Court Relies on the Privilege to Strike Part of a Plaintiff’s Complaint

February 27, 2008

Courts have wrestled with the privilege implications of plaintiff employees basing their claims against their employers on communications that deserve privilege protection. Although public policy might justify some disclosure in those circumstances, plaintiff employees should not be allowed to gratuitously disclose privileged communications to gain some leverage or to embarrass their employer.

In Long v. Howmedica Osteonics Corp., Civ. A. No. 07-3005 SECTION “T” (1), 2007 U.S. Dist. LEXIS 93261 (E.D. La. Dec. 18, 2007), plaintiff sued his former employer for wrongful termination. Among other things, plaintiff claimed that the company retaliated against him because he had supported another employee who had sued the company several years earlier in a gender discrimination case. Plaintiff’s complaint recited some communications he had with the company’s in‑house lawyer at that earlier time. The company moved to strike those paragraphs, and the court agreed. The court rejected plaintiff’s claim that he had “no other way to show that discrimination and retaliation other than by disclosing the communications.” Id. at *5. In addition to striking the paragraphs, the court held that because the plaintiff could not waive the company’s privilege, “[n]o waiver has occurred; therefore, the privilege remains in tact [sic].” Id. at *11.

The court would have had a more difficult time if plaintiff had merely disclosed the privileged communications to his own lawyer, but had no trouble removing the improperly disclosed privileged communications from the public record. The court’s ruling also demonstrates that not every disclosure of privileged communications results in a waiver ‑‑ the privilege survives an unauthorized disclosure.