Corporations can expressly waive their privilege when responsible loyal employees disclose privileged communications, and they can impliedly waive their privilege by relying on a lawyer’s advice to gain some advantage in litigation. When either one of those occurs, what can a corporation do to avoid the consequences?
In Airhawk International, LLC v. Ontel Products Corp., defendant’s Vice President of Product Strategy and Business Development testified at a trademark case deposition that “legal counsel ‘clear[ed] the name for us.'” Case No. 18-cv-0073-MMA-AGS, 2019 U.S. Dist. LEXIS 122675, at *2 (S.D. Cal. July 23, 2019) (alteration in original). The court found that the deposition testimony could result in an implied waiver and “may also support a claim for express waiver.” Id. at *7. But the court then assured defendant that it “may preserve the confidentiality of its communications by abandoning the basis for the implied waiver.” Id. at *9. If so, defendant would have to “file a stipulation that: (1) it will not use attorney-client communications in any way before the Court . . . and (2) it will ensure that its witnesses are instructed about this stipulation, to ensure that they do not inadvertently disclose such attorney-client communications.” Id.
Corporations should welcome the chance some courts give them to avoid the consequences of obvious express waivers or apparent implied waivers.