Some may say that, when in depositions, defending lawyers generously voice “form” objections, “concisely in a nonargumentative and nonsuggestive manner,” of course, to preserve them under FRCP 30(c)(2) while the witness provides an answer.  This rule demands a more exacting approach, however, when lawyers assert an evidentiary privilege and instruct the witness not to answer a question.  And, as one lawyer recently learned, instructing the deponent not to answer based on a meritless privilege objection can result in sanctions, including paying the opponent’s attorneys’ fees, under FRCP 37(a).  You may review the opinions at Tallaksen v. Smith, No. 25-cv-1073-W-DDL, 2026 U.S. Dist. LEXIS 95726 (S.D. Cal. Apr. 30, 2026), available here, and Tallaksen v. Smith, No. 25-cv-1073-W-DDL, 2026 U.S. Dist. LEXIS 105005 (S.D. Cal. May 12, 2026), available here.

The Rules

FRCP 30(c) limits a lawyer instructing a witness not to answer a deposition question to three reasons: “to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).”  The advisory committee’s comments explain that this strict limitation is necessary because “directions to a deponent not to answer a question can be even more disruptive than objections.”  To emphasize the desire to eliminate deposition disruption, FRCP 37(a) allows the deposing party to move to compel when the deponent refuses to answer and, if the court grants the motion, requires it to award reasonable attorneys’ fees as a sanction.

From a privilege-objection perspective, the objecting attorney may avoid a fee award if he proves that his instructing the witness not to answer on privilege grounds was substantially justified.  FRCP 37(a)(5)(A)(ii).  Courts employ a reasonable-person standard when determining whether the objecting lawyer was “substantially justified” in instructing the witness not to answer on privilege grounds. This is an objective standard of reasonableness—the objecting lawyer may not avoid a fee award by showing that he objected in subjective good faith.  For a thorough discussion of this standard, read Judge Seybert’s opinion in Jackson v. Nassau Cnty., 350 F.R.D. 227 (E.D.N.Y. 2025), available here.

A “reasonable lawyer” standard necessarily requires that the objecting lawyer understand which questions call for disclosure of privileged communications and which do not.  The attorney–client privilege protects from disclosure only confidential communications made for legal-advice purposes.  Presnell & Arth, Privileges & Protections: TN & Sixth Circuit Law § 14.03 (2026).  The attorney–client privilege does not protect questions foundational to whether the privilege applies.  For example, the privilege would not preclude a witness from answering the question “did you meet with your lawyer” but would shield answering the question “what did you tell your lawyer when you met with her.”

Privilege Objections

With these rules in mind, let’s turn to the Tallaksen case for an illustration.  In this excessive-force case against a law-enforcement officer, plaintiff’s counsel deposed the officer and received multiple privilege objections with instructions not to answer.  For example, the deposing lawyer showed the officer his response to a Rule 36 request for admission and asked how he defined the word “immediate” when answering it.

Q.  How did you define “immediate” when you answered these questions?

Lawyer: Objection. Attorney-client privilege.  I’m instructing my client not to answer.

Q.  Request for Admission four, five and six asks if Mr. Tallaksen posed an immediate threat to various people in the community. Do you see those questions generally?

A.  Yes.

Q.  Can you tell me how you defined “immediate,” in your mind, when you answered these questions?

Lawyer: Objection. Attorney-client privilege.

And that’s not all.  Later, the deposing lawyer asked the officer about his search for records responsive to discovery requests and received a privilege objection.

Q.  And I’m trying to understand how you found—how you found the documents. When you looked, you couldn’t find them, and then you found them. Can you tell me how that happened?

Lawyer: Objection. This line of inquiry violates the attorney-client privilege.

Q.  So in asking the witness about what he did to search for records responsive to the request previously violates the privilege?

Lawyer. Yes.

Can you sense the incredulity of the deposing lawyer when he received this privilege objection?  And these were only two examples.  If you are interested in reviewing more, the entire deposition is here.

Court’s Ruling

The defending lawyer argued that his privilege objections were substantially justified because his client participated in drafting discovery responses.  The court rejected this as an objectively unreasonable position, finding that this argument “is inconsistent with the longstanding rule that the attorney-client privilege protects communications, not underlying facts.” 

