Although it can be difficult to properly analyze privilege and waiver issues in the context of document productions, the fast-paced setting of a deposition creates a far more dangerous setting.
In Abbott Laboratories v. Andrx Pharmaceuticals, Inc., No. 05 C 1490, 2006 U.S. Dist. LEXIS 55647 (N.D. Ill. July 25, 2006), Abbott’s lawyer was deposing a former Abbott employee in a patent case. In an effort to refresh her recollection about whether she had reviewed a draft patent application, Abbott’s lawyer referred to a transmittal letter that had been listed on Abbott’s privilege log (along with its attachment). When the adversary later claimed a waiver, Abbott argued that the transmittal letter did not actually deserve privilege protection. Abbott was forced to concede that it had improperly included the transmittal letter on its privilege log, but it obviously hoped to avoid a subject matter waiver (disclosing a non-privileged document does not cause a waiver, and therefore does not trigger a subject matter waiver. The court found that Abbott’s lawyer had hinted at the substance of the attachment, and therefore triggered a subject matter waiver. Fortunately for Abbott, the judge limited the subject matter waiver to the attachment.
Lawyers should remember that their snap tactical decisions during depositions can have dramatic privilege effects.