Alicia Curran | DRI
The attorney-client privilege is the oldest of the common law privileges for withholding confidential communications recognized in American jurisprudence. It allows a person to seek legal advice and representation without suffering detrimental consequences, fostering full and frank communication between lawyers and their clients by protecting their confidential communications. Upjohn Co. v. United States, 449 US 383, 389 (1981).
The leading case regarding the application of the attorney-client privilege in the context of a corporate client is Upjohn. In Upjohn, the Supreme Court explained the rationale for the privilege:
Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client…. Admittedly complications in the application of the privilege arise when the client is a corporation… but this Court has assumed that the privilege applies when the client is a corporation…
Upjohn, 449 US at 389-90. Upjohn also emphasized the link between the purpose of the privilege and the need for certainty in its application:
[I]f the purpose of the attorney-client privilege is to be served, the attorney and the client must be able to predict with some degree of certainty whether particular discussions will be protected.
449 US at 393.
The attorney-client privilege is often described as communications between a client and attorney that facilitate the rendition of professional legal services. US v. Rakes, 136 F.3d 1, 3 (1st Cir. 1998). However, particularly with corporations, this bedrock privilege is sometimes easier said than applied. And, we note for those of you with claims and cases in the European Union, many of those countries only recognize a limited privilege, if any, for in-house counsel. Linda A. Thompson, ‘We Can’t Do Our Job’: The Fight for In-House Counsel in Europe, 270 N.Y.L.J., Sept. 21, 2023, at 5, 7.
In this article, we will discuss trends and challenges pertaining to maintaining privilege with communications involving in-house counsel given the scope of testimony required of a Rule 30(b)(6) witness, and some benefits and pitfalls in designating in-house counsel as the company’s corporate representative.
General Rules on Allowable Discovery
Most courts permit inquiry into the facts on which a claim, defense, allegation, or denial is based. See, e.g., Dennis v. US, No. 3:16-cv-3148-G-BN, 2017 WL 4778708, at *9 (N.D. Tex. Oct. 23, 2017) (explaining that the factual basis of a denial sought in contention interrogatories is not protected work product, and that “[t]he same analysis applies to a Rule 30(b)(6) deposition topic seeking the identification of facts”); Radian Asset Assurance, Inc. v. College of Christian Bros. of N.M., 273 F.R.D. 689, 692 (D.N.M. 2011) (allowing “parties to craft rule 30(b)(6) inquiries similar to content interrogatories”); Yerkes v. Weiss, No. 17-cv-2493, 2019 WL 12056384, at *6 (D.N.J. Sept. 30, 2019) (“A party may make inquiries similar to contention interrogatories at a 30(b)(6) deposition.”).
“A party invoking the attorney-client privilege must show (1) a communication between client and counsel that (2) was intended to be and was in fact kept confidential, and (3) was made for the purpose of obtaining or providing legal advice.” Certain Underwriters at Lloyd’s v. Nat’l R.R. Passenger Corp., No. 14-CV-4717 (FB), 2017 WL 1232526, at *3 (E.D.N.Y. Feb. 17, 2017) (citing In re County of Erie, 473 F.3d 413, 419 (2d Cir. 2007)); United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996); see Fisher v. United States, 425 US 391, 403 (1976). The burden of establishing the applicability of the privilege and all of its elements rests with the party claiming protection. Id. “Any ambiguities as to whether the essential elements have been met are construed against the party asserting the privilege.” Id. (citing Koumoulis v. Indep. Fin. Mktg. Grp., Inc., 295 F.R.D. 28, 38 (E.D.N.Y. 2013), aff’d, 29 F.Supp.3d 142 (E.D.N.Y. 2014)). “Where there are several possible interpretations of a document based upon the surrounding circumstances, the party asserting the privilege must produce evidence sufficient to satisfy a court that legal, not business, advice is being sought.” Urban Box Office Network, Inc. v. Interfase Managers, L.P., No. 01 Civ. 8854(LTS)(THK), 2006 WL 1004472, at *6 (S.D.N.Y. Apr. 18, 2006).
