G. ConcannonTo: Cynthia A. StockCc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected];

[email protected]; [email protected]; [email protected];[email protected]; [email protected]; [email protected]; Roger Bullock; Spencer Brown;Mark A. Hruska; Alton J. Hall Jr.

Subject: Re: Tuvell v. BSA, et alDate: Friday, October 25, 2013 5:52:06 PM

Counsel,

On behalf of Defendants Corbett Douglas, Lowell Huber and Blue Water Scuba of Logan, we also assertthat the attorney-client privilege applies to the documents withheld from disclosure by PADI on the basisof the application of the work product doctrine. We hereby invoke the "claw back" provision of theparties' proposed discovery an and request the immediate destruction and return of these documents inaccordance with the Federal Rules of Civil Procedure.

Thank you for your compliance with this request. Please confirm that you have confirmed by return e-mail.

Sincerely,

David Concannon

> On Oct 25, 2013, at 4:45 PM, "Cynthia A. Stock" <[email protected]> wrote:>>>> Tuvell v. BSA, et al>> Counsel,>> Please find attached:>>> 1. Privilege Log Pertaining to Documents Produced with Defendant PADI’s Initial Disclosures.>> Please direct responses or questions to Roger Bullock or Spencer Brown.>> If you have any difficulty opening the attachment please contact me directly. Thank you. Have agreat day.>> Cynthia Stock> Executive Assistant> Strong & Hanni> 3 Triad Center, Suite 500> Salt Lake City, UT 84180> 801.323.2033> Fax: 801.596.1508> [email protected]<mailto:[email protected]>>>>> This email message has been delivered safely and archived online by Mimecast. For more informationplease visit http://www.mimecast.com> <Privilege Log re PADI Initial Discl.pdf>

DGC

Highlight

DGC

Highlight

DGC

Highlight

Mark A. Hruska (Pro Hac Vice) Florida Bar No. 571954 Pennsylvania Bar No. 22212 THE SCHWARTZ LAW GROUP 6751 No. Federal Highway, #200 Boca Raton, FL 33487 Tel: (561) 395-4747 [email protected]

Roger H. Bullock, #485 S. Spencer Brown, #13157 STRONG & HANNI 3 Triad Center, Suite 500 Salt Lake City, UT 84180 Tel: (801) 532 -7080 Fax: (801) 596-1508 [email protected] [email protected]

Attorneys for Professional Association of Dive Instructors ("PAD!")

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

CHRISTOPHER JOSEPH TUVELL, SHERRY LYNN TUVELL, individually and as the heirs of David Christopher Tuvell, and THE ESTATE OF DAVID CHRISTOPHER TUVELL,

Plaintiffs, vs.

BOY SCOUTS OF AMERICA, PROFESSIONAL ASSOCIATION OF DIVE INSTRUCTORS ("PADI"), BLUE WATER SCUBA, LOWELL HUBER, CORBETT DOUGLAS, BEAR LAKE BOY SCOUT AQUATIC CAMP,

Defendants.

PRIVILEGE LOG PERTAINING TO DOCUMENTS PRODUCED WITH

DEFENDANT P ADI'S INITIAL DISCLOSURES

Case No.: 1 :12-cv-00128

Judge Dee Benson

vs.

KIM M. LaMOTTE-MALONE, M.D., LaMOTTE PEDIATRICS, LLP, doing business as Anthem Hills Pediatrics, KIM LaMOTTE-MALON£, M.D. PROF CORP., M.P., Minor; MICHAEL PERRY, and BRIAN K. SHRA WDER,

Third-Party Defendants.

Pursuant to Rule 26(b)(5) ofthe Federal Rules of Civil Procedure, PADI submits the

following Privilege Log pertaining to documents identified in its Initial Disclosures to which

PADI claims a privilege.

