Discussing the corporate attorneyâclient privilege, the Supreme Court in Upjohn Co. v. U.S., 449 U.S. 383, 395â96 (1981), stressed that â[a] fact is one thing and a communication concerning that fact is an entirely different thing.â A Florida appellate court followed this tenet when ruling that the corporate attorneyâclient privilege precluded the trial testimony of a companyâs in-house litigation counsel. The court upheld the privilege because the lawyerâs communications with employees were for purposes of responding to a discrimination charge filed with the state Human Relations Commission. But what about the facts within the companyâs response? Herrera v. Jarden Corp., 334 So. 2d 637 (Fla. Dist. App. Ct. 2022). Available here. Letâs discuss.
Discrimination Charge and Response
Jarden Corporation, later acquired by Newell Rubbermaid, terminated Odalys Herrera, its former Director of Internal Audits, for the stated reason of revealing the companyâs confidential information to a third person to complete audit work for which Herrera was responsible. As a prerequisite to filing suit, Herrera lodged a discrimination charge with the Florida Commission on Human Relations claiming that Jarden terminated her because of her disabilities.
The Commission wanted Jardenâs response to Herreraâs allegations. Jardenâs in-house litigation counsel, who did not have personal knowledge of the companyâs termination reasons, talked with employees, gathered information, and sent the Commission a position statement describing the companyâs reasons for termination.
Deposition and Trial
Herrera ultimately filed suit, and her lawyer sought to depose Jardenâs in-house lawyer. Jarden objected on privilege grounds, but the lawyers cut a dealâJarden would not object to the position statementâs admissibility if Herreraâs lawyer would forgo the in-house lawyerâs deposition. Would Herreraâs lawyer regret this pact?
When trial approached, Herreraâs lawyer sought to call the in-house lawyer as a trial witness. His stated reasons were to ask counsel about her communications with employees. For example, he wanted to ask the lawyer âwhy that position statement states what it does,â âwhatâs in the position statement and why itâs there,â and âwhere she got the information from, who she spoke to, and whoâs telling her this.â
Jarden moved to exclude the lawyerâs entire testimony because the corporate attorneyâclient privilege protected it from disclosure. The trial court upheld the objection, precluded the lawyerâs testimony, and, after a three-week trial, entered judgment in Jardenâs favor.
Herrera appealed claiming, among other things, that the trial court erred in precluding the in-house lawyerâs trial testimony.
Ruling
Floridaâs attorneyâclient privilege applies to corporations, of course, and specifically to âcommunications between employees an in-house general counsel, whether oral, contained in documents or contained in a database.â The privilege covers employeesâ communications where the content relates to the legal services being rendered and falls within the scope of their employment.
The appellate court held that the privilege protected the employeesâ communications to the in-house lawyer made for purposes of the lawyer preparing the position statement. Noting that Herrera wanted to ask the lawyer about employee communications to herââwhere she got the information fromââand not the basis for the companyâs termination decision, the court ruled thatâ
There is a distinction between the employeesâ discussions with the corporate attorney and the statements contained within the position paper the attorney prepared and submitted to the FCHR. The former are privileged, just like any clientâs conversation with an attorney that leads to the attorneyâs preparation of a complaint or other pleading.
One may reasonably ask whether Herreraâs lawyer could have questioned the in-house lawyer about the companyâs factual basis for the termination decision as opposed to the employeesâ communications to her about that decision. The court indicated yesâit distinguished a federal case that permitted a plaintiff to ask a corporate representative about the factual bases for statements in its position statement.
But here, the in-house lawyer had no personal information about the termination reasons, and Herrera’s attorney limited the proposed questions to employeesâ communications to in-house counsel. So, due to this distinction, the court âreject[ed] Plaintiffâs assertion that attorneys who draft position statements are subject to cross-examination on them and being called as trial witnesses.â
In other words, a fact is one thing and a communication concerning that fact is an entirely different thing.