Because numerous decisions have found that a party waives the attorney-client privilege by not properly objecting to deposition questions that would disclose privileged communications, those defending depositions obviously face the temptation to over-do privilege assertions. Unfortunately, lawyers taking this easy approach risk other adverse consequences.
In Arthrocare Corp. v. Smith & Nephew, Inc., 310 F. Supp. 2d 638 (D. Del. 2004), the lawyer for defendant (accused of patent infringement) instructed a witness not to respond to deposition questions about certain topics in a deposition taken just one week before trial. When the lawyer asked that witness questions about those topics at the trial, the court prohibited any answers. The court labeled as “improper gamesmanship” the overly broad privilege assertions at the deposition – and restricted witnesses’ testimony to the topic that the defendant’s lawyer allowed. Id. at 668.
Given this risk of losing the ability to present evidence on key topics (resulting from an over-broad privilege claim during discovery) and the risk of causing a subject matter waiver of the privilege (by not objecting enough), lawyers defending depositions must try to “thread the needle” each time.