The court also found objectively unreasonable the defending lawyer’s instructing the officer not to answer an entire line of questions, ruling as follows:

But asking [the officer] about the documents he reviewed did not, on its face, require him to divulge privileged communications with his counsel.  And by asserting the privilege as to the entire line of questioning, defense counsel prevented Plaintiff from asking questions seeking non-privileged information.

The defending lawyer claimed that his objection to the officer answering whether he reviewed produced documents was reasonable because the officer and the lawyer worked together to identify responsive documents.  The court also deemed this argument objectively unreasonable because it “is inconsistent with the precept that the attorney-client privilege does not ‘create a broad zone of silence over the subject matter of the attorney-client communication.’”

In short, these types of objections created the deposition disruption that concerned the rules committee when inserting the objection limitation into FRCP 30(c).  The court therefore ordered the defending lawyer or his client to pay plaintiff’s counsel’s fees and the costs for filing and prosecuting the motion to compel–asserted to be over $29,000–plus the costs of the office sitting for a second deposition.

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Companies commonly maintain standing committees or groups to review information and decide on employee discipline and terminations.  This raises the question of whether the attorney–client privilege protects from compelled disclosure the information presented to those groups when a lawyer is a member.  One court has said no—because the employee information was not delivered to the group for the primary purpose of securing legal advice.  Oubre v. Dow Chem. Co., 2026 U.S. Dist. LEXIS 105329 (E.D. Tex. May 12, 2026).  Opinion available here.  Let’s discuss and learn.

Performance Issues or Age Discrimination?

Long-time Dow Chemical employee Ms. Oubre, age 57, allegedly had a sterling record of performance before her immediate supervisor (Njigha) sent her a “last chance letter” in late 2024 identifying alleged work-performance lapses.  Then, in early 2025, Njigha allegedly found another infraction and presented the issue at an Employee Review Meeting.  The meeting did not end well for Oubre—Dow terminated her employment and she then brought an age-discrimination lawsuit.

Employee Review Meeting

The ERM team on this occasion included Oubre’s supervisor (Njigha), a neutral leader, a human resources representative, and an in-house lawyer.  Njigha prepared a PowerPoint presentation to aid her report about Oubre’s purported misconduct.  Dow objected to producing the PPT, claiming the attorney–client privilege protected it, and Dow properly identified the document on a privilege log.  But Oubre did not buy Dow’s privilege assertion and filed a motion to compel.

Dow argued that Njigha prepared the PowerPoint deck for its legal counsel to provide advice on any action the company may take against Oubre.  But was Dow’s proof supporting this argument robust enough?

Privilege Standard—Primary Purpose

The court recognized the Upjohn adage that the attorney–client privilege protects communications between a company’s employees and its legal counsel when employees make those communications at the direction of corporate superiors concerning matters within the scope of their duties.  To implement this standard, and relying on United States v. Brown, 151 F.4th 647 (CA5 2025), the court required Dow to prove that the PowerPoint presentation was confidential and that Njigha created it “for the primary purpose of securing either a legal opinion or legal services.”

Ruling

The court focused on the primary purpose for creating the PowerPoint and, for several reasons, found that the primary purpose of the ERM—and thus the information supplied to the ERM—was business related.  Deposition testimony of Dow employees revealed that the ERM’s purpose is to ensure that the company makes fair and equitable employee-discipline decisions.  And Njigha gave the presentation to both a lawyer and non-lawyers.  These facts, in the court’s view, showed that the ERM primarily served a business, rather than a legal, function.

But Njigha sent the PowerPoint deck to an in-house lawyer, and an in-house lawyer participated in the ERM decision-making process, so why did that not tip the scales in favor of privilege protection?  Three reasons, according to the court.  First, the fact that Njigha sent the presentation to the legal department does not automatically cloak it with privilege protection; rather, courts consider that fact as one of several when making a “primary purpose” determination.  Second, and similarly, the lawyer’s presence in the ERM meeting does not necessarily invoke privilege protection; again, the court treats it as one piece of the primary-purpose puzzle for consideration.

