An issue often discussed but infrequently addressed is whether the attorneyâclient privilege protects
The Issue
In a massive construction lawsuit over the design and building of a community center in Bootheville, Louisiana, the parties deposed the general contractorâs former vice-president and the architectâs former construction administrator. Both were employed with their respective firms during the construction but had since left. And each met with his former companyâs lawyers to prepare for the deposition.
Deposing counsel asked about deposition-preparation conversations with their former employersâ counsel and the documents they reviewed. Counsel for the former employers objected on attorneyâclient privilege grounds, and a motion to compel ensued.
The court framed the issue: âthe question presented is simple, even if the answer is not: are conversations between counsel for a corporation and the corporationâs former employees entitled to the attorneyâclient privilege, and, if so, to what extent?â
Choice-of-Law
In this diversity case, the court first questioned whether federal or state privilege law applied, properly ruling that, under FRE 501 and the Erie Doctrine, federal courts apply state law which, here, is Louisianaâs law. Louisiana courts have not issued a âreasoned decisionâ whether the privilege applies to former employees, so the federal court predicted Louisiana law in reliance upon Chief Justice Burgerâs concurring opinion in Upjohn Co. v. United States, 449 U.S. 383 (1981) and opinions from the 4th and 9th Circuits. In re Allen, 106 F.3d 582 (CA4 1997); In re Coordinated Pretrial Proceedings, 658 F.2d 1355 (CA9 1981).
Ruling
The court found it clear that âsome privilege existsâ between a corporationâs counsel and its former employees, and just needed to outline its scope and parameters. The court ruled that the privilege applies, âat a minimum,â whereâ
- The company employed the employee during the time relevant to the lawyerâs current representation;
- The former employee possesses knowledge relevant to the lawyerâs current representation; and
- The communicationâs purpose is to assist the companyâs lawyer in
- evaluating whether the employeeâs conduct has bound or would bind the company;
- assessing the legal consequences of that conduct; or
- formulating appropriate legal responses to actions that others have taken or will take with regard to that conduct.
POP Analysis
The Hanover decision provides authority for corporate lawyersâwhether outside or in-house counselâto claim privilege over communications/interviews with former employees. But corporate lawyers should not take this decision as a blanket privilege for all communications and, instead, should ensure that former-employee interviews specifically fall within the parameters. One suggestion is to discuss these parameters with the former employee before the substantive interview and perhaps have her sign a statement acknowledging the reasons for the interview and her understanding of its confidential and privileged nature.
The court applied Louisiana (the forum state) law without addressing whether Louisianaâs conflict-of-laws rules dictated the application of another stateâs law. Although likely a moot point because the communications occurred in Louisiana, judges and practitioners should always consider whether the forum stateâs conflict-of-laws rules dictate that another stateâs privilege law applies to the putatively privileged communication. For more information on this topic, see this post and my article titled The Application of Conflict of Laws to Evidentiary Privileges.