It’s no secret. Corporate trial lawyers often hold a group meeting of several employees to prepare them for upcoming depositions. The idea, of course, is one of efficiency—the lawyer may provide an overview of the case, discuss the relevance of the employees’ testimony, and give deposition instructions in one meeting rather than multiple preparation sessions.
The question may arise whether the attorney–client privilege protects these group discussions from disclosure. And here is a twist—even if the privilege protects the employees’ individual conversations with the lawyer, does it also protect conversations within the group meeting between two employees?
The court’s decision in Pallies v. The Boeing Co., 2017 WL 3895614 (W.D. Wash. Sept. 6, 2017), provides guidance. You may read it here.
In this disability-discrimination case against The Boeing Company, Boeing’s lawyer met with several Boeing employees in a group setting to prepare them for upcoming depositions. Boeing’s counsel did so “in an effort to comply with an aggressive discovery schedule” that included 8 employee depositions over 3 days.
Plaintiff’s counsel moved to compel testimony about this group session, claiming that the privilege did not cover conversations in the meeting among the employees not specifically involving counsel. Plaintiff’s counsel argued that this group session was not for legal-advice purposes, but rather to “get their stories straight”
Boeing went to great lengths to dispel this novel privilege-waiving theory. Boeing submitted its counsel’s declaration plus the declarations of each employee-witness. The employees declared, appropriately, that they sought Boeing counsel’s legal advice to prepare for the deposition. You may read an example declaration here.
The court quickly dismissed Plaintiff’s theory and ruled that, under Upjohn, the attorney-client privilege covers corporate counsel’s meetings with one or more employees. The court found Plaintiff’s privilege-waiver theory “spurious,” noting that there was no evidence that the employees communicated with each other during the meeting for any reason other than receiving legal advice from Boeing’s counsel.
This is one of those situations where you assume you know the answer, but become concerned that you missed something as soon as the motion to compel hits your desk. In Upjohn, or subject-matter, jurisdictions, corporate trial counsel should be able to conduct depo-prep sessions with multiple employees without waiving the privilege. The Pallies case provides good authority if this challenge ever comes your way.