Risky and uncertain privilege and work-product concerns arise when a company designates an in-house attorney to serve as a FRCP 30(b)(6) deposition witness. A decision from the ND ILL illustrates the perils.
The court ruled that a company must produce privileged materials that its in-house counsel reviewed while preparing for her deposition—simply because she used them to refresh her recollection and for the purpose of testifying. Baxter Int’l, Inc. v. Becton, Dickinson & Co., 2019 WL 6258490 (N.D. Ill. Nov. 22, 2019). You may read the decision here.
Becton Dickinson (BD) designated one of its in-house lawyers as its corporate witness for certain topics that Baxter Int’l identified in a FRCP 30(b)(6) deposition notice. To prepare for the deposition, she met with BD’s outside counsel and reviewed documents that included an internal patent-advice memo and a legal-advice memo from outside counsel.
In other words, she reviewed privileged materials that BD had—properly—not disclosed.
At her deposition, the in-house attorney testified that she reviewed the privileged documents to “refresh her recollection.” While the deposition transcript is under seal, I suspect that the questioning lawyer used that phrase for a reason. But no matter, BD did not dispute that the lawyer’s review refreshed her memory.
But why would a private review of privileged information waive the privilege?
We primarily but not exclusively see this phenomenon in employment-related cases, and particularly retaliation cases. The employee-later-to-become-plaintiff communicates with the employer’s in-house lawyer. In a subsequent lawsuit, the employee-now-plaintiff includes her conversations with the in-house lawyer in the Complaint’s allegations. What can the employer do?
One court provided some guidance on this sensitive issue. While dismissal of the Complaint is an option, the Court has “many equitable measures at its disposal,” short of dismissal, to minimize damage from disclosure of privileged communications. Jett v. County of Maricopa, 2019 WL 6310252 (D. Ariz. Nov. 25, 2019). You may read the opinion here.
On August 9, 2018, Dawn Jett, a Human Resources Group Manager for Maricopa County, met with the County’s in-house attorney and reported alleged FLSA violations. On August 10, Jett’s supervisor fired her.
In her subsequent Complaint for FLSA retaliation, redacted version available here, Jett included allegations that recounted her discussions with the in-house lawyer. Jett’s repeated conversations included that her supervisor violated state law and failed to follow county policies. Other allegations included Jett asking for “clarity” of certain policies and the in-house lawyer’s response.
Even if Jett’s discussions with the county’s in-house counsel triggered her next-day firing, do they not also constitute communications that would lead the attorney to give the county legal advice? And if so, what are the county’s options?
The county filed a
Sometimes, it’s about making the most of a second chance. The SD of Ohio found that Proctor & Gamble completely failed to prove that the attorney–client privilege or work-product doctrine protected certain documents from discovery.
Yet, the Court gave P&G a mulligan. And in its second chance, P&G submitted “competent evidence” to prove privilege protection—including over emails that did not include attorneys. McCall v. The Proctor & Gamble Co., 2019 WL 3997375 (SD Ohio Aug. 22, 2019). You may read the opinion here.
You Lose, but ….
World-renowed photographer, Annette Navarro, and her LLC sued P&G and Wal-Mart for copyright infringement over their alleged improper use of Navarro’s images on Olay products. You may read the news story in this Cincinnati Business Courier article.
P&G withheld a variety of communications from discovery on privilege grounds, including several emails “in which an attorney does not appear in the ‘to,’ from,’ or ‘cc’ fields.” When Navarro moved to compel them for lack of privilege protection, P&G filed a response, available here, arguing the privilege applied but without any evidence to support the argument.
The Court, in its opinion available here, noted that