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…
Lawyers are increasingly meeting individual clients and corporate-client employees in restaurants, coffee shops, and bars. And this phenomenon is not limited to solo practitioners who use the local Starbucks as an office. Firm-based lawyers more often interview a client’s employee or consultant over lunch rather than in their offices. And in-house lawyers discuss confidential information with corporate employees in the company café.
A key component to the corporate attorney–client privilege is that lawyer–client conversations occur in a confidential setting. In a recent Oregon case, a lawyer escaped privilege waiver for a meeting held in a restaurant, but only after having to prove that the tables around him were empty and that no one overhead the conversation. While this was a privilege win, it should give lawyers pause about their client-meeting locations. MacFarlane v. Fivespice, LLC, 2017 WL 1758052 (D. Ore. May 4, 2017). You may read this decision here.
A former server at Café Murrayhill in Beaverton, Oregon filed a retaliation suit against the café. The café’s lawyer met with the executive chef—at the restaurant. Seems reasonable enough, but the meeting occurred in a restaurant booth and not in a private meeting room. More…