Can You Ever Lose Privilege Protection by Showing Your Own Client a Privileged Document?

July 25, 2007

Although it seems counter-intuitive, a lawyer might lose the attorney-client privilege protecting a document by showing it to her own client in private. Under Federal Rule of Evidence 612, courts can order the production of any document that refreshes a witness’ memory before the witness testifies — if such disclosure is in the “interest of justice.” On its face, Rule 612 does not exempt from this analysis privileged or work product-protected documents.

In In re Rivastigmine Patent Litigation, 486 F. Supp. 2d 241 (S.D.N.Y. 2007), plaintiffs sought production of privileged documents that one defendant’s former executive used to refresh her recollection before her deposition. As the court explained, some decisions indicate that Rule 612 trumps any privilege claim, while other decisions find that the privilege outweighs any attempt under Rule 612 to obtain an adversary’s protected documents. The court ultimately settled on what it called a “functional analysis” — under which the court first analyzes the “‘impact'” of such documents on the witness’ testimony, and then engages in a “balancing test considering such factors as whether production is necessary for fair cross-examination or whether the examining party is simply engaged in a ‘fishing expedition.'” Id. at 243 (citation omitted). After examining the documents in camera, the court concluded that the documents were “unlikely to have influenced [the former executive’s] testimony,” and therefore denied plaintiffs’ motion. Id. at 244. Approximately three weeks later, a federal court in a neighboring state relied on this decision in also applying the “functional analysis” — ultimately reaching the same conclusion in a similar scenario. Calandra v. Sodexho, Inc., No. 3:06CV49 (WWE), 2007 U.S. Dist. LEXIS 31418 (D. Conn. April 27, 2007).

Although many states (such as Virginia) do not have a state corollary to Federal Rule of Evidence 612, lawyers everywhere should familiarize themselves with this dangerous possibility.