Meghan Mcsorley, V. The Everett Clinic

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 MEGHAN A. McSORLEY,
                                                  No. 86325-8-I
              Respondent,
                                                  DIVISION ONE
              v.
                                                  PUBLISHED OPINION
 THE EVERETT CLINIC, a Washington
 professional limited liability company;
 NARIMAN HESHMATI, an individual;
 and ALBERT FISK, an individual,

              Petitioners,

 OPTUM CARE SERVICES
 COMPANY, a Minnesota corporation,
 f/d/b/a DaVITA MEDICAL GROUP;
 OPTUM CARE, INC., a Minnesota
 corporation, f/d/b/a DaVITA MEDICAL
 GROUP,

              Defendants.


      BIRK, J. — The Everett Clinic (TEC) seeks discretionary review of a

discovery order compelling it to disclose privileged material subject to the peer

review and quality improvement privileges.      Dr. Meghan McSorley brought a

Washington Law Against Discrimination (WLAD), ch. 49.60 RCW, disparate

treatment claim against TEC, her former employer. During discovery, TEC was

granted a protective order as to its privileged peer review and quality improvement

files, which it later partially waived, disclosing only Dr. McSorley’s file.    Dr.

McSorley sought an order compelling disclosure of other privileged peer review
No. 86325-8-I/2


and quality improvement files, specifically for alleged WLAD comparator Dr.

Nariman Heshmati. Because Dr. Heshmati’s peer review and quality improvement

file was part of the same subject matter as Dr. McSorley’s, fairness required the

disclosure of Dr. Heshmati’s file. We affirm.

                                         I

      In June 2021, Dr. McSorley filed a complaint against, among others, TEC

and its partner and obstetrics and gynecology (OB/GYN) specialist, Dr. Heshmati,

alleging violations of WLAD and wrongful termination in violation of public policy.

Dr. McSorley, an employee of TEC from 2016 to 2019, claimed Dr. Heshmati was

regularly disrespectful to her, undermined her, and investigated and criticized her

behind her back—behavior he did not direct towards male doctors. Dr. McSorley

raised concerns about Dr. Heshmati’s practice and “systemic quality control

deficiencies that had led to bad patient outcomes.” Dr. McSorley alleged these

concerns were not properly investigated by TEC.

      Dr. McSorley claimed Dr. Heshmati used the peer review and quality

assurance systems at TEC to lodge meritless complaints against her.             Dr.

McSorley alleges she submitted a letter to the head of the Quality Review

Committee for TEC, where she raised concerns over Dr. Heshmati’s management

of patient care. In response, Dr. McSorley claims she had an off the record

meeting with Dr. Albert Fisk, the Chief Medical Officer at TEC, in which she was

asked to voluntarily relinquish her hospital privileges by end of day.        After

protesting the request by e-mail, which she refers to as “a formal complaint of

gender discrimination and retaliation, including whistleblower retaliation,” Dr.


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McSorley alleges that “[l]ess than one hour later, Dr. Fisk removed [her] ability to

practice medicine at the Clinic entirely.”

       Dr. McSorley asserts that after she passed a “demeaning” and “remedial”

assessment that TEC required, TEC delayed reinstating her, and when Dr. Fisk

finally did begin the reinstatement process, he refused to apologize, compensate

her for lost performance bonuses, or assist her in reestablishing her practice. Due

to her continuing fear of gender-based discrimination, Dr. McSorley chose not to

practice medicine at TEC again.