Third, and finally, the court viewed the in-house lawyer’s participation in the decision whether to terminate Oubre as a privilege killer.  This participation further suggested that her presence in the ERM process “served a business, rather than purely legal, function.”

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Each of the fifty states recognize some variation of medical peer-review privilege that protects from compelled disclosure certain defined information arising from a healthcare provider’s peer-review activities. Virmani v. Novant Health, Inc., 259 F.3d 284 (CA4 2001).  The privilege encourages medical providers to hold candid discussions following an adverse medical event which, in turn, promotes continued medical-care improvement.

The privilege most often arises in medical-malpractice actions which plaintiffs typically file in state courts.  But the privilege also surfaces in federal-court actions.  For example, parties seek peer-review information in medical-malpractice actions filed under diversity jurisdiction. They may seek peer-review information in cases premised on federal-question jurisdiction, such as claims under federal anti-discrimination statutes or for insufficient medical care under 42 U.S.C. § 1983 or the Emergency Medical Treatment and Active Labor Act (EMTALA). These discovery efforts present a complex question—whether, and how, a peer-review privilege applies when the issue presents itself in federal court.

Choice of Law Issues

Highly consequential yet often ignored, the first question in applying a peer-review privilege in federal court is whether federal or state privilege law applies.  In general, Federal Rule of Evidence 501 dictates that federal privilege law applies when the federal court entertains the civil action under federal-question jurisdiction, 28 U.S.C. § 1331, and state privilege law—as governed by the forum state’s conflict-of-privilege-law rules—applies when the court considers the case under diversity jurisdiction. 28 U.S.C. § 1332.  For a more detailed explanation of these issues, see 1-2 Privileges & Protections: TN & Sixth Circuit Law § 2.02 Conflicts of Privilege Laws in Federal Court (2024).

For current purposes, let’s focus on the peer-review privilege’s application when one files a claim against a healthcare provider in federal court based on federal-question jurisdiction and then seeks peer-review materials from that provider. Three questions arise.

Is There a Federal Common Law Peer-Review Privilege?

While a few federal district courts have applied a medical peer-review privilege under federal common law, such as Weekoty v. United States, 30 F. Supp. 2d 1343 (D.N.M 1998) and Bredice v. Doctors Hosp., 50 F.R.D. 249 (D.D.C. 1970), the majority of federal courts have refused to recognize a common-law peer review privilege, as discussed in this article and in this section of my privileges treatise.  1-11 Privileges & Protections: TN & Sixth Circuit Law § 11.05[5][a] Medical Peer-Review Privilege in Federal-Question Cases (2024)

Is There a Federal Statutory Peer-Review Privilege?

Two federal statutes provide healthcare providers with some hope of protection of peer-review materials.  First, the Health Care Quality Improvement Act of 1986 (HCQIA), 42 U.S.C. § 11101 to -11152, provides immunity to peer-review bodies and those participating in a peer-review process, but most courts refuse to find that this immunity equates to an evidentiary privilege.  See Atteberry v. Longmont United Hosp., 221 F.R.D. 644 (D. Colo. 2004).

Second, the Patient Safety and Quality Improvement Act (PSQIA) creates a reporting system for healthcare providers to report adverse medical events to a designated Patient Safety Organization (PSO) and installs an evidentiary privilege for “patient safety work product” submitted to the PSO. 42 U.S.C. § 299b–21(7).  The privilege is narrow, however, and requires detailed proof that the putatively privileged materials were evaluative and submitted to a PSO.

Do Comity Principles Ever Play a Role?

With no federal common-law privilege, no statutory privilege under the HCQIA, and a limited privilege under the PSQIA, some argue that a federal court should apply a state-law peer-review privilege under comity principles.  And while some courts agree that comity supports applying a state peer-review privilege in federal-question cases, such as Mattice v. Mem’l Hosp. of S. Bend, 203 F.R.D. 381 (N.D. Ind. 2001) and LeMasters v. Christ Hosp., 791 F. Supp. 188 (S.D. Ohio 1991), the comity concept seems contrary to federal law requiring application of federal privilege law in federal-question cases.

