You may instruct your client not to answer a deposition question where “necessary to preserve a privilege,” but, if so, you should be prepared to defend it. And defending it means knowing the privilege’s scope and application in all settings, as a Connecticut court recently validated. The court vetoed a lawyer’s instruction that his client refuse to reveal communications with a co-client—even though the lawyer argued that his two clients talked at his direction—for failure to prove that their conversation was “inextricably linked to the giving of legal advice.” Mianus River Gorge, Inc. v. Meyer, 2021 WL 1595429 (Conn. Super. Ct. Mar. 24. 2021). You may read the opinion here.
In a property-related dispute, a lawyer represented two defendants as joint clients. Plaintiff’s counsel deposed one of them, Mead, and asked him to disclose his conversations with the co-client, Meyer, made without their lawyer’s presence. Does this question call for disclosure of privileged communications? The defense lawyer thought so and instructed Mead not to answer.
Here is an example of the colloquy between plaintiff’s counsel (P) and Defendant’s counsel (D).
P: Did you discuss the filing of this [Answer] with Gretchen Meyer at any time prior to January 28, 2020?
D: I’m going to object to that and instruct him not to answer. They are co-defendants and the discussion with regard to litigation matters is privileged and if it took place under the direction or supervision of counsel.
P: Outside the presence of your counsel, be it in person, by telephone or remote conference, did you have any discussions regarding [the Answer] with Gretchen Meyer prior to January 28 2020?
D: I’m going to object to that and instruct him not to answer because any discussions between co-defendants would be done under the direction of counsel in preparation for defense of this litigation, and therefore it’s privileged.
P: How is it privileged?
D: Because the conversation is being conducted under the direction and supervision of counsel, even if counsel was not present.
P: Mr. Mead, are you refusing to answer the question on the advice of your counsel?
D: I’m instructing him not to answer that question.
You may read more of these excerpts here.
Barring a conflict, of course, lawyers may represent two or more clients regarding a single matter, but the clients need to know the boundaries of the attorney–client privilege as it relates to shared communications in this relationship. The privilege protects communications between the lawyer and her clients as to third parties, but it does not protect those communications if the two clients become adverse.
Otherwise, the privilege’s foundational elements remain constant. In deposition setting, the Mianus court held that, to sustain those instructions not to answer, Mead must prove that “any facts the question would elicit are inextricably linked to the giving of legal advice.” And unless inextricably linked, “a communication from attorney to client solely regarding a matter of fact would not ordinarily be privileged.”
The court ruled that Mead failed to prove that his response to the objectionable questions would have revealed facts that were “inextricably linked” to legal advice. The objection to revealing communications between the co-clients—outside counsel’s presence—was simply “overbroad.” And the court rejected defense counsel’s objection at the deposition that his clients communicated “at his direction,” saying—
Such a blanket privilege does not exist and would be an open invitation to discovery abuse. Counsel cannot insulate discoverable facts known to co-defendants simply by directing the parties to communicate with each other concerning the subject matter of the dispute.
There is one caveat: the privilege applies to co-clients’ communications if they are discussing their privileged communications with counsel. But the party asserting the privilege in this setting must prove it, not just say it as part of the deposition objection. And that Mead wholly failed to do—no affidavit; no testimony; nothing. So, the court explained its final edict this way—
The blanket objections at the deposition shut off inquiry into matters that might well have been discoverable and discouraged follow-up inquiries that would have tested the assertion of privilege and the parameters of any privilege asserted.