BATES DESCRIPTION PRIVILEGE NUMBER ASSERTED

PADI 0106-0107 PADI Quality Management Summary for Corbett Douglas Work Product regarding Douglas's history and summary of David Tuvell Incident

PADI 0108-0109 Statement of Corbett Douglas regarding David Tuvell Work Product Incident prepared as part ofP ADI's Incident Report

PADI 0110-0111 Statement of Lowell Huber regarding David Tuvell Work Product Incident prepared as part ofPADI's Incident Report

PADI 0259-0266 PAD! Incident Report for David Tuvell Incident including Work Product statements by Lowell Huber and Corbett Douglas

DATED this 7S~.I.clay of {)C.[!ff,pC '2013.

2

Mark A. Hruska THE SCHWARTZ LAW GROUP

Roger H. Bullock S. Spencer Brown

STRONG&~

~ROWN Attorneys for Professional Association of Dive Instructors ("PAD/")

DGC

Highlight

DGC

Highlight

DGC

Highlight

DGC

Highlight

1~ I hereby certify that on this .1i_ day of De 10/re r , 2013 a true and correct copy of the

foregoing PRIVILEGE LOG PERTAINING TO DOCUMENTS PRODUCED WITH

DEFENDANT PADI'S INITIAL DISCLOSURESwas served by the method indicated below,

to the following:

Robert G. Gilchrist EISENBERG GILCHRIST & CUTI' 900 Parkside Tower 215 South State Street Salt Lake City, Utah 84111 Attorneys/or Plaintiffs

Alton J. Hall, Jr. DELISE & HALL 516 W. 21st Avenue Covington, LA 70433 Attorneys for Plaintiffs

Gainer M. Waldbillig W/LAW 17 5 South Main Street, Suite 1600 Salt Lake City, Utah 84111 Attorneys for Blue Water Scuba, Lowell Huber, and Corbett Douglas

David G. Concannon Matthew T. Charles Jonathan Z. Cohen LAW OFFICES OF DAVID G. CONCANNON 200 Eagle Road, Suite 166 Wayne, Pennsylvania 19087 Attorneys for Blue Water Scuba, Lowell Huber, and Corbett Douglas

Michael F. Skolnick Samuel A. Goble KIPP AND CHRISTIAN, P.C. 10 Exchange Place, Fourth Floor Salt Lake City, Utah 84111 Attorneys for Boy Scouts of America and Great Salt Lake Council, Inc., Boy Scouts of America

Jaryl Rencher Michael Collins

(X) U.S. Mail, Postage Prepaid ( ) Hand Delivered ( ) Overnight Mail ( ) Facsimile ( ) Email




(X) U. S. Mail, Postage Prepaid ( ) Hand Delivered ( ) Overnight Mail ( ) Facsimile ( ) Email

(X) U.S. Mail, Postage Prepaid ( ) Hand Delivered

STUCKI, STEELE & RENCHER 215 South State Street, Suite 600 Salt Lake City, Utah 84111 Attorneys for Kim M LaMotte-Maione, MD., LaMotte Pediatrics, LLP, dba Anthem Hills Pediatrics, Kim LaMotte-Maione MD. Pro/Corp., and Brian K. Shrawder

Patricia Egan Daehnke Amanda E. Rosenthal BONNE, BRIDGES, MUELLER, 0' KEEFE & NICHOLS 3441 S. Eastern Avenue, Suite 402 Las Vegas, NV 89169 Attorneys for Kim M LaMotte-Maione, MD., LaMotte Pediatrics, LLP, dba Anthem Hills Pediatrics, Kim LaMotte-Maione MD. Pro/Corp., and Brian K. Shrawder

Eric K. Davenport Garrett A. Walker SMITH & GLAUSER, P.C. 1218 East 7800 South, Suite 300 Sandy, Utah 84094 Attorneys for Third- Party Defendant MP.

8811.0003

4

( ) Overnight Mail ( ) Facsimile ( ) Email



PADI Says Member Incident Reports Are Not Privileged

Documents

Transcript of PADI Says Member Incident Reports Are Not Privileged