However, it is important to note that not everything discussed with a client or client representative in preparing for a deposition is going to be protected by privilege. One such limitation is Federal Rule of Evidence 612 which provides in pertinent part:
if a
witness uses a writing to refresh memory for the purpose of testifying, either—
(1) while
testifying, or
(2)
before testifying, if the court in its discretion determines it is necessary in
the interests of justice,
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
Most cases hold that FRE 612 applies to depositions, but there a few cases that take a contrary position.[ii] Most cases hold that if a document is used to refresh a witness’s recollection in preparing a witness for their deposition, the party examining the witness is entitled to disclosure and production of the document used to refresh the witness’s recollection.
Rule 612 likely applies when the document used to refresh the witness's recollection would otherwise be subject to work-product privilege or attorney-client privilege. Some cases that hold that the waiver under FRE 612 of any work-product privilege or attorney-client privilege that might otherwise apply is automatic when a document is used to refresh the recollection of a witness, while other courts apply a balancing test looking to whether disclosure is needed for a fair cross-examination of the witness or whether the examining party is engaged in a fishing expedition.
Under the reasoning of the Supreme Court decision in Upjohn Co. v. United States, almost all courts hold that attorney-client privilege applies to communication between an attorney representing a corporate client and the former employees of the corporate client.[iii] Communication between counsel and the former employees are protected by the attorney-client privilege if the communication focuses on what the former employee knows as a result of the former employment about the circumstances giving rise to the lawsuit. However, examining counsel has the right to ask about matters that may have affected or changes the witness’ testimony, such as communication between counsel and the former employee that goes beyond the former employee’s knowledge of the circumstances at issue and beyond the former employee’s activities within the course of his employment.[iv] Nonetheless, pre-deposition communication with a former employee may be subject to the work-product privilege to the extent that they communicate counsel’s legal opinions and theories of the case.
However, not all courts take the position that attorney-client privilege applies to communications between corporate counsel and the former employees of the corporation. In Newman v. Highland School District No. 203,[v] the Washington Supreme Court declined to extend attorney-client privilege to all communications between counsel for a school district and the former employees of the school district.
Newman involved a negligence suit seeking damages for a permanent brain injury suffered by a student athlete during a football game. The former employees, football coaches, were represented by counsel for the school district for the purposes of their depositions. Counsel for the plaintiff sought to disqualify counsel for the school district from representing the former employees. The lower court denied the motion but ruled that counsel for the school district could not represent non-employee witnesses in the future.
Counsel for the plaintiff also sought discovery concerning communication between counsel for the school district and its former employees. The lower court held that attorney-client privilege did not apply to any communication with the former employees outside of the deposition representation. The Washington Supreme Court ultimately held that the lower court properly rejected the argument that the former employees should be treated the same as current employees for attorney-client privilege purposes and appropriately only allowed the school district to assert attorney-client privilege over communications during the time that the school district’s counsel “purportedly represented them at their depositions.”
In situations where a former employee is represented by counsel for a defendant corporation for the purpose of testifying at a deposition at no cost to the former employee, courts have generally not treated the former employee as having an independent right to assert attorney-client privilege, even when the employee believes that the employee is being represented by the attorney.[vi] Although, as discussed above, the Washington Supreme Court in Newman v. Highland School District No. 20 appears to have reached a somewhat different conclusion.
Finally, there is likely no privilege associated with preparing a third party who is not a client or former employee of the client. Typically, there is no attorney-client privilege with a third party absent a common interest privilege, and disclosure of work-product to a third party with whom there no is common interest privilege waives the work-product privilege. As one court has stated: “The ability of a party to meet with a non-party witness, show him documents and ask him questions and then mask the entire preparation session in the cloak of work product protection would serve to facilitate even the most blatant coaching of a witness if it could not be the subject of inquiry.”[vii]
In conclusion, in most cases, deposition prep meetings with a current or former client representative (as well as the documents selected by counsel for the client or a client representative to review) will be privileged. But, if a document is used to refresh a witness’s recollection, even a document that is otherwise subject to attorney-client or work-product privilege will be subject to production in most cases. Additionally, any communications with a former employee that go beyond the former employee’s activities within the scope of his or her former employment may not be protected by privilege. Finally, absent a common interest privilege, in most circumstances, there will not be any privilege for communications with a non-client regarding deposition or trial testimony preparation.
Author and Editor Stu Richeson is an attorney with Riess LeMieux in New Orleans, primarily focusing on commercial litigation with an emphasis on construction matters.
[i] Alexander v. F.B.I.,
186 F.R.D. 200, 203 (D.D.C. 1999).
[ii] Adidas Am., Inc. v. TRB
Acquisitions LLC, 324 F.R.D. 389 (D. Or. 2017).
[iii] Gary Friedrich
Enterprises, LLLC v. Marvel Enterprises, 2011 WL 2020586 (S.D.N.Y.
5/20/2021).
[iv] Globalrock
Networks, Inc. v. MCI Communications Services, 2021 WL 13028650 (S.D.N.Y.
5/7/2012).
[v] 186 Wash. 2d 769, 381
P.3d 1188 (2016).
[vi] Gary Friedrich
Enterprises, LLLC v. Marvel Enterprises, 2011 WL 2020586 (S.D.N.Y.
5/20/2021).
[vii] S.E.C. v. Gupta, 281 F.R.D. 169, 173 (S.D.N.Y. 2012).
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