Previously, some courts limited the use of Rule 30(b)(6) witnesses to develop a plaintiff’s inquiry into the basis for a denial in the complaint. Fox v. Amazon.com, Inc., No. 3:16-cv-3013, 2017 WL 9476870 (M.D. Tenn. Sept. 21, 2017) (holding that while “the factual basis for a denial in the complaint is discoverable,” a Rule 30(b)(6) deposition is not “the appropriate means for obtaining the requested information,” and explaining that people deposed on an individual basis can be asked what information they possess that would support a denial of an allegation); see also In re Indep. Serv. Orgs. Antitrust Litig., 168 F.R.D. 651, 654 (D. Kan. 1996) (finding “serious privilege concerns” where a party seeks to discover through a Rule 30(b)(6) deposition the facts upon which the opposing party will rely for its defenses). However, this appears to be a rule from which courts are receding. See Funk v. Pinnacle Health Facilities XXXII, LP, No. 17-1099, 2019 WL 858718 (D. Kan. Feb. 22, 2019) (receding from In re Indep. Serv. Orgs. and permitting party to question Rule 30(b)(6) witness about factual contentions).
Thus, courts are likely to permit inquiry into all underlying facts, even though they may still preclude inquiry into legal theories and conclusions. See, e.g., Firefighters’ Ret. Sys. v. Citco Grp. Ltd., No. 13-373, 2018 WL 5993471, at *2 (M.D. La. Nov. 14, 2018) (explaining that questions of what circumstances may give rise to a conflict of interest are arguably legal questions and are therefore improper to ask a lay witness). For example, in ANZ Advanced Technologies, LLC v. Bush Hog, LLC, No. 09-00228, 2010 WL 11575130, at *6 (S.D. Ala. Mar. 5, 2010), the court concluded that several of the plaintiff’s 30(b)(6) topics improperly sought legal conclusions, such as “The legitimacy or lack thereof of any claim by Plaintiffs of breach of contract, fraud or suppression by [Defendant] alleged by Plaintiffs in this lawsuit”; “Reasons for [Defendants] disputing any damage claims by [Plaintiffs] in this lawsuit”; and “Any contention that [Defendants] is (are) owed money by [Plaintiffs].” But see QBE Ins. Corp. v. Jorda Enters., Inc., 277 F.R.D. 676, 689 (S.D. Fla. 2012) (explaining that a Rule 30(b)(6) witness “must also testify about the corporation’s position, beliefs and opinions”). Courts have recognized the difficulties in having a lay witness testify regarding legal conclusions, but also impose some obligation on a Rule 30(b)(6) witness to take a position for the party. To the extent there is some debate about whether a question is one of fact or one of law, the courts appear likely to err on the side of permitting discovery and determining its admissibility as evidence at a later time.
It is against this backdrop that we discuss the use of the in-house counsel as a Rule 30(b)(6) witness or corporate representative for depositions and responding to verified written discovery. And do not forget that in a diversity case, the federal court will apply the rules of the law of the state that govern claims of attorney-client privilege, and not federal rules. Total Rx Care, LLC v. Great N. Ins. Co., 318 F.R.D. 587, 595 (N.D. Tex. 2017).
Beware of the Dual Role of In-House Counsel
Distinguishing Legal Advice from Ordinary Business Communications
Many in-house attorneys wear multiple hats, sometimes providing legal advice, and at other times providing business advice or working in a strategic or claims-handling capacity. The attorney-client privilege, however, typically does not attach to communications made by or to an in-house attorney when that attorney is not acting in a legal capacity. See Bankers Ins. Co. v. Fla. Dep’t of Ins. & Treasurer, 755 So. 2d 729, 730 (Fla. 1st DCA 2000) (finding no evidence communications with an insurer’s secretary and general counsel were sent to him in his professional capacity as general counsel). If the attorney is giving directions (do this or do not do that), as opposed to advice (these are your options or alternatives and their legal effect), the attorney is likely engaging in non-privileged business activity as opposed to giving privileged legal advice. Practically, this means that correspondence that is not otherwise privileged would not become privileged just because an attorney is copied on the non-legal communication, or even if an attorney is actively participating in the non-legal communication. In fact, one of the first aspects of the communication that courts will consider is whether the sender/recipient is an attorney conveying or participating in the rendition of legal advice or merely someone who was copied.