       During discovery, Dr. McSorley sought documents related to TEC’s

response to complaints raised against her and other similarly situated male

OB/GYN comparators. In February 2022, Dr. McSorley moved to compel TEC to

produce all documents identified in its privilege logs, not generated, created, and

maintained exclusively by the peer review committee.           In July 2022, after

conducting an in camera review, the superior court ordered the petitioners to

produce numerous documents identified in the privilege log, while not ordering

disclosure of others.     The order conformed the privilege narrowly to those

documents created exclusively for review committees.1

       Then in 2023, TEC waived peer review and quality improvement privileges

for “any and all files, facts, and testimony regarding” Dr. McSorley’s peer review,

and produced those documents. TEC provided little explanation for its reversal in

strategy, stating, “In order to provide context to the documents that [the superior


       1 See Lowy v. Peacehealth, 174 Wn.2d       769, 778, 280 P.3d 1078 (2012)
(strictly construing peer review and quality improvement privileges).


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court] ordered to be produced, on June 16, 2023, TEC produced the rest of the

documents related to [Dr. McSorley’s] peer review file.”2 Dr. McSorley moved to

compel production of Dr. Heshmati’s peer review file, asserting that TEC had

waived privilege by partially and selectively disclosing Dr. McSorley’s peer review

file and that in fairness, TEC should be ordered to produce at least Dr. Heshmati’s

peer review file as well, arguing he was a proper comparator for purposes of her

discrimination claim.    Dr. McSorley also suggested she would seek similar

documents for other comparators.

       The superior court granted Dr. McSorley’s motion to compel. The superior

court ruled that the test for implied waiver had been satisfied, that, for purposes of

discovery, Dr. Heshmati was a proper comparator, and that in fairness his peer

review file had to be produced.        The superior court certified its order for

discretionary review under RAP 2.3(b)(4). A commissioner of this court granted

discretionary review under that rule. TEC maintains that its waiver of the peer

review and quality improvement privileges is limited to Dr. McSorley’s peer review

file it disclosed, and that the superior court erred by compelling further disclosure.

                                          II

       The superior court ruled that TEC made an intentional3 and selective

disclosure of privileged information and it was appropriate to compel production of

       2 One document disclosed was a case review summary in which a reviewer

assessing Dr. McSorley denoted a concern with the standard of care, issues with
quality, and the opinion that Dr. McSorley’s ministrations “[p]robably did contribute
to harm” in the reviewed case. Other documents disclosed included e-mails in
which Dr. McSorley’s care for two patients was critiqued.
        3 We are concerned in this case with intentional disclosure of privileged

information. We analyzed inadvertent disclosure in Sitterson v. Evergreen Sch.


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other privileged documents necessary to fairly adjudicate Dr. McSorley’s disparate

treatment claims. We agree. The general rule, codified in ER 502(a) for the

attorney-client privilege and the work product doctrine, is that when a party makes

a partial disclosure of privileged documents, it waives privilege also for documents

relating to the same subject matter and that ought in fairness to be considered

together. Whether a waiver of privilege was made is reviewed de novo.4 Magney

v. Truc Pham, 195 Wn.2d 795, 801, 466 P.3d 1077 (2020).

                                         A

       The Washington Supreme Court considered the effect of a partial disclosure

of privileged material in McUne v. Fuqua, where a litigant claiming personal injury

from an automobile collision presented at trial his own testimony and that of three

doctors about his physical ailments and disabilities. 42 Wn.2d 65, 68, 74-76, 253

P.2d 632 (1953). The opposing party sought to introduce the testimony of other

doctors who would testify that the plaintiff had similar complaints predating the

collision. Id. at 73. The court held the plaintiff’s testimony at trial was a waiver,

but limited to testimony regarding “the same ailments and disabilities.” Id. at 76.

McUne asks whether there is “such relation between the old and new medical



Dist. No. 114, 147 Wn. App. 576, 584-88, 196 P.3d 735 (2008), and adopted a
five-part test to assess waiver on an inadvertent basis.
        4 Case law leaves open the possibility that a trial court’s determination of

the extent to which fairness requires further disclosure is a discretionary decision,
reviewed for abuse of discretion. Magney, 195 Wn.2d at 799 (“[W]e conclude that
the discretion of whether a privilege has been impliedly waived belongs to the trial
court judge, who has access to the entirety of the record of the case and who can
determine whether any disclosures thus far impliedly waived the privilege.”).
Because we affirm based on a de novo review, we do not consider whether the
abuse of discretion standard governs review of the extent of a given waiver.


