IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 65

St. Alexius Medical Center, a North Dakota

Corporation, d/b/a CHI St. Alexius Health Bismarck, Petitioner

v.

The Honorable Pam Nesvig, Judge of 

the Court, South Central Judicial District; 

Kevin McKibbage, Daniel Dixon M.D.; and The

Bone and Joint Center, P.C., Respondents

No. 20220005

Petition for Supervisory Writ.

PETITION FOR SUPERVISORY WRIT GRANTED.

Opinion of the Court by Crothers, Justice.

Jessie L. Sogge (argued), Paul E. Darsow (appeared) and Steven R. Schwegman 

(on brief), St. Cloud, MN, for for petitioner.

Thomas J. Conlin (argued), Stacy D. Stennes (appeared) and Taylor B. 

Cunningham (appeared), Minneapolis, MN, for respondent Kevin McKibbage. 

Briana L. Rummel (argued) and Brenda L. Blazer (appeared), Bismarck, ND,

for respondent The Bone and Joint Center, P.C. 

Tracy V. Kolb (appeared), Bismarck, ND, for respondent Daniel Dixon M.D.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MARCH 17, 2022 

STATE OF NORTH DAKOTA
1

St. Alexius Medical Center v. Nesvig, et al.

No. 20220005

Crothers, Justice.

[¶1] St. Alexius Medical Center, d/b/a CHI St. Alexius Health Bismarck, 

requests a supervisory writ preventing enforcement of the district court’s order 

compelling disclosure of privileged information. CHI argues the disclosures 

violate North Dakota’s statutory peer review privilege. We grant the petition

and direct the district court to vacate its November 8, 2021 discovery order.

I

[¶2] Kevin McKibbage sued Daniel Dixon, Bone & Joint Center, and CHI for 

medical malpractice relating to a surgery Dixon performed in 2017. In response 

to McKibbage’s discovery requests, CHI produced some of the requested 

documents and asserted privileges on others. CHI provided a privilege log 

identifying undisclosed documents and the privileges claimed.

[¶3] McKibbage filed a motion to compel arguing CHI did not provide 

sufficient information in the privilege log. CHI responded that it identified all 

the information it could without violating the peer review law, but CHI agreed 

to produce an amended privilege log containing greater descriptions. The 

amended log describes the pertinent documents as “Peer Review Committee 

correspondences,” “Peer Review Committee regular monthly meeting 

minutes,” “Credentials Committee correspondences,” “Credentials Committee 

regular monthly meeting minutes,” “Medical Executive Committee 

correspondences,” “Medical Executive Committee meeting minutes,” and “Peer 

Review Committee documents.”

[¶4] The district court found the law permitted the disclosure of additional 

information and ordered the following to be disclosed: the dates the documents 

were created, the identity of the person who created each document and their 

position at the time of creation, and the identity of the person who received 

each document and their position for peer review. 
2

[¶5] CHI moved to stay proceedings pending its petition for supervisory writ 

to this Court. The district court granted CHI’s motion. 

II

[¶6] CHI requests a supervisory writ from this Court. Our authority to issue 

supervisory writs derives from Article VI, Section 2 of the North Dakota 

Constitution. The power to issue such a writ is discretionary and is used “only 

to rectify errors and prevent injustice in extraordinary cases where no 

adequate alternative remedy exits.” Trinity Med. Ctr., Inc. v. Holum, 544 

N.W.2d 148, 151 (N.D. 1996). 

[¶7] CHI argues a supervisory writ is appropriate and necessary because the 

district court’s order to produce information about privileged documents is not 

immediately appealable, leaving CHI no other recourse but to produce the 

information or be held in contempt for failure to follow a court order. We agree 

and conclude this case is appropriate for exercise of our supervisory 

jurisdiction.

III

[¶8] CHI argues the information compelled by the district court falls under 

North Dakota’s statutory peer review privilege. The Bone & Joint Center and 

Dixon agree. 

[¶9] A party generally may obtain discovery regarding any nonprivileged 

matter relevant to the party’s claim or defense. N.D.R.Civ.P. 26(b)(1)(A). North 

Dakota’s medical peer review records privilege is codified in ch. 23-34, N.D.C.C.

Recognizing that the rule and the statute work in tandem, N.D.R.Civ.P. 26 

provides the procedure for assertion of the privilege. Chapter 23-34, N.D.C.C., 

provides the substance of the privilege.

