Attorney John Durso, Ungaretti & Harris LLP

Are emails between nursing staff and supervisors commenting on a resident’s status — such as cautions about keeping an eye on a resident who ultimately falls into a bad condition (pressure ulcer, etc.) — considered protected “work product” that can’t be used in legal-case research? 

“Work product” is usually very narrowly defined. It is a privilege typically held by an attorney for the attorney’s work product related to litigation.

In Illinois, “work product” is
“[m]aterial prepared by or for a party in preparation for trial,” and “is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney,” per Ill. S. Ct. R. 201(b)(2). Under the facts presented, it does not appear that either a provider or its staff would be able to invoke a “work product” privilege for comments or emails made between staff and supervisors regarding a resident’s status in order to protect them from disclosure in a subsequent lawsuit. 

Furthermore, even though the comments and emails may not be part of the patient’s official record, electronic discovery is now required in most cases, which obligates parties to preserve and search for electronically stored relevant information. Moreover, if one of the individuals privy to the communication is deposed, he or she will have to disclose that information at deposition if it is responsive to a question, whether it is documented or not. 

The best course of action for purposes of litigation is to presume that both written and oral communications (aside from those with counsel) about particular patient care will be discoverable. This premise should be communicated to and understood by staff.