“When an attorney is consulted in a capacity other than as a lawyer, as (for example) a policy advisor, media expert, business consultant, banker, referee or friend, that consultation is not privileged.” In re County of Erie, 473 F.3d 413, 421–22 (citing In re Lindsey, 148 F.3d 1100, 1106 (D.C.Cir.1998)). The privilege is “triggered only” by a request for legal advice, not business advice. In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1037 (2d Cir.1984); Elliott Assoc. LP v. Republic of Peru, 176 F.R.D. 93, 97 (S.D.N.Y.1997) (finding that the communication is not cloaked if the lawyer is hired for business or personal advice); Fine v. Facet Aerospace Products Co., 133 F.R.D. 439, 444 (S.D.N.Y.1990) (privilege not extended to management advice). If the communication between client and lawyer “is not designed to meet problems which can fairly be characterized as predominately legal, the privilege does not apply.” Rattner v. Netburn, 1989 WL 223059, at * 6; In re County Erie, 473 F.3d 413, 419–22 (ruling that the predominant purpose of the advice is to solicit or gain legal advice); United States Postal Serv. v. Phelps Dodge Refining Corp., 852 F.Supp. 156, 160 (E.D.N.Y.1994) (“The Communication must be made to the attorney acting in her capacity as counsel.”). In this framework, if a business decision can be viewed as both business and legal evaluations, “the business aspects of the decision are not protected simply because legal considerations are also involved.” Hardy v. New York News, Inc., 114 F.R.D. 633, 643–44 (S.D.N.Y.1987).
Many courts will often apply a “predominant purpose” test, meaning that the “attorney-client privilege applies only if the primary or predominant purpose of the attorney-client consultation is to seek legal advice or assistance.” In re Polaris, Inc., 967 N.W.2d 397, 407 (Minn. 2021) (emphasis and quotation marks removed). The aim of the predominant purpose test is to “ensure that clients do not hide business and operational communications behind the veil of privilege, while still protecting the portions of the report that contain legal advice.” Id. at 408. **
Distinguishing legal advice from business advice, however, can be difficult. In Admins. Of Tulane Educ. Fund v. Illinois Union Ins. Co., No. 21-820, 2022 WL 19403697, at *3 (ED La. Sept. 30, 2022), the parties disputed whether the attorney-client privilege attached to emails exchanged between an insurance underwriter and in-house counsel regarding the drafting of a policy endorsement. The attorney asked some questions about changes being made by the underwriter and why, and sent back some changes in redline. Id. Several other non-attorneys were also copied on the communication. Id. The court found that there was no indication that the in-house counsel was consulted for legal advice, and that his involvement could equally have been for an underwriting, i.e., normal business, purpose. Id. Similarly, a Texas court held that the trial court did not abuse its discretion in determining that in conducting an examination under oath, the attorney retained by the insurance company was acting as an investigator and was conducting a routine investigation of a fire of suspicious origin because the attorney-client privilege does not extend to the disclosure of underlying facts, but merely to the disclosure of attorney-client communications. In re Tex. Farmers Ins. Exch., 990 S.W.2d 337, 341 (Tex. App.—Texarkana 1999, no pet.), citing Upjohn Co., 449 US at 383.
A good example of the tension involved in using an attorney to assist in developing facts in conjunction with legal advice is Cedell. Cedell v. Farmers Ins. Co.of Wash., 295 P.3d 239 (2013). While involving outside counsel, it may be even more instructive for use by in-house counsel. The State of Washington’s Supreme Court observed in Cedell that the “purpose of the attorney-client privilege is to allow clients to fully inform their attorneys of all relevant facts without fear of consequent disclosure,” but also that an insurance company has a “quasi-fiduciary” duty to its insured, meaning that it must adjust a claim objectively giving equal weight to the insured’s interests and its own. 176 Wn.2d at 698. The problem faced in Cedell was that although an insurance company—like any other litigant—is entitled to obtain privileged advice regarding its own liability, the company might use the privilege to “outsource” ordinary factual adjustment and valuation activities to the attorney, and then use the privilege to shield those “quasi-fiduciary” tasks from discovery by the insured. Cedell attempted to resolve this tension by adopting the following analysis. When an attorney participates in the “claims adjusting process,” it is presumed that communications with that attorney are not privileged. Id. at 699. “However, the insurer may overcome the presumption of discoverability by showing its attorney was not engaged in the quasi-fiduciary tasks of investigating and evaluating or processing the claim, but instead in providing the insurer with counsel as to its own potential liability; for example, whether or not coverage exists under the law.” Id. As further explained by this court, “to the extent that an attorney acts as a claims adjuster, claims process supervisor, or claims investigation monitor, and not as a legal advisor, the attorney-client privilege does not apply.” Lear v. IDS Prop. Causualty Ins. Co., C14-1040RAJ, 2016 WL 3033499, at *2 (W.D. Wash. May 27, 2016). “The public policy reason behind this conclusion is that insurance companies should not be permitted to insulate the factual findings of a claims investigation by the involvement of an attorney to perform, or help perform, such work.” Id. at *10–11. Cedell suggested that when an attorney acts both in the role of claims adjuster and coverage counsel, the carrier may obviate the need to parse the file by splitting the file between these two roles. Id. at n.5.