[¶10] Substantively, “[p]eer review records are privileged and are not subject 

to subpoena or discovery or introduction into evidence in any civil or 

administrative action,” subject to three exceptions. N.D.C.C. § 23-34-03(1). The 

parties do not argue the compelled information falls within the three 

exceptions. “Peer review records” are:
3

“(1) Data, information, reports, documents, findings, 

compilations and summaries, testimony, and any other 

records generated by, acquired by, or given to a peer review 

organization as a part of any professional peer review, 

regardless of when the record was created; and 

(2) Communications relating to a professional peer review, 

whether written or oral, between: 

(a) Peer review organization members; 

(b) Peer review organization members and the peer 

review organization’s staff; or 

(c) Peer review organization members and other 

individuals participating in a professional peer review, 

including the individual who is the subject of the 

professional peer review.”

N.D.C.C. § 23-34-01(4)(a). A “professional peer review” is “all procedures a peer 

review organization uses or functions it performs to monitor, evaluate, and 

take action to review the medical care provided to patients[.]” N.D.C.C. § 23-

34-01(5). 

[¶11] Procedurally, when a party withholds discoverable information because 

it is privileged, the party must expressly make a claim of privilege and 

“describe the nature of the documents, communications, or tangible things not 

produced or disclosed, and do so in a manner that, without revealing 

information itself privileged or protected, will enable other parties to assess 

the claim.” N.D.R.Civ.P. 26(b)(5)(A).

[¶12] In this case, CHI produced an amended log identifying privileged 

documents and describing them as committee correspondences and meeting 

minutes. The district court ordered CHI to disclose the dates the documents 

were created, the identity of the person who created it and their position, and 

the identity of the person who received the document and their position. In 

doing so the district court apparently followed the path taken by North 

Dakota’s federal district court as argued by McKibbage. See Order Regarding 

Discovery Dispute, Kraft v. Essentia Health, No. 3:20-cv-121 (D.N.D. Aug. 2, 

2021), ECF No. 79; Kraft v. Essentia Health, No. 3:20-cv-121, slip copy, 2021 

WL 4143941 (D.N.D. Sept. 7, 2021). 
4

[¶13] In Kraft, the parties disputed the level of detail required in a privilege 

log invoking the peer review privilege on hospital records. 2021 WL 4143941 

at *4. The federal district court ordered the hospital to disclose the dates the 

documents were created, the identities and respective positions of the people 

who created and received the documents, a description of the subject matter of 

the document, document identification numbers, and specific reference to the 

privilege asserted. Id. The federal court’s analysis, particularly that of the 

Magistrate Judge, focused on other federal court rulings on peer review 

privilege claims, and in particular relying on Rule 26, F.R.Civ.P., instead of the 

substance of the underlying state-based peer review privileges. See generally, 

Order Regarding Discovery Dispute, Kraft v. Essentia Health, No. 3:20-cv-121 

(D.N.D. Aug. 2, 2021), ECF No. 79. We take the opposite approach, looking first

to the words of the peer review statute, and then determining how they apply 

to the procedure established by N.D.R.Civ.P. 26. 

A

[¶14] CHI asserts the dates of the documents are irrelevant to the 

determination of the peer review privilege and should be protected. We agree.

[¶15] The privilege protects peer review records regardless of when they were

created. In the words of the statute, a peer review record is privileged

“regardless of when the record was created.” N.D.C.C. § 23-34-01(4)(a)(1). The 

purpose of a privilege log is to describe the nature of privileged information so

other parties can assess the claim of privilege. N.D.R.Civ.P. 26(b)(5)(A). 

Because the peer review privilege applies regardless of record date, the 

disclosure of document dates will not assist other parties in assessing a peer 

review privilege claim. Thus, we reverse the district court order requiring CHI 

to disclose the dates the privileged documents were created.

B

[¶16] CHI claims the identities of the authors and recipients of the documents 

and their respective positions fall under the definition of “peer review records.” 