Putting it all Together: A Case Study

So, how do these principles apply in practice?  Judge Poplin’s opinion in Est. of McCleary v. QCHC of Tenn., PLLC, 2025 U.S. Dist. LEXIS 13275 (opinion also available here), provides a good illustration.

Joshua McCleary died in the ER of the Sweetwater Hospital Association (SWHA) after being transferred there from the Monroe County (TN) jail.  His estate filed suit in federal court asserting constitutional claims through 42 U.S.C. § 1983 against the government defendants and a claim against SWHA under EMTALA, 42 U.S.C. § 1395dd.  The Estate specifically invoked federal-question jurisdiction and did not assert any supplemental state-law claims, such as a medical-malpractice claim.

Discovery of Peer-Review Materials

The Estate sought SWHA’s peer-review materials related to McCleary’s treatment and addressed the peer-review privilege head-on with this cover email—

Undaunted, SWHA argued in response to the subsequent motion to compel that, while most federal courts disfavor applying a federal peer-review privilege, some courts distinguish between solely federal-question cases, such as claims under federal anti-discrimination statutes, and state-law medical malpractice claims.

Refusal to Recognize a Federal Common-Law Peer-Review Privilege

Judge Poplin began her privilege assessment by refusing to recognize a federal common-law peer-review privilege, noting in particular that the Supreme Court “has expressed reluctance to expand the parameters of privilege law in recent years” and that the “weight of authority in the Sixth Circuit and elsewhere is that no medical peer review privilege exists under federal common law.”

The judge recognized that some federal courts have applied state peer-review privileges when the case includes a state-law medical-malpractice claim, but refused SWHA’s invitation to treat the EMTALA claim as a state-law medical-malpractice claim for privilege purposes.

No Proof to Support a Patient Safety Work Product Claim

The PSQIA statute offered SWHA a final opportunity to secure peer-review protection, but the court rejected that as well.  The judge noted that, to secure PSQIA protection, a healthcare provider must prove (1) that the putatively privileged document was created for the purpose of reporting to a PSO and (2) was “so reported.”  SWHA lacked any evidence supporting either prong, leading the judge to easily conclude that the PSQIA offered no privilege protection.

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Federal banking regulations, such as this FDIC regulation, mandate the confidentiality and non-discoverability of suspicious-activity reports (SAR) without mentioning the word “privilege.” As you can read more about in 1-6 Privileges & Protections: TN & Sixth Circuit Law § 6.05 (2024), many courts have nevertheless ruled that these regulations create an evidentiary privilege that prohibits either a bank or a banking regulator from disclosing a SAR or information about the filing or non-filing of a SAR.

So, how do these SAR regulations play out during discovery and trial?  The court’s decisions in Camenisch v. Umpqua Bank, 2025 U.S. Dist. LEXIS 9755, provide an outline. In this case, the court reviewed several banking documents in camera and ruled that some, but not all, fell within the SAR privilege’s scope.  And just before trial, it precluded the parties, including plaintiffs’ expert, from mentioning SAR-related information while permitting them to discuss the bank’s investigative efforts.  And because these restrictions and permissions may result in the jury hearing less than the full story, the court decided to inform the jury, through a special instruction, why federal SAR regulations precluded them from hearing more.  Let’s look at the details.

Increase in SARs

While a relatively obscure evidentiary privilege, the SAR privilege may attract courts’ increased attention in the years ahead.  As reported by FinCEN, and summarized in the chart below, depository institutions more than doubled their SAR filings over the last decade, with significant increases in 2022 and 2023.

From: FinCEN

One can reasonably assume that criminal and civil litigation will erupt from activities underlying these filings and, if so, lawyers and courts will have to maneuver through the SAR privilege with more frequency than ever before.  Perhaps the Camenisch case will offer some guidance.

A Class Action and Banking-Industry Expert

Several investors in a real-estate investment fund filed a class-action lawsuit against Umpqua Bank after sustaining losses.  The investment fund’s founders, as it allegedly turned out, lost money and began a Ponzi scheme through which it used new investor money to pay prior investors.  The scheme unraveled and, with one owner dead, another in prison, and the fund in bankruptcy, the investors turned to Umpqua Bank for relief.