In Cedell itself, the insurer asserted that its outside counsel was hired to provide “legal opinions” regarding whether the insured was entitled to coverage under the policy. Id. at 701. The Washington Supreme Court agreed that, to the extent that was the case, the communications were indeed privileged. Id. The problem, however, was that the attorney—in addition to advising regarding “law and strategy”—also investigated the facts surround the claim, negotiated with the insured regarding value of the claim, and generally was involved in adjusting the value of the claim. Id. The court noted that the insurer may have nonetheless been able to overcome the presumption of disclosure by showing that the withheld communications were all made pursuant to the attorney’s privileged role as coverage counsel. Id. But since the underlying court had not reviewed the documents under the above analytical framework, the court remanded the case so that the trial court could conduct an in camera review of each document to determine whether it reflected legal advice or strategy (in which case it was privileged) or whether it involved “quasi-fiduciary” adjustment activities (in which case disclosure was required). Id.
In adopting the presumption that the time-honored attorney-client privilege does not apply to one particular type of commercial dispute, Cedell is an outlier case, perhaps unique in the entire country. See Ingenco Holdings, LLC v. Ace Am. Ins. Co., C13-543RAJ, 2014 WL 6908512, at *4 (W.D. Wash. Dec. 8, 2014) (noting that the court was “aware of no state other than Washington that has declared the attorney-client privilege presumptively inapplicable in a bad faith claim from a first-party insured”). But even Cedell confirmed that when an insurer shows the attorney was actually providing legal advice to the insurer regarding its own liability—including whether the claim is covered—the communication remains privileged. See also, William F. Knowles and Jonathan Toren, Washington Supreme Court: Corporate Attorney’s Communications with Former Employees Not Privileged (October 21, 2016).
In contrast, some courts will consider the engagement of outside counsel as a factor that supports a finding of privilege. See Ranger Constr. Indus., Inc. v. Allied World Nat’l Assurance Co., No. 17-81226-civ, 2019 WL 4365555, at *6 (S.D. Fla. Feb. 4, 2019) (“In this case, [the law firm] was not in-house counsel, but rather was outside coverage counsel for Defendant. [The firm] was not acting as a conduit, claims investigator, or claims handler. [The firm] was providing legal advice and legal services to Defendant in its capacity as outside coverage counsel.”).
Where documents are “created and sent from in house counsel… to convey specific legal advice on document preservation” in the litigation at hand, the privilege likely is preserved. Bhattacharya v. Murray, No. 3:19-CV-00054, 2022 WL 1510550, at *6 (W.D. Va. May 12, 2022), appeal denied, 2022 WL 2873176 (W.D. Va. July 21, 2022) (citing Proa v. NRT Mid-Atl., Inc., Civ. No. AMD-05-2157, 2008 WL 11363286, at *27 (D. Md. June 20, 2008)) (concluding that “litigation hold” notices prepared by defendant’s in-house counsel and sent to defendant’s employees “convey[ing] specific legal advice on document preservation” in underlying litigation were protected by both attorney-client privilege and attorney work-product doctrine); cf. Thomas v. Cricket Wireless, LLC, No. 19-cv-07270, 2021 WL 1017114, at *4–5 (N.D. Cal. Mar. 16, 2021) (granting plaintiff’s motion to compel production of defendant’s litigation hold notices only after defendant’s Rule 30(b)(6) designee violated prior court order directing her to testify to the “basic details surrounding” the notices, including “when and to whom [they] were given,” “what kinds and categories of information and data [defendant’s] employees were instructed to preserve and collect,” and “what specific actions they were instructed to take to that end”).
Best Practices for Communicating with Counsel
When working with in-house counsel, it is important that the communications reflect that in-house counsel is involved for the purpose of providing legal advice. Considering a situation like in Tulane Educational Fund, the outcome might have been different if the in-house counsel went a step further and advised of the legal reasons for revising the policy endorsement or the legal impact of those revisions. And using the premise of In re Tex. Farmers Ins. Exch. examination under oath as an example, if the claims professional initiated the investigation into the facts giving rise to the claim, the factual results of the investigation would not be privileged, but any legal advice by the in-house counsel on the impact of the investigation and recommended course of action might be privileged.