CHI also argues it provided information on the committees that generated the 

documents, which is sufficient to assess the claim of privilege. We agree.
5

[¶17] “The party claiming the privilege and desiring to exclude the evidence 

has the burden to prove the communications fall within the terms of the statute 

or rule granting the privilege.” State v. Hunter, 2018 ND 173, ¶ 37, 914 N.W.2d 

527. To prove information falls under the peer review privilege, a party must 

demonstrate it was “generated by, acquired by, or given to a peer review 

organization as part of any professional peer review” or is communication 

regarding a professional peer review. N.D.C.C. § 23-34-01(4). A “peer review 

organization” includes a committee of the hospital that conducts professional 

peer review. N.D.C.C. § 23-34-01(3)(b)(2). A “professional peer review” is 

broadly defined under North Dakota law to include all procedures an 

organization uses or functions it performs to “monitor, evaluate, and take 

action to review the medical care provided to patients[.]” N.D.C.C. § 23-34-

01(5). 

[¶18] Here, CHI identified privileged documents as “Peer Review Committee 

correspondences,” “Peer Review Committee regular monthly meeting 

minutes,” “Credentials Committee correspondences,” “Credentials Committee 

regular monthly meeting minutes,” “Medical Executive Committee 

correspondences,” “Medical Executive Committee meeting minutes,” and “Peer 

Review Committee Documents.” The descriptions of those documents fall 

under “peer review records.” See N.D.C.C. § 23-34-01(4) (defining “Peer review 

records” as “Data, information, reports, documents, findings, compilations and 

summaries, testimony, and any other records generated by . . . a peer review 

organization as part of any professional peer review”). The descriptions also 

place the documents in the hands of “peer review organizations” under

N.D.C.C. § 23-34-01(3)(b).

[¶19] McKibbage argues he is entitled to the identities of the authors and 

recipients of the documents and their respective positions. However, that

information does not assist McKibbage in further assessing CHI’s claim of 

privilege. See N.D.R.Civ.P. 26(b)(5)(A) (stating the party withholding 

information must describe the nature of the documents in a way that enables 

other parties to assess the claim of privilege). Rather, it is information the 

legislature has determined falls within the privilege itself.
6

[¶20] We conclude CHI adequately described the nature of the documents, 

enabling McKibbage to assess CHI’s claim of privilege. The disclosure of the 

authors and recipients of the documents and their respective positions would

not add to McKibbage’s assessment, and is beyond the scope of information 

required by the legislature to be disclosed under the medical peer review 

privilege. We therefore reverse the district court order requiring CHI to

disclose the identity of the persons who created the documents and their 

positions, and the identity of the persons who received the document and their 

positions. 

IV

[¶21] In response to McKibbage’s motion to compel information, CHI requested 

an in camera review by the district court to determine whether the peer review 

privilege applied. McKibbage did not make a similar request. The court did not 

address in camera review in its order, so the request is deemed denied. Alerus 

Fin., N.A. v. Erwin, 2018 ND 119, ¶ 12, 911 N.W.2d 296. 

[¶22] We recognize in camera review may be an appropriate recourse for a 

party disputing a claim of privilege, especially when a relatively few number 

of documents are involved like here. We take guidance from the Federal Rules 

of Civil Procedure, because the North Dakota rules derive from the federal 

rules and use the same language. See N.D.R.Civ.P. 26, Version History. The

Advisory Committee Notes to F.R.Civ.P. 26 state the district court ultimately 

decides whether a claim of privilege applies if the claim is challenged. 

F.R.Civ.P. 26, Advisory Committee Notes to 1993 Amendments. The Notes also 

explain that the need for in camera examination can be reduced by providing 

sufficient information regarding the applicability of the claimed privilege. Id.

[¶23] The medical peer review statute does not address in camera review. 

N.D.C.C. ch. 23-34. Other North Dakota privilege statutes specifically address 

the practice. See, e.g., N.D.C.C. §§ 6-13-07 and 26.1-51-07 (statutes regarding 

self-critical analysis privileges provide procedure for in camera review by 

district court). Absent direction by law, district courts have discretion to review 

the challenged documents and decide whether the privilege applies. See Martin 

v. Trinity Hosp., 2008 ND 176, ¶ 17, 755 N.W.2d 900 (“A district court has broad 
7

discretion regarding the scope of discovery[.]”). Thus, the district court 

normally has discretion whether to conduct an in camera review of documents 

if a party challenges a claim of privilege identified in a sufficient privilege log.

V

[¶24] We grant the petition and vacate the district court’s November 8, 2021 

order on motion to compel.

[¶25] Jon J. Jensen, C.J. 

Gerald W. VandeWalle 

Daniel J. Crothers 

Lisa Fair McEvers 

Jerod E. Tufte