Plaintiff Relying on a Former Lawyer’s Testimony Can’t Avoid a Privilege Waiver

June 15, 2022

Most courts hold that a litigant does not automatically waive privilege protection by listing a former lawyer as a witness – because that lawyer might testify about non-privileged facts. But not surprisingly, such a step can have disastrous results if the litigant and her current lawyer do not think ahead.

In Ellis v. Salt Lake City Corp., a wrongful termination plaintiff called her former lawyer as a fact witness to testify that defendant denied plaintiff a reasonable accommodation. Plaintiff argued that her former lawyer "made [plaintiff] aware of [these] opinions in non-confidential ways (e.g., in letters, emails, phone calls and other communications to Defendants)." No. 2:17-cv-00245-JNP-JCB, 2022 U.S. Dist. LEXIS 70036, at *8 (D. Utah Apr. 15, 2022). But plaintiff then resisted discovery of her communications directly with her former lawyer. The court overruled her objection, holding that: (1) if they were privileged, Fed. R. Evid. 502(a) triggered a subject matter waiver covering those other communications, which "must, in fairness, be considered together" with "the disclosed communications" (id. at *13 n.16); or (2) plaintiff placed her former lawyer's advice "at issue" by relying on it to gain an advantage in the litigation; or (3) plaintiff's testimony that "'she believed' that [her former lawyer] 'believed' that the proposed accommodations were unreasonable" could only have come through her direct communications with her [former] lawyer (id. at *23 n.31).

Some courts would essentially give plaintiff an "off ramp" – allowing her to avoid a waiver by withdrawing her reliance on her former lawyer's testimony. Perhaps that is what happened after this unfavorable opinion.

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