When a training agency decides it is more important than its instructor members or, worse, the training agency helps the plaintiff sue its own membersPosted: December 17, 2014
This is rare and should not be viewed as common in the industry. At the same time, This is an outrage and this agency needs new directors, new officers and a new board…..NOW!
Most importantly, the training agency lied to its members, continues to lie to its members and requires them to provide information to the agency that they claim is confidential and protected that is NOT.
Privilege is protection afforded by the US constitution that allows a client to say anything and everything to his or her attorney. Privilege also applies to communications between a patient and a physician and a person and his clergy. No court can compel the attorney, physician or priest to say what they have been told.
This is a sacred right as well as a legal issue. It allows the attorney to prepare the best defense or claim because they know everything. It allows a physician to provide the best care because they know everything. It allows a clergy to provide comfort and the person to receive forgiveness because the clergy knows everything.
There is one major exception to the law that applies to patients who have injuries from gun shots. All medical personnel are required to report this to law enforcement in most states. What is said by the patient is not reported, just the type of injury.
Without privilege, an attorney would not know how to prosecute or defend a case, and that is a right guaranteed by the US Constitution. Without privilege, a person might not see their physician or be defended by their attorney. Without privilege, a sinner might never receive absolution. Privilege is a right that is given by a higher protection than any other law or right by state or federal governments except the freedoms of the constitution.
Privilege is limited in its scope. The information must be provided by the person to the professional: clergy, doctor or lawyer. It must be specific to the professional and be of the nature of the services being offered. The information can only be heard or seen by the professional. It must be done after the incident, if legal in nature, to be privileged. It must be prepared by the client for the attorney, at the attorney’s request. Any waiver or violation of these rules and the privilege is waived, or gone.
No other person, party or organization can hear or see the privileged information. If a person, party or organization does, the privilege is lost. Again, there are exceptions such as employees of the attorney. Even improper handling of the information or possible access to the information can waive privilege. Courts have ruled handing privileged information to a third party, who was able to see the information waives privilege. Having a third party over hear the communication waives privilege. Handing the information to your insurance company or training agency before, as, or any time after an incident waives privilege.
That means you cannot take a document prepared for an insurance company and give it to your attorney and call it privileged. That means you cannot prepare a report for your attorney and give a copy to your insurance company. Once it leaves your hands and goes to anyone else other than the attorney the privilege is lost. Any document prepared prior to the incident also has no privilege unless specifically prepared in anticipation of litigation by your attorney.
How that got screwed up in a scuba diving case.
(Parentheses Surround the name of the document from which the information or the quote is taken. There are a lot of documents in this case, and discovery is ongoing.)
Simplified Version of the Facts
David Tuvell was participating in a Professional Association of Scuba Instructors (PADI) Discover Scuba Diving program at the Bear Lake Aquatic Base, which is owned by the Great Salt Lake Council of the Boy Scouts of America. The dive program was offered by Blue Water Scuba of Logan, Utah and supervised by Corbett Douglas an employee of Blue Water Scuba. Tuvell died during the dive, and his parents sued everyone.
Case Number: No. 1:12CV00128 BCW
US District Court District of Utah, Northern Division
David Christopher Tuvell, Deceased
Christopher Joseph Tuvell, father of the deceased
Sherry Lynn Tuvell, mother of the deceased
The estate of David Christopher Tuvell
Corbett Douglas, Instructor
Boy Scouts of America (BSA)
Blue Water Scuba of Logan, Utah
Bear Lake Aquatic Base
Great Salt Lake Council of the BSA
Professional Association of Diving Instructors (PADI)
PADI Americas, Inc. legal name of PADI
Lowell Huber, owner of Blue Water Scuba of Logan
PADI was sued because it was a PADI course the deceased was taking at the time. PADI is a training agency that provides training, curriculum and other benefits to and for scuba diving instructors. PADI courses train beginning divers as well as advanced diver and dive instructors. PADI is a mixed membership organization in that it has members who are professional, commercial and non-professional divers.
PADI has a form, the first page of which is pasted below, called the “Incident Report Form.” PADI contractually requires any member of PADI to complete the form and send it to PADI for any incident, injury or fatality. The form states it is “…prepared for the purpose of receiving legal advice or for use in anticipated litigation.” This would imply that the information on the form is protected by privilege. PADI tells its members, they must complete the form and that the information is privileged. See The ABCs of Incident Reporting.
PADI’s position on this issue was set forth on a dive bulletin board. (Dive incident reports [Archive] – Scuba Diving Forum – Diving Social Network) The position was stated on the forum by PADI’s director of legal and risk management.
As was speculated on the bulletin board, any incident reports provided to PADI are considered preapred in anticipation of litigation and are therefore, confidential and not released except on the direction of legal counsel or by court order. [spelling error appeared in the original post]
PADI members are required to file incident reports, even if they were just present on the scene. The report states it is privileged; however, it isn’t. Even worse, as these facts show, PADI allegedly provides the reports to the plaintiff as part of any settlement agreement if it is sued. So PADI, in effect, to protect its own butt, lies to its members, and then helps screw its own members in court.
