In most states, communications between a corporation’s lawyer and either a current or former corporate employee deserve protection under the attorney-client privilege (as long as the employee knows the purpose for the communication, possesses information that the lawyer requires, and maintains the confidentiality of the communication). However, courts disagree about whether the same standards apply to a corporation’s independent contractors.
In Miramar Construction Co. v. Home Depot, Inc., 167 F. Supp. 2d 182 (D.P.R. 2001), the court found that the attorney-client privilege protected communications between Home Depot’s lawyer and a former Home Depot employee, but not communications between the lawyer and a former Home Depot independent contractor. The court rejected Home Depot’s analogy of the independent contractor to an employee.
As companies increasingly out-source various functions, company lawyers must familiarize themselves with the limitations of the attorney-client privilege as applied to independent contractors.