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Cannon v. Salt Lake Regional Medical Center8/25/2005
that the documents were compiled only for in-house review purposes and hence are privileged." Id. It therefore instructed "the trial court to review all the documents at issue to determine . . . which documents are privileged and not subject to discovery and which are non-privileged and therefore discoverable." Id. at 540.
In a slightly different, but analogous, context, the Utah Supreme Court has likewise addressed a trial court's need for an adequate evidentiary basis upon which to premise a determination concerning the applicability of statutory or common law privileges when they are "asserted in opposition to a request for civil discovery." Madsen v. United Television, Inc., 801 P.2d 912, 915 (Utah 1990). In Madsen, the Court was required to determine whether the "statutory 'official confidence' privilege" or the "common law executive privilege" protected city police department personnel and internal affairs files from discovery. Id. at 914. The parties in Madsen had "stipulated to the submission of the disputed materials to the trial court for an in camera review," but "the court declined to make the review," ordered oral argument on the matter, and ruled on the discoverability of the files thereafter. Id. at 914.
On interlocutory appeal, the Utah Supreme Court remanded the case to the trial court partly because the trial court had ruled on the privilege issue solely based on the arguments presented by each side as to why the privileges did or did not apply. See id. It specifically instructed the trial court to examine, in camera, the disputed materials for which the privilege was claimed. See id. at 917. The Court reasoned that when statutory or common law privileges are "asserted in opposition to a request for discovery," trial courts "must make an independent determination of the extent to which the privilege applies to the materials sought to be discovered," which determination "is the result of the ad hoc balancing of: (a) the discoverant's interests in disclosure of the materials; and (b) the [information holder's] interests in their confidentiality." Id. at 915 (internal quotations and citation omitted). Moreover, the Madsen Court also stated that the party claiming a common law or statutory privilege must provide the trial court a "'"specific designation and description" of each item of material for which the privilege is claimed, "as well as the precise and certain reasons" for preserving the confidentiality of each item.'" Id. at 916 (citations omitted). Consequently, trial courts "'may properly reject a broad, nonparticularized claim of the privilege.'" Id. (citation omitted).
Thus, we draw from Benson that an adequate evidentiary basis must exist for determining whether the documents and the information they contain are "prepared specifically to be submitted for review purposes" or whether documents and information are only of a type that "might or could be used in the review process." Benson, 866 P.2d at 540 (emphasis in original). Likewise, the Court's approach in Madsen supports the proposition that a trial court should not base its determination on the applicability of a privilege to bar discovery solely on the assertions of each side, especially when the party asserting the privilege may not have provided a specific enough "designation and description" of what materials are actually privileged. Madsen, 801 P.2d at 916 (internal quotations and citation omitted). Embracing the lessons of Benson and Madsen, we conclude that, in the instant case, the evidentiary basis for determining whether the care review privilege applies is lacking.
We cannot agree that Ms. Wright's bald assertions qualify as "the evidentiary basis necessary for the trial co
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