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testimony that appellant’s production of the former constituted a waiver of the

privilege as to the latter.”5 Id. at 77 (emphasis added).

       McUne applied the rule of subject matter waiver. Under this rule,

       When a party reveals part of a privileged communication in order to
       gain an advantage in litigation, it waives the privilege as to all other
       communications relating to the same subject matter because “the
       privilege of secret consultation is intended only as an incidental
       means of defense and not as an independent means of attack, and
       to use it in the latter character is to abandon it in the former.”

In re Sealed Case, 676 F.2d 793, 818 (D.C. Cir. 1982) (quoting 8 J. WIGMORE,

EVIDENCE IN TRIALS AT C OMMON LAW § 2327, at 638 (J. McNaughton rev. 1961)).

Selective disclosure of privileged material risks conveying an incomplete or even

misleading picture to the trier of fact, because the privilege holder might unfairly

disclose parts of privileged material that seem to support its position, while

withholding context or other material undercutting its position.        2 EDWARD J.

IMWINKELREID, THE NEW WIGMORE: A TREATISE ON EVIDENCE § 6.12.7, at 1114-15

(2d ed. 2010).

       5  Like McUne, our case involves waiver through partial disclosure. A
different type of waiver occurs when a party asserts a contention in litigation that
puts privileged information at issue. See Pappas v. Holloway, 114 Wn.2d 198,
203, 207, 787 P.2d 30 (1990) (counterclaiming for legal malpractice); Steel v.
Phila. Indem. Ins. Co., 195 Wn. App. 811, 816, 832, 381 P.3d 111 (2016) (seeking
a reasonableness determination of a covenant judgment settlement); cf. Chevron
Corp v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992) (raising an affirmative
defense) (“Where a party raises a claim which in fairness requires disclosure of
the protected communication, the privilege may be implicitly waived.”). In those
situations, Washington applies its version of “the Hearn test,” Steel, 195 Wn. App.
at 832, a framework derived from Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975).
At the parties’ urging, the superior court used the Hearn framework to analyze and
determine the extent to which fairness required further disclosure by TEC.
Although the two kinds of waiver are analytically distinct, the superior court’s
thorough order covered the points relevant to the analysis of TEC’s waiver through
partial disclosure.


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No. 86325-8-I/7


       The modern trend has been to limit subject matter waiver to additional

material on the same subject that fairness requires to be disclosed “to avoid

prejudice to the adversary party and ‘distortion of the judicial process’ that may

result from selective disclosure.” In re Actos Antitrust Litig., 628 F. Supp. 3d 524,

533 (S.D.N.Y. 2022) (quoting In re von Bulow, 828 F.2d 94, 101 (2d Cir. 1987)). A

version of subject matter waiver has been adopted by rule for the attorney-client

privilege and the work product doctrine in Washington proceedings under ER 502,

patterned after Federal Rules of Evidence 502. Under this rule, subject matter

waiver going beyond the information actually disclosed is “reserved for those

unusual situations in which fairness requires a further disclosure of related,

protected information, in order to prevent a selective and misleading presentation

of evidence to the disadvantage of the adversary.”        FED. R. EVID. 502 advisory

committee note.

