When former employees turn on their former employer, they sometimes seek access (through discovery) of privileged communications that were in their possession when they worked at the company. At first blush, that might seem like a no-brainer – the documents they seek might have been sitting on their desk. On the other hand, they could access those documents at that earlier time because they were then loyal employees – not adversaries.
In McRae v. Tautachrome, Inc., Case No. 17-1260-EFM-GEB, 2019 U.S. Dist. LEXIS 205151 (D. Kan. Nov. 26, 2019), McRae sued his former employer for allegedly refusing to pay him as it had promised. He sought privileged documents that he "himself either authored or was included in the original communications." Id. at *6. The court noted that a 1999 District of Connecticut case "found any privileged information obtained by the non-party former employee during her employment remained privileged." Id. at *9. But the court agreed instead with a 1992 District of Colorado case (which adopted the Delaware approach) – holding that a former officer was not "precluded by the attorney-client privilege or work product doctrine from inspecting documents generated during [his] tenure." Id. at *8 (alteration in original) (citation omitted). The court understandably cautioned McRae that although he "is entitled to review the documents, this does not mean the communications may be disclosed – it only means McRae is able to receive them." Id. at *11.
Although most states generally follow the same generic privilege principles, they take dramatically different approaches in some areas.