D. Mass Rejects Federal Medical Peer Review Privilege

Per In re Administrative Subpoena Blue Cross Blue Shield of Massachusetts, Inc., --- F.Supp.2d ----, 2005 WL 3178175 (D. Mass. Nov. 18, 2005):

The Court must decide whether to recognize a federal medical peer review privilege. No court in the First Circuit or District of Massachusetts has yet done so under federal law, but Massachusetts state law does recognize the privilege.

. . .

When the forum state has recognized a particular privilege, a court may take that into account when deciding whether to recognize that privilege as part of federal law. As a matter of comity, federal courts recognize state privileges "where this can be accomplished at no substantial cost to federal substantive and procedural policy." Although this Court must take the Massachusetts statute into account, it must also heed the Supreme Court's directive in University of Pennsylvania that courts should be "especially reluctant to recognize a privilege in an area where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself."

. . .

The Supreme Court has several times refused to recognize a privilege when doing so would inhibit a federal investigation. Furthermore, the federal interest in this investigation is to enforce laws against health care fraud, an interest other federal courts have found sufficiently strong to refuse to recognize a federal medical peer review privilege. Additionally, this decision comports with the findings of the vast majority of federal courts that have faced this issue in other contexts. As such, the government has shown sufficiently that the costs of withholding the documents would outweigh the benefits of recognizing a medical peer review privilege in the context of a federal criminal investigation. Therefore, the Court will not recognize a federal medical peer review privilege under Fed.Rules Evid.Rule 501, 28 U.S.C.A. (citations omitted).