The plaintiffs-investors claim that the bank had knowledge of the Ponzi scheme, due in part to many “red flags” on the investment fund’s account, but failed to do anything about it.  The plaintiffs disclosed a banking-industry expert, a former state banking commissioner, to offer opinions on typical practices in the banking industry, which transactions lack business justification, and the types of customer behavior that banks should consider so-called red flags.

Umpqua denies plaintiffs’ assertions and the case is currently headed to trial as a certified class action for reasons you can read about in this court order.

Discovery of SAR Information

During discovery, plaintiffs requested information related to suspicious-activity alerts arising from the investment fund’s account and the bank withheld over 100 documents on the basis that the SAR privilege precluded production.  The court, citing an OCC regulation (12 C.F.R. § 21.11(k)), stated that “[a] SAR, and any information that would reveal the existence of a SAR, are confidential, and shall not be disclosed.” But how does one apply this privilege in practice?

Citing the First Circuit’s opinion in In re JPMorgan Chase Bank, N.A., 799 F.3d 36, 2015 U.S. App. LEXIS 14721, the court, in an opinion available here, held that “the key query” in assessing the SAR privilege’s scope is whether the document “suggest[s], directly or indirectly, that a SAR was or was not filed.” Despite the bank’s contrary arguments, this standard does not protect all documents underlying a SAR and provided this example—

Some bank prepared documents may simply aggregate relevant account or transactional information, flag potentially suspicious activity that needs to be investigated further, or explain what steps need to be taken as part of that investigation. Documents like these may reflect the bank’s due diligence, but they won’t always shed light on whether or not a SAR was filed.

And using these standards, the court reviewed the bank’s 100+ documents in camera and determined that only 12 fell within the SAR privilege

Expert Opinion Restrictions and an Explanatory Instruction

Having achieved some SAR privilege success in the discovery phase, the bank became concerned that, if plaintiffs’ banking-industry expert testified that the bank performed no investigation in response to anti-money laundering alerts, it could not use the SAR-privileged information to show how it actually investigated those alerts.  The bank therefore moved to exclude the expert’s opinion regarding the bank’s investigation efforts.

The court, in an opinion available here, again noted the SAR privilege’s narrow application, stating that the privilege “only extends to testimony that would reveal the filing or non-filing of an SAR.”  This privilege does not, according to the court, “encompass the details of an investigation leading to the decision whether to file a SAR.”

The court therefore allowed both parties to introduce testimony about the bank’s investigations but stated that it would—before any such testimony—provide the jury with an instruction that the SAR privilege prevents the bank from revealing whether it filed a SAR in connection with any investigation and that it withheld certain documents from plaintiffs due to the SAR privilege.  The parties then worked together and proposed this joint jury instruction:

In the short term, we will see how this jury deals with explanations of the SAR privilege and in the long term, we may see how other lawyers and courts handle what could be an increase in SAR privilege claims.

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It’s a conundrum, for sure.  A company receives notice of potential wrongdoing, directs its in-house counsel to investigate the issue, and then must decide how, if at all, to affirmatively use the investigation to defend its conduct.  A significant consideration in determining whether to use investigation results is waiver of privilege and work-product protections.

The court’s decision in a trade-secrets case against Nvidia illustrates the potential waiver perils when faced with this issue.  Following assertions that a recent hire brought a competitor’s trade secrets to Nvidia, the company’s in-house counsel, and others, investigated the veracity of those allegations.  The company then used an in-house lawyer’s affidavit to convince a German court of the non-existence of the competitor’s trade secrets within it system.  Let’s see how this decision affected waiver arguments in a U.S. federal court. Valeo Schalter Und Sensoren GmbH v. NVIDIA Corp., No. 23-cv-05721-EKL (VKD), 2025 U.S. Dist. LEXIS 2221 (N.D. Cal. Jan. 6, 2025) (opinion also available here).

Employee Download, Criminal Investigation, and a German Civil Proceeding

Valeo, a German-based company, created source codes and other proprietary information related to its parking-assistance technology.  One of its employees allegedly downloaded over 27,000 files and later joined Nvidia, which was also developing parking-assistance technology, and six months later, German officials began a criminal investigation.  Two other things occurred: Nvidia began an internal investigation and Valeo initiated civil proceedings against Nvidia in Germany.

As part of the civil proceedings, the German court ordered Nvidia “to perform comprehensive searches for Valeo code files.”  What was Nvidia to do?

Nvidia Investigation, Affidavits, and a Disclosure

Nvidia’s head of IT Security, with the assistance of an in-house lawyer, oversaw a detailed search for Valeo source codes across Nvidia’s computers and source code repositories.  Another in-house lawyer participated as well by interviewing numerous Nvidia employees and specifically emailing those who worked with the former Valeo employee to ascertain whether they received any of Valeo’s proprietary information.

To show that it complied with the German court’s investigation order, Nvidia filed affidavits from its in-house lawyers, available for review here and here, describing their investigation-related work and their findings that Nvidia systems were free of Valeo’s source codes.  These lawyer affidavits included verbatim quotes from their employee communications.

It worked.  The German court found Nvidia in compliance with the investigation order and declined to impose any penalties.  Valeo withdrew its civil action.

U.S. Trade Secrets Case

That détente didn’t last long as Valeo filed a trade-secrets case against Nvidia in a U.S. federal court and sought production of Nvidia’s investigation materials. Nvidia refused, claiming that the attorney–client privilege and work-product doctrine protected those materials from production.

But did Nvidia waive these protections by filing its in-house lawyers’ affidavits in the German action?

Waiver Law

Let’s quickly review waiver principles for the attorney–client privilege and work-product doctrine—because they are different.  As the Valeo court recognized, a privilege holder may waive the attorney–client privilege expressly by disclosing protected information to a third party or otherwise making it public.  And the privilege holder need not have intended to waive the privilege—the disclosure alone is usually enough.  The privilege holder may also waive the privilege by implication, such as asserting a defense that relies on privileged information.

By contrast, one may expressly waive the work-product doctrine by disclosing protected materials to an adversary in litigation or in a manner that, as the court correctly put it, “substantially increases the opportunities for potential adversaries to obtain the work product.”

Ruling—Work Product Waiver

Applying these legal standards, the court “easily concluded” that Nvidia’s voluntary decision to rely on its in-house lawyers’ affidavits in the German proceeding waived the work-product protection in the U.S. proceeding.  Nvidia argued that its in-house counsel disclosure was involuntary because the German tribunal ordered an investigation and wanted to know the results. But the U.S. court noted that the German court did not require Nvidia to “submit affidavits from its attorneys” to show compliance with its investigation order.

And these affidavits disclosed the investigation’s details, identity of employee-witnesses, and content of employee interviews, resulting in the U.S. court concluding this—

In short, Nvidia has made its in-house counsel fact witnesses.

The U.S. court noted, however, that this express waiver extended only to fact work product and did not “automatically extend to opinion work product, which typically includes counsel’s mental impressions, conclusions, opinions, and legal theories.” While a party may certainly waive opinion work product, such as where it affirmatively places its attorneys’ opinions at issue, Nvidia limited its lawyers’ affidavits to the factual part of the investigation without diving into their opinions.   

Ruling—Attorney–Client Privilege

As to Nvidia’s privilege objection, the U.S. court, again easily, found that Nvidia waived the privilege over its in-house lawyer’s communications with employees during the investigation because he disclosed those communications in his German affidavit.  The court seemed skeptical, too, of Nvidia’s claim that the privilege covered its IT employee’s investigation materials, providing this warning:

The Court reminds Nvidia that a communication is not privileged merely because an attorney is copied on it; nor does the privilege encompass a record that is attached to, linked with, or pasted into a communication seeking advice of counsel, where the record itself is not privileged.

But the court stopped its admonitions and waiver findings there after finding that Nvidia had not, to date, relied on privileged information to defend the U.S. action which would have otherwise warranted an implied-waiver finding.

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