Check Your Privilege

By Brandon M. Thompson

You’re sitting across the table from opposing counsel in a tense deposition. Your adversary is aggressive, and the two of you don’t always get along. Today’s deposition is of a former employee of your client, and opposing counsel is pulling no punches. Then, the question that comes up at every deposition rears its head: “Did you do anything to prepare for your deposition today?” Why yes, the former employee answers, “I met with counsel.” “And what did you discuss?” You throw your arms up and instruct the witness not to answer on the grounds of attorney-client privilege. Opposing counsel asks the witness if she’s going to follow that instruction, and she looks at you, then says “yes,” nervously. Opposing counsel threatens to file a motion to compel.

The question you should be asking yourself is: were you right?

Instructing a witness not to answer is serious. Courts can grant attorneys’ fees for successful motions to compel. And the problem only gets more complicated if the deposition took place out of state. You don’t want to take a second cross-country flight if you’re wrong and opposing counsel successfully re-opens the deposition.

I imagine your reaction to this question is: “Of course I’m right. I represented the witness for the deposition. I’m a lawyer, right? Our conversations were thus privileged.” But I implore you to read on, as we take a closer look at the attorney-client privilege in former employee depositions.

We’ve all had it happen. You’re six months into a case, and you find out a key witness is no longer with the company. You still need that witness’s testimony, so you reach out and hope the person is cooperative. If they are, you meet with them before the deposition and prepare them. Now, I’m not talking about force-feeding testimony or asking someone to lie. I mean explaining the case to the witness what you hope to accomplish in the litigation so the witness understands the context into which their testimony will fall. You’ve laid out the theory of the case to the witness. Maybe you’ve discussed strengths and weaknesses.

So it’s time to ask again: why was the conversation you just had privileged? If you’re like most lawyers, you don’t have a retainer agreement with the witness. But that’s not critical—a witness doesn’t need to sign on the dotted line to create an attorney-client privilege. That’s just one more fact opposing counsel is going to cite in his motion to compel, as he dramatically emphasizes that you don’t even have a retainer agreement.

Turning to the heart of the issue, the attorney-client privilege does not apply to every conversation between a lawyer and client: only conversations for the purposes of seeking or providing legal advice. But what legal advice has the former employee sought from you, or what legal advice did you give her? Sure, if she asks you to explain whether she can refuse to answer a question because it’s irrelevant, you’re giving her legal advice on how depositions work. On the other hand, if you’ve just explained your client’s theory of the case to her, how was that providing legal advice to her? There’s a strong argument that it wasn’t—particularly if the witness was not part of the client’s control group. Preparing a witness to testify to help someone else’s case sure doesn’t sound like legal advice to the witness. Unless the witness asks you “Is there a way I can ethically and truthfully testify that will also benefit my former employer?” then she’s not seeking legal advice on how to help you win your case. Wipe away the assumption that your conversations were privileged, and ask yourself from scratch: did the witness even ask for legal advice? Or did I even provide legal advice? It is difficult to imagine how educating a witness about her former employer’s legal strategy is legal advice for that witness.

I know this position is against conventional wisdom. If you represent someone for the purposes of a deposition, people generally acknowledge that your conversations with the witness are privileged. But I’m not so sure that’s the case. If you’re not providing legal advice to the witness, but rather preparing her to advance only the client’s interests, there’s a common-sense point to be made that your conversations with the witness were not privileged. Put it this way, lawyers have made much more tenuous arguments when trying to scorch the earth. Let this be a word of warning for the next time you sit down with a former employee to get ready for a deposition.