Monday, March 06, 2006


Burns v. The Honorable Ann Boyden, 2006 UT 14

This opinion is classic Durrant: clear and logical. I think he's arguably the best writer on the court. The first paragraph in the opinion pretty much sums the whole thing up:

This case presents two distinct issues: (1) whether Dr. Brian D. Burns may claim the physician-patient privilege as a shield against a state investigation into his allegedly fraudulent billing practices, and (2) whether a secrecy order obtained by the State respecting this investigation is constitutional. As to the first issue, rule 506 of the Utah Rules of Evidence provides a physician presumptive authority to claim the physician-patient privilege “on behalf of the patient.” We hold that the State has rebutted this presumption by demonstrating that Burns is asserting the privilege not on behalf of his patients but for his own benefit. As to the second issue, Utah law allows the State, with approval and oversight from a district court, to conduct a criminal investigation in secret. Despite the secrecy order obtained by the State, Burns has adequate information about the investigation, and there are adequate procedural safeguards in place to effectively protect Burns’s constitutional rights.
A couple of important points from the opinion. First, the physician-patient privilege issue was decided exclusively under rule 506, Utah Rules of Evidence. The court held that the rules of evidence, not Utah Code Ann. § 78-24-8(4), control physician-patient privilege issues in court. It treated section 78-24-8(4) as an “encroachment” on its rulemaking authority. The court also refused to recognize an insurance fraud exception to rule 506.

Second, the court clarified the analysis for when a physician may claim the privilege on behalf of a patient:

The rule states that the treating physician is presumed “to have authority . . . to claim the privilege.” Yet presuming authority would appear to presume a legal effect rather than a fact. In actuality, since a physician must prove all the basic facts to trigger the presumption that a patient would need to prove to claim the privilege, the only remaining fact for a physician to prove is that he is, in fact, claiming the privilege “on behalf of the patient” and not for his own benefit. In sum, the “presumed fact” under rule 506(c) is that the physician is claiming the privilege on behalf of the patient. Thus, to defeat a physician’s ability to claim a privilege once the physician has proven all the basic facts, a party needs to prove “that the nonexistence of [a physician’s intent to claim the privilege for the patient’s benefit] is more probable than its existence.” In other words, to rebut the physician’s authority, the challenging party must show that it is more likely than not that a physician is claiming the privilege in his own self-interest.
The court relied heavily on Utah Evidence Law by Kimball and Boyce for the above analysis. It concluded that Burns could not claim the privilege because the record demonstrated that he was not claiming the privilege on behalf of his patients, but on his own behalf. The court found particularly compelling Burns’ attack on a court imposed secrecy order under the Subpoena Powers for Aid of Criminal Investigation and Grant of Immunity Act. That order was about the only thing besides rule 506 guarding his patients’ privacy.


Recollection recorded 14 years after event is not “fresh” under rule 803(5)

TWN, Inc. v. Michel, 2006 UT App 70.

This case is the epilogue to TWN, Inc. v. Michael, 2003 UT App 70, 66 P.3d 1031. The issue on appeal this time is the admissibility of a witness affidavit under rule 803(5), the recorded recollection exception to the hearsay rule. Rule 803(5) states:

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
This is the first chance a Utah appellate court has had to consider rule 803(5). So the court properly turned to the feds for guidance. Most circuits have adopted a liberal interpretation of the word fresh that does not require contemporaneity and that avoids imposing a maximum allowable time between the event and the recollection. Instead, courts look at each case individually and treat the passage of time as a factor in the overall analysis. They also look at the quality of the recorded recollection and any correlation between the recording of the recollection and the commencement of the litigation.

Using what is in effect a totality of the circumstances analysis, federal courts have allowed recorded recollections into evidence that were made up to three years after the event.

The affidavit TWN sought to admit was executed in 1999 and concerned a real estate transaction in 1985. That 14 year span, the court of appeals concluded, was too long for the recollection to be fresh. The court also determined that the witnesses subjective belief that his recollection was fresh was insufficient to overcome “the more reasonable inference” that the passage of 14 years clouds a person’s memory and undermines the trustworthiness of the evidence.


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