       Finally, in determining whether a party has waived privilege, courts may

consider the purpose the privilege is meant to serve. Carson v. Fine, 123 Wn.2d

206, 214, 867 P.2d 610 (1994) (analyzing the scope of waiver: “Waiver occurs

because the purpose of the privilege no longer exists.”); Pappas v. Holloway, 114

Wn.2d 198, 208, 787 P.2d 30 (1990) (characterizing waiver analysis in part as

limiting the attorney-client privilege to “the purpose for which it exists.”); cf. Steel

v. Phila. Indem. Ins. Co., 195 Wn. App. 811, 825, 381 P.3d 111 (2016) (requiring

case-by-case justification for application of implied waiver test). When a party’s

use of a privilege fits with the intended purpose of a privilege, a finding of waiver

is less likely. In contrast, when a party’s use of a privilege is not consistent with


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No. 86325-8-I/8


the purpose the privilege serves, then both a finding of waiver and a finding of a

greater extent of waiver are more likely. In such a case, the party’s actions indicate

that it is not concerned with protecting the interests that were meant to be protected

by the privilege. Cf. Sealed Case, 676 F.2d at 818 (courts need not allow a claim

of privilege “when the party claiming the privilege seeks to use it in a way that is

not consistent with the purpose of the privilege.”).

                                          B

       TEC acknowledges that subject matter waiver is the appropriate analysis,

but argues that the “subject matter” of its disclosure is limited to Dr. McSorley’s

peer review file, which it has already disclosed. It argues that the peer review files

of any other physician would be a different subject matter. We disagree.

       The superior court appropriately defined the subject matter of TEC’s

disclosure not in an arbitrary, abstract sense, but in the context of the issues being

litigated. Decisions analyzing subject matter waiver are illustrative.      In Actos,

where the privilege holder had described two patents as ones that “ ‘claim’ ” a

brand name drug for purpose of competition from generic drugs, it asserted a

defense requiring it to show that it, in good faith, relied on advice that the

descriptions were required by regulation.      628 F. Supp. 3d at 531, 534. The

privilege holder waived privilege as to documents relating to the applicability of and

its compliance with certain regulations. Id. at 536. The court found the proposed

scope of the waiver might result in the privilege holder selectively withholding

documents rebutting its good faith conclusion that its descriptions were required

by the regulations. Id. Thus a subject matter broader than the disclosure itself


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No. 86325-8-I/9


was implicated. Id. And where a party maintained its tax position was reasonable

“because it was based on advice of counsel,” the party put at issue “the tax advice

it received.” Chevron Corp v. Pennzoil Co., 974 F.2d 1156, 1162-63 (9th Cir.

1992). Withholding material informing “the extent” of the party’s knowledge would

“deny [the plaintiff] access to the very information that [it] must refute in order to

demonstrate” the defendant’s misconduct.              Id.    In contrast, in Weil v.

Investment/Indicators, Research & Management, Inc., a privilege waiver made

early in litigation, that was limited in scope and not prejudicial to the opposing party,

did not compel further disclosure. 647 F.2d 18, 25 (9th Cir. 1981).

       TEC’s position is that it can use Dr. McSorley’s peer review file to support

its “good faith, reasonable basis” for conducting a peer review of Dr. McSorley. If

a plaintiff makes a prima facie showing of discrimination, then the burden shifts to

the defendant to “ ‘articulate a legitimate, nondiscriminatory reason for the adverse

employment action,’ ” and if the defendant meets that burden the plaintiff must

produce evidence showing the plaintiff’s reasons were pretextual.          Mikkelsen v.

Pub. Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516, 527, 404 P.3d 464 (2017)

(quoting Scrivener v. Clark Coll., 181 Wn.2d 439, 446, 334 P.3d 541 (2014)).

TEC’s interest in using Dr. McSorley’s peer review file is in articulating a

“legitimate, nondiscriminatory reason” for its actions towards her. Id. If TEC was

given similar reasons to take action against male comparators but took none, it

would support the inference that a substantial factor in its actions towards Dr.

McSorley was her gender. Scrivener, 181 Wn.2d at 446-47 (“An employee may

satisfy the pretext prong by offering sufficient evidence . . . (1) that the defendant’s


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reason is pretextual or (2) that although the employer’s stated reason is legitimate,

discrimination nevertheless was a substantial factor motivating the employer.”).

