What Degree of Disclosure at a Deposition Waives the Privilege?

February 20, 2008

The attorney-client privilege generally does not protect either the fact of, or the general subject matter of, communications between clients and their lawyers. For this reason, disclosing such information does not waive any privilege. In contrast, disclosing the substance of a privileged communication nearly always waives the privilege.

Courts frequently deal with this distinction in the context of fast-paced deposition testimony. In Quiksilver, Inc. v. Kymsta Corp., Case No. CV 02-5497-VBF (RCx), 2007 U.S. Dist. LEXIS 92905 (