Face it.  When the judge uses the words “kitchen sink” to describe your position, you’re in trouble.

Lawyers for Chicago’s Mercy Hospital found that out Monday when a federal court ruled on their claim of peer review privilege for hundreds of documents sought by the plaintiff in a malpractice case.  The court blasted the hospital and its lawyers for their “broad, ‘kitchen sink’ privilege designations” and for their repetitious “mantra-like” and “conclusory” claim of peer review privilege.

So without disguising its annoyance at being forced to review hundreds of documents one at a time, the court upheld the privilege for a few of them but ordered the hospital to turn over the lion’s share to the plaintiff.

The court’s description of what the hospital and its lawyers did wrong provides valuable guidance on what to do right in order to preserve and assert the peer review privilege.  First, don’t overreach.  The hospital has to be reasonable in assigning the privilege to documents when they’re created.  It can’t call everything privileged.  That opens it up to the kitchen-sink charge.

Second, when a privileged document is created, the hospital needs to indicate on the face of the document that it’s privileged, preferably with a brief statement as to why—maybe a stamp saying “Peer Review Committee Minutes.”

Third, in discovery the hospital’s lawyers can’t overreach, either.  In this case, for example, the lawyers claimed that Continuing Medical Education session flyers were peer review material.  That makes the judge think kitchen-sink.  It also makes him angry.

Fourth, when the hospital’s lawyers prepare a privilege log for the court to use in evaluating the claim, they need to respect the court’s time and its intelligence.  They need to state the basis of the claim for each document in succinct, legitimate, and believable terms.  If they don’t—if, for example, they call a CME flyer a peer review document—they jeopardize the privilege for the genuine peer review documents.

The decision is Cornejo v. Mercy Hospital, 2014 BL 255413, No. 12 C 1675 (N.D. Ill.)