The lesson is, make it easy for the court to conclude that your communications are being made for the purpose of soliciting or providing legal advice: Examples for setting the proper stage for what you are seeking, include:
- “Could you please give me a legal opinion about ….”
- “Please provide your legal analysis and opinion at your earliest convenience.”
- “I reviewed your request for legal advice and offer the following comments.”
Please also keep in mind that attorneys are advisors. Where the attorney is a decisionmaker, it will be more difficult to show that the communication was made for the purpose of providing legal advice. For example, a non-attorney might say “remove the last sentence from this exclusion,” whereas an attorney should say “I recommend you remove the last sentence from this exclusion.” In addition to making recommendations, attorneys often make their recommendations in a more formal manner, such as in a memo on letterhead. Putting legal advice in a memo has the added benefit of making it easier to flag for privilege.
Also, consider that courts are more willing to find communications with outside counsel are privileged. If in Tulane Educational Fund an outside counsel had reviewed the proposed endorsement and offered an opinion as to the language used as opposed to an underwriter or in-house counsel, the court may have been more likely to find that the communication constituted legal advice and was not a mere business communication. This same rationale applies to other functions, such as drafting reservation of rights letters. Attorneys write for a living, so they can be a great source to turn to for well-written correspondence. However, when in-house counsel drafts, rather than revises, a letter, there is a higher likelihood that a court will find it to be an ordinary business function, absent some particular legal issue within the letter. A court still might find a letter drafted by outside counsel not privileged for the same reasons, but that extra step of seeking outside counsel for recommendations as to how a coverage issue should be communicated lends support to a finding of privilege.
And note, that by including parties in a communication – be particularly careful of extensive email threads – who are not adding facts or the needed information for the provision of legal advice or they do not need to receive the legal advice to take action, the sender of the communication might inadvertently waive privilege. This can be particularly applicable when communicating via email. It can also happen when you include an insured’s broker or agent in the communication – don’t forget that under principle/agency law, the broker or insurance agent is usually the agent of the insured. Therefore, if you are trying to preserve a communication as privileged through the attorney-client privilege, including the insurance broker or agent likely waives that privilege. This becomes even more of a challenge and reason for careful scrutiny when communications include a Managing General Agent or a Third Party Administrator who has dual roles – one for the insured and one for the insurance company. The take-away for this is: Limit recipients of communication intended to be privileged to only those with a need to know, whether the recipients are within the insurance company or business entity or otherwise and know the roles of the persons with whom you are communicating.
One other area of privilege that you should consider and not leave to addressing when there is a post-judgment extra-contractual lawsuit, is communications with defense counsel. The claims professional obviously will have many communications with the insured and the insured’s defense counsel who is usually appointed by the insurance company and on the insurance company’s approved panel of law firms. But do not forget, defense counsel is the insured’s legal counsel – not the insurance company’s. A privilege is “owned” by the person or entity who is receiving the legal services. Therefore, in a lawsuit involving breach of the insurance contract or extra-contractual issues, the privileges as between the insured and defense counsel are the insured’s to waive – not the insurance company’s.
For example, Texas recognizes the Stowers doctrine which doctrine generally stands for the principle that a liability insurer that undertakes the defense of an insured has a duty to act reasonably in settling a liability claim. It is named for a seminal Texas case, G. A. Stowers Furniture Co. v. American Indem. Co., 15 S.W.2d 544 (Tex. Comm’n App. 1929). The elements of a valid Stowers demand include: (1) at the time the offer is made, the amount sought against the insured must be within the scope of coverage; (2) the amount demanded must be within the insured’s policy limits; and (3) the terms of the demand must be such that an ordinary prudent insurer would accept it, considering the likelihood and degree of the insured’s potential exposure to an excess judgment. American Physicians Insurance Exchange v. Garcia, 876 S.W.2d 842, 849 (Tex. 1994). When the elements of Stowers are satisfied and the insurer’s negligent failure to settle results in an excess judgment against the insured, the insurer is liable under the Stowers doctrine for the entire amount of the judgment, including that part exceeding the insured’s policy limits. Given the third element of Stowers regarding “the terms of the demand” and “the insured’s potential exposure to an excess judgement,” the claims professional is going to require information from the defense counsel. If there is a trial which results in a judgment in excess of your policy limits, then the insured and any excess insurance carrier could bring a Stowers lawsuit seeking recovery from you for the amount of the excess judgment. In doing so, the claim evaluations and communications from defense counsel are likely discoverable. You have to have these communications to evaluate risk exposure for your insured, but be careful not to supplant your duty to evaluate the risk with defense counsel’s recommendations and own observations. Advice of counsel is not an absolute shield.