The superior court appropriately found that the relevance of the material to the

action defined the subject matter for purposes of waiver: the disclosed documents

allowed petitioners to “attack the quality” of Dr. McSorley’s medical care “and

proffer an alternative explanation for the adverse actions against her as a defense.”

(Emphasis added.) In the context of the litigation, the subject matter of TEC’s

disclosure of privileged material is appropriately defined as the justification for the

actions taken against Dr. McSorley.

       The superior court also appropriately determined that compelling a similar

disclosure for male comparators was the fair requirement—and the fair limit—for

additional disclosure. In some instances, the fairness standard might mean little

or nothing additional needs to be disclosed after a waiver. See e.g., Weil, 647

F.2d at 25.        Here, under longstanding principles governing employment

discrimination cases, courts assess an employer’s justification not just from what

the employer claims, but from circumstantial evidence of its treatment of

comparators. Mikkelsen, 189 Wn.2d at 526 (direct evidence of discrimination is

rare, which is why “plaintiffs may rely on circumstantial, indirect, and inferential

evidence to establish discriminatory action.”).    As the superior court explained,

TEC’s disclosure gave it an advantage “by allowing negative comments about Dr.

McSorley to be discovered and discussed, without allowing analogous negative

comments about Dr. Heshmati to be discovered and discussed.” In a disparate




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treatment claim, disclosure of the former without disclosure of the latter would

amount to a selective and potentially misleading portrayal of the facts.

       Thus far, the superior court has ruled only that Dr. Heshmati is a proper

comparator for whom documents equivalent to those disclosed about Dr. McSorley

must be produced. Contrary to TEC’s fear, this does not give Dr. McSorley the

unilateral ability to define the scope of discovery.   The superior court’s ruling

logically limits further disclosure to equivalent peer review documents as to other

doctors whom the court views as proper comparators. TEC does not precisely

challenge the superior court’s view that Dr. Heshmati is a proper comparator for

purposes of discovery. And the record provides ample justification for the superior

court’s well-reasoned ruling in light of its broad discretion to determine the scope

of discovery. Nakata v. Blue Bird, Inc., 146 Wn. App. 267, 277, 191 P.3d 900

(2008) (“A trial court has broad discretion under CR 26 to manage the discovery

process.”).   With Dr. McSorley having so far identified one, or perhaps two,

comparators after years of discovery, we see little risk that the superior court’s

ruling threatens an unfairly expansive definition of comparators for purposes of

waiver. The superior court imposed a fair, reasonable, and clear limit on the extent

of the privilege waiver.

       Finally, both the conclusion of waiver here and its extent are appropriate in

light of the purposes of the peer review and quality improvement privileges. See

Carson, 123 Wn.2d at 214. “The general purpose of the peer review statute is to

encourage health care providers to candidly review the work and behavior of their

colleagues to improve health care.” Lowy v. Peacehealth, 174 Wn.2d 769, 774,


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280 P.3d 1078 (2012). TEC’s disclosure to serve its strategic interests in an

employment discrimination lawsuit with a former employee only undermines these

purposes. For the purpose of a privilege to be served, “the participants in the

confidential conversation ‘must be able to predict with some degree of certainty

whether particular discussions will be protected. An uncertain privilege, or one

which purports to be certain but results in widely varying applications by the courts,

is little better than no privilege at all.’ ” Jaffee v. Redmond, 518 U.S 1, 18, 116 S.

Ct. 1923, 135 L. Ed .2d 337 (1996) (quoting Upjohn Co. v. United States, 449 U.S.

383, 393, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)). TEC’s disclosure has the same

discouraging effect, as it signals to its provider employees the possibility that it may

use their disclosures against their interests, should doing so be perceived to serve

TEC’s interests. When it disclosed Dr. McSorley’s peer review file to aid its private

interests in an employment discrimination lawsuit, TEC put aside the public’s

interest in encouraging providers—such as Dr. McSorley—to candidly report. The

court is not obligated to protect a privilege more assiduously than its holder does.

       Affirmed.




WE CONCUR:




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