Can a Company’s Former President Waive the Company’s Privilege?

February 25, 2004

With an increasing number of corporations becoming adverse to their former top executives, it should come as no surprise that courts have assessed whether former executives can use privileged documents to which they had access during their tenure at the corporation.

In Shaffer v. OhioHealth Corp., 2004 Ohio 63, 2004 Ohio App. LEXIS 15 (Ohio Ct. App. Jan. 8, 2004), OhioHealth’s former president and COO sued the company for wrongful termination under Ohio’s whistleblower statute. The former president claimed that he was fired when he tried to stop OhioHealth’s alleged plans to engage in illegal conduct, as described in a legal opinion he had received. The company moved to strike that portion of his pleading, and for a protective order prohibiting his disclosure of any legal opinions. The trial court denied the motion, but the appellate court reversed. The appellate court ruled that corporate clients own the privilege and that any authority that current executives have to assert or waive the company’s attorney-client privilege ends when their employment ends.

Lawyers for both companies and their executives should be familiar with applicable rules — they may affect the availability of documents during a dispute.