PADI is not a law firm. PADI is an educational organization. There is no privilege with any document or statement made to PADI by anyone for any reason. A confidential document is still provided to all parties in litigation; it just can’t be given to people, not part of the litigation.
How PADI Mislead and then Pissed off the Court
PADI was a defendant in the case. PADI secretly settled with the plaintiffs in the case. This means the parties worked out an agreement where PADI paid the plaintiffs an amount of money and the plaintiffs released PADI, and dismissed their claims against PADI.
Settlement agreements are signed when the parties agree to settle their dispute and quit suing each other. A settlement agreement in litigation has two parts. The first is the agreement between the parties which outlines the amounts and the terms of the agreement. The second is the motion to dismiss based on the settlement agreement that is filed with the court. The court and the other parties never see the settlement agreement itself. Nor does the motion state anything other than the parties have settled.
The court then dismisses the case. In this case, however, several “odd things” occurred. Odd should be replaced by outright fraudulent things.
First, the settlement agreement was signed but no motion to dismiss PADI was made to the court. The original complaint was then amended, with PADI’s consent and allegedly PADI’s help, to remove most of the claims against PADI, even though PADI had settled ALL claims against it.
Once the motion is filed, the Judge reviews the motion to dismiss and grants the motion 99.999% of the time and dismisses the parties from the case, or if one party is staying, the claims between the parties. As a result, one defendant is gone from the case.
PADI signed a settlement agreement with the plaintiffs. The settlement agreement in part stated:
Claimants further understand and agree that this settlement is a compromise of disputed claims and that payment is not to be construed as an admission of liability on the part of any of the Released Parties who are released herein and by whom liability is expressly denied. Even though PADI is settling, it maintains and believes that Claimants are correct that defendants Blue Water Scuba, Lowell Huber, and Corbett Douglas acted improperly and were the primary if not sole cause of this tragic event. PADI desires and intends to remain a party to this action to the extent the court will allow in order to defend the professional reputation of PADI and to defend and represent PADI employees and agents who may be witnesses in this action. [emphasize added] (PADI-Tuvell Settlement Agreement)
I’ve practiced law for thirty plus years, and I have never seen anything like this. I’ve reviewed or written several dozen settlement agreements, and I have never seen or written anything like this.
PADI and other plaintiffs intended to keep their settlement agreement a secret. However, Utah law requires a settlement agreement releasing one defendant to be turned to the other defendants in discovery. When the plaintiffs’ attorney let it slip during a court hearing that a settlement had been reached with PADI, the other defendants demanded that the settlement agreement be provided to everyone in discovery.
Meanwhile, discovery in the case proceeded and, just before it looked like PADI would be dismissed from the case in accordance with its complete settlement of all the plaintiffs’ claims against it, PADI “inadvertently” produced its Members’ incident reports to the plaintiffs without a discovery request and without first notifying the Members that their confidential reports would be produced. After a few days went by, the attorneys for PADI notified the other parties that the documents had been “inadvertently” produced and asked the documents be destroyed because the Blue Water Defendants might want to claim that they were protected by the attorney-client privilege. (Letter from PADI’s Counsel 10-18-2013, Objections to PADI’s Disclosures.) This is absolute BS. See above information on privilege.
Eventually, the court found out what was going on with the secret settlement. (Order granting Mtn for Sanctions 08-27-2014.) The court granted sanctions (monetary damages) to the remaining defendants because PADI had:
· Not immediately notifying the court of the settlement agreement
· It prolonged the litigation by not leaving the case
· Entering into a secret settlement agreement
· Colluding with the plaintiff to file false and misleading claims post-settlement with the court
What unhinges me is this statement.
Plaintiffs and PADI have admitted that PADI insisted that it remain a party to the case, even after PADI and the Plaintiffs had reached a complete settlement of all claims, so PADI could assist the Plaintiffs in proving their claims against the Blue Water Defendants. [emphasis added]
The treachery lies and fraud in this case are unreal.
1. PADI put itself before its own members. This was not a Spock issue were sacrificing one would save the world. This was simply we are going to sacrifice our member for no reason.
2. This is another example of abuse of members by telling them they can protect them by completing forms.
3. PADI lied and deceived its members to collect information about incidents they had no right to have and no right to say was privileged.
Again, this is BS. There is no privilege except between an attorney and the attorney’s client. Anything prepared in anticipation of litigation is prepared for the attorney, no one else. That has been the law since I passed the bar (the test to become an attorney). The attorney can only see the document, no third party, and no non law firm people.
Think you trade association represents you? You better make sure it does.
At the very least let, PADI know. I suggest you join another association or form a new one.
NEVER EVER FILL OUT ANY INCIDENT REPORT FORM FOR ANYONE EXCEPT YOUR ATTORNEY.
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