Judge Issues Crucial Decision on FCLB Discovery Dispute in Vanterpool's Racial Discrimination Lawsuit

In a recent development in the ongoing discrimination lawsuit filed by Keita Vanterpool DC against the Federation of Chiropractic Licensing Boards (FCLB), Karlos Boghosian and Carol Winkler, a crucial discovery dispute has taken center stage. The dispute revolved around the disclosure of notes taken by FCLB General Counsel Dale Atkinson during closed door executive sessions held in March 2022 when the FCLB's Board of Directors voted to suspend Dr. Vanterpool. The defendants argued that these notes were protected by the attorney-client privilege and the work product doctrine, while Dr. Vanterpool sought access to them to support her claims.

According to other documents in the case despite the seriousness of the decision to suspend Vanterpool, oddly - no minutes or other notes were taken of this crucial meeting by anyone at the FCLB. This makes the notes taken by Atkinson crucial in understanding what went on in the room that led to Vanterpool's suspension. The aggressive efforts to keep Atkinson's notes a secret suggest they may contain a smoking gun.

On September 28, 2023, a discovery hearing was held to address this issue. The arguments presented by both parties centered on whether the notes were privileged and whether the timing of the request for production of these notes was appropriate.

CLICK HERE to see previous reporting on this hearing

Dr. Vanterpool contended that the defendants' privilege log was untimely and that the notes were essentially factual records of the executive session discussions. She argued that the attorney-client privilege should not apply since the notes did not primarily involve legal advice and that the work product doctrine did not cover them because they were not prepared in anticipation of litigation. Furthermore, Dr. Vanterpool emphasized the hardship she would face without access to the notes, as there was no other record of what transpired during the crucial Board deliberations.

The defendants countered that the privilege log had been provided, but they claimed that Dr. Vanterpool's request for the notes came too late, falling outside the established deadline for requests for production of documents. They maintained that the notes were protected by the attorney-client privilege and the work product doctrine. The defendants asserted that the purpose of the notes was to assist with legal advice and preparations related to the issue at hand.

After carefully considering the arguments, the Court chose not to decide the matter based solely on the timing of the request or the alleged late production of the privilege log. Instead, in the interest of justice, the Court opted to review the disputed notes independently and determine whether they were indeed privileged or protected from production.

Upon review, the Court found that most of the notes did not qualify for protection under either the attorney-client privilege or the work product doctrine. The notes primarily appeared to be factual records of the board meetings, listing who said what and reflecting the business of the Board of Directors regarding the discipline of a board member. The Court noted that the burden of establishing that the attorney-client privilege applies rests with the party asserting it, and in this case, the FCLB had not met that burden.

CLICK HERE for a copy of the Judge's Decision

The Court did acknowledge that there were limited portions of a few pages that might contain legal advice or discussions of legal import. These specific portions were likely covered by the attorney-client privilege and should be redacted and withheld from production.

As a result of this decision, the majority of the notes, with the exception of the identified portions, were to be produced to Dr. Keita Vanterpool within two business days from the date of the order October 18, 2023.

This ruling represents a significant development in the ongoing discrimination lawsuit.

Motion for Summary Judgement

In other developments in the case the Defendants FCLB, Boghosian and Winkler filed a motion for Summary Judgment on September 25, 2023. The purpose of filing a motion for summary judgment in a legal case is to seek a decision from the court in favor of one party (usually the movant) without the need for a full trial. Summary judgment is a legal procedure used to resolve cases when there is no genuine dispute of material facts between the parties, and the law can be applied to the undisputed facts to determine the outcome.

It's important to note that a motion for summary judgment can only be granted if there are no genuine issues of material fact in dispute. If there are any factual disputes that could affect the outcome of the case, the court is unlikely to grant summary judgment, and the case will proceed to trial for a full determination of the issues.

Plaintiff Vanterpool has requested a 14 day extension of time to submit a response to the Motion for Summary Judgment.

Vanterpool was previously Vice President of the FCLB and is suing the FCLB, its Past President Carol J. Winkler, D.C. and another Past President Karlos Boghosian, D.C. alleging racial discrimination after they suspended her from her position at the FCLB.

The FCLB has denied the accusations of a civil conspiracy to violate Vanterpool's civil rights which she claims were perpetuated by Defendants Winkler and Boghosian.

Beyond the accusations of discrimination, the lawsuit lays out the highly questionable legal and financial relationships that exist between the FCLB, the National Board of Chiropractic Examiners (NBCE) and the state chiropractic regulatory boards which the FCLB alleges are "members" of the FCLB.

CLICK HERE for more background on the story