Somewhat surprisingly, not many courts have dealt with litigants seeking to imply that an adversary is “hiding something” by asserting the attorney-client privilege. It is not difficult to see the mischief that such a tactic could have before a jury — much like purposely asking questions that cause a witness to plead the Fifth Amendment.
In Roesler v. TIG Insurance Co., No. 05-7055, 2007 U.S. App. LEXIS 24115 (10th Cir. Oct. 12, 2007) (unpublished opinion), plaintiff argued that defendant insurance company’s assertion of the attorney-client privilege demonstrated the company’s bad faith. The Tenth Circuit flatly held that “[a]n insurance company, just as any other individual or entity, has the right to seek confidential legal advice.” Id. at *28. The Tenth Circuit then explained that “the district court erred in allowing Roesler to argue TIG’s retention of its attorney-client privilege was evidence of bad faith.” Id. at *29.
Decisions like this should help buttress the privilege and prevent a company’s adversary from arguing some adverse inference based on the company’s legitimate assertion of its rights.