Nonetheless, even if you take every proactive step to protect communications that you would like to be privileged, a court might one day decide that those communications have to be disclosed. Sometimes documents that were once privileged in the breach of contract underlying case have to be disclosed in the bad faith or fraud case. So, not only should your communications be clear and where possible concise, you should avoid writing anything that might be interpreted as a misrepresentation or unprofessional. No communication should contain unethical or illegal information. Even if a communication is ultimately deemed privileged is not a license to say anything and while a juror or your adversary may not read or see the communication, others in your company, the company’s attorneys, your own attorney – should that be required, and even a judge may see the communication and that review will leave an image that is not necessarily easy to overcome.
- Consequences of Improper Use of Counsel to Shield Communications
Google is the defendant in multidistrict litigation pertaining to alleged anticompetitive practices in connection with Google Play Store. See In re Google Play Store Antitrust Litig., 664 F. Supp. 3d 981 (N.D. Cal. 2023). In discovery, the plaintiffs asked Google about a curious lack of Google Chat messages in its document productions. In response, Google advised that its Google Chats are typically deleted automatically after 24 hours, and that Google did not suspend the auto-deletion even after the litigation began. These revelations led to the court finding that Google failed to take reasonable steps to preserve electronically stored information that should have been preserved, and that Google “intended to subvert the discovery process” by depriving the opposing parties of the use of the Chat evidence in the litigation. Id. at 993.
Despite Google having failed to preserve its Chats, some Chats were preserved and eventually produced. In two of those Chats, a Google in-house counsel discussed emails in which she was “looped [in] for fake privilege.” Epic Games, Inc. v. Google, LLC, No. 3:20-5671 (N.D. Cal.), Trial Exhibits 6487, 6488. The court found that Google’s use of “fake privilege” was “part and parcel of [Google’s] chat policy of intentionally not preserving or suppressing relevant evidence.” Epic Games, Inc., No. 3:20-5671 (10/19/2023 Hr’g Tr. 27:5-7). Then once the Epic Games trial exhibits became public record, the plaintiffs in United State of America, et al. v. Google LLC¸ Case No. 1:20-cv-03010-APM (D.D.C.), asked the court to take judicial notice of those exhibits in furtherance of adjudicating their claims regarding Google’s use of privilege in its internal communications.
Because of Google’s efforts to inappropriately shield documents with privilege, discovery sanctions and adverse inferences became major components of litigation that was already complicated and costly. Once those issues came to light in one lawsuit, they became issues in a separate, but similar lawsuit. It is yet to be seen just how severe and far reaching the consequences of these “fake privilege” disclosures will be.
Designating In-House Counsel as a Corporate Representative
It can be tempting to designate an attorney as a representative for a Rule 30(b)(6) deposition or even as a corporate representative to verify written discovery. Attorneys often have experience in listening carefully to the questions being asked, and giving clear, considered responses. But it can be a double-edged sword—while the in-house counsel may be experienced with depositions and discovery, they may also possess privileged information that the company does not wish to disclose. In those instances, the in-house counsel deponent must be careful to testify only to facts, and not to privileged communications, legal advice about the effect of those facts, from which he or she might have learned the facts. See Corcoran v. CVS Health, No. 15-cv-03504, 2016 WL 11565649, at *6 (N.D. Cal. Dec. 9, 2016). The witness must actually testify to the facts without using the attorney-client privilege as a barrier to discovery. Id. at *2 (explaining that the attorney-witness cannot “effectively frustrate or impede the deposition under the banner of privilege” and instead must answer any deposition question a non-attorney designee would answer).
Conclusion
Companies should carefully consider the roles their in-house attorneys play within the company and during the litigation process. While privilege issues cannot always be avoided, with adequate forethought and witness preparation—even for attorneys serving as deposition witnesses—the risk of waiving the attorney-client privilege can be greatly reduced.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.