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. More…
Okay, it was a DC steakhouse, not a bar, and this is no joke.
Two of President Trump’s personal lawyers—Ty Cobb and John Dowd—ate lunch at BLT Steak on a recent Tuesday and discussed differing legal strategies for responding to Director Mueller’s Russian-related document requests. They dined and debated with no knowledge that New York Times reporter Ken Vogel sat at an adjacent table secretly taking notes of the lawyers’ conversation.
Photo: @kenvogel Twitter
What does this episode mean for President Trump’s potential invocation of executive privilege? What lessons can all lawyers derive from this inside-the-beltway faux pas? Let’s discuss.
“Every Washington Reporter’s Dream”
In a recent NYT article, ‘Isn’t that the Trump Lawyer?’: A Reporter’s Accidental Scoop, Vogel provided a blow-by-blow account of his encounter with the two Trump lawyers. He met a source at BLT Steak for lunch and, shortly after ordering, the restaurant seated Messrs. Dowd and Cobb at a table directly behind Vogel. More…
May you disclose a privileged document to a government-enforcement agency and, later, successfully claim that the privilege precludes disclosure to an adversary in a civil proceeding? Generally, there is no common-law selective-waiver doctrine, but the SDNY, in In re: Ex Parte Application of financialright GmbH, 2017 WL 2879696 (SDNY June 23, 2017), found no privilege waiver when Volkswagen’s lawyers disclosed privileged information to the Justice Department under a Non-Disclosure Agreement. You may read the opinion here.
Internal Investigation into Emissions Scandal
Volkswagen’s 2015 emissions scandal—where it inserted software to circumvent U.S. emissions tests—is well known. VW retained Jones Day, which conducted an extensive factual investigation as part of its representation. Jones Day analyzed millions of documents and interviewed hundreds of VW employees.
DOJ Deal More…