Court Assesses the Dangers oif Waiving the Attorney-Client Privilege During Deposition Testimony

April 11, 2002

The attorney-client privilege does not cover background facts about a client’s discussions with a lawyer, including the general subject discussed – which means that a deponent must disclose this information. On the other hand, a client waives the privilege by revealing the detailed substance of communications between the client and the lawyer. It is not easy to draw the line between these two equally well-settled principles – especially during a fast-paced deposition.

In Kirschner v. Klemons, No. 99 Civ. 4828 (RCC) (DFE), 2001 U.S. Dist. LEXIS 17863, at *9 (S.D.N.Y. Oct. 31, 2001), a party testified during a deposition that he sought a lawyer’s advice, and then described the conversation in some detail. The party’s lawyer objected a few times on the basis of privilege, but did not stop the testimony. The Court ruled that the party’s testimony had waived the attorney-client privilege, contrasting his disclosure with the required general statements about meeting with a lawyer – noting that the latter type of testimony does “not sufficiently reveal the substance of his communications … so as to effectuate a waiver.”

Given the risk of waiver, lawyers making quick privilege calls during a deposition would be wise to take a fairly conservative approach.