Straight Outta Kentucky: Boilerplate Objections Waive Privilege

Remember R&B artist Prince Phillip Mitchell?  The Louisville native is a long-time singer-songwriter who reached his height of popularity in the 1970s.  He wrote and recorded several songs, including Star in the Ghetto, which appeared on his 1978 album Make it Good.

Fast forward ten years to 1988, when rap group N.W.A. released its debut album, Straight Outta Compton, produced in large part by Andre Romelle Young—known to us as Dr. Dre.  This album contained Dr. Dre’s rap tune, If It Ain’t Ruff.

Fast forward thirty years to 2018, where Mitchell claims in a Kentucky federal court that, in writing, producing, and publishing If It Ain’t Ruff, Dr. Dre “unlawfully and intentionally sampled the distinctive and important elements” from Star in the Ghetto, and therefore infringed on his copyright.  You may read the complaint here, and Insider Louisville’s story about the case here.

Let’s get to the privilege issue; after all, this is a privileges blog and not a 1970s R&B blog (though that would be more fun). More…

NY Legislature Overturns “Thompson Rule”—Permits (Privilege) Objections at Third-Party Depositions

In 2010, a New York Appellate Court issued a decision prohibiting lawyers for non-party witnesses from participating in, and lodging objections, including privilege objections, at depositions.  A PoP post discussed this case, Thompson v. NY state capitolMather, and its progeny, which you may read here.

The so-called Thompson Rule made little practical sense, and left third-party witnesses unprotected from asserting evidentiary privilege objections to a lawyer’s questions.  And, of course, disclosing privileged information in a deposition setting constitutes privilege waiver that compounds the problem.

Due to the work of several bar organizations, the New York State Assembly passed a Senate Bill (S5077) allowing third-party witnesses to assert objections during their depositions.  Governor Cuomo signed the legislation into law on September 23, 2014.  The statute provides:

Examination and cross-examination of deponents shall proceed as permitted in the trial of actions  in open  court, EXCEPT THAT A NON-PARTY DEPONENT’S COUNSEL MAY PARTICIPATE IN THE DEPOSITION AND MAKE OBJECTIONS ON BEHALF OF HIS OR HER CLIENT  IN THE  SAME MANNER AS COUNSEL FOR A PARTY.  When the deposition of a party is taken at the instance of an adverse party, the deponent may be cross-examined by his OR HER own attorney. Cross-examination need not be limited to the subject matter of the examination in chief.

The statute takes effect immediately, and now third-party witnesses in New York will not have to deal with the nonsensical Thompson Rule.

Silence! Article Discusses Prohibition of (Privilege) Objections at Nonparty Witness Depositions 1

In February 2010, a New York appellate court issued an alarming ruling that “counsel for a nonparty witness does not have a right to object during or otherwise participate in a pretrial deposition.” Thompson v. Mather, 894 N.Y.S.2d 671 (App. Div. 2010).  In this medical malpractice case, the court prevented counsel for nonparty physicians from asserting objections during their pretrial depositions.

In a recent article, noted evidence and civil procedure author David Paul Horowitz explains that, while recent New York decisions somewhat erode the Thompson decision, caution is in order.  See Not Sure if I can Say Something, 85 N.Y. St. Bar J. at 22 (Jan. 2013).Be Quiet  The article, available here, reviews recent decisions that, despite Thompson, (1) permit attorneys representing a party and the nonparty deponent to interpose objections; (2) allow attorneys to interpose objections, including privilege objections, where the nonparty deponent is a party’s agent; (3) prohibit nonparty reporter’s deposition because Thompson prevents her counsel from asserting the journalist privilege; and (4) authorize the nonparty deponent’s counsel to object to disclosure of confidential, trade-secret information.

Mr. Horowitz advises that “practitioners representing non-party witnesses should check for new decisions before representing their clients at depositions.”  And while Thompson interprets a New York civil procedure rule on pretrial depositions, attorneys in other states should take notice.  Several states permit pretrial evidentiary depositions for some individuals, such as doctors and accountants, in lieu of personal trial attendance.  And when these nonparty deponents bring counsel with them, a court’s adoption of the Thompson decision could prove fatal to privilege objections before they are ever asserted.  Lawyers should certainly “check for new decisions” before representing nonparty witnesses at depositions, but they should first check out Mr. Horowitz’s article.

Thanks to Mr. Horowitz and the New York State Bar Association Journal for permission to republish the article in this post.