Can Clients Refuse to Answer a Question About Whether They Changed a Document After Discussing It With Their Lawyer?

September 28, 2005

With very few exceptions, the attorney-client privilege does not protect such background information as when clients met with their lawyers, when clients (or their lawyers) created documents, etc. However, sometimes these questions call for answers that seem to encroach on the privilege by creating obvious inferences.

In Miles Distributors, Inc. v. Speciality [sic] Construction Brands, Inc., No. 3:04-CV-561 CAN, 2005 U.S. Dist. LEXIS 11061, at *6 (N.D. Ind. June 3, 2005), the defendant refused to answer the question: “[a]fter legal reviewed the letter, were changes made…?” The court ordered the defendant to answer the question, explaining that “[t]his inquiry does not encroach upon the attorney-client privilege because it is not addressing the substance of the communication, but addresses the fact of whether any changes were made.” Id.

Many lawyers’ instincts would have led them to make the wrong call here – and in other situations where background facts seem to reveal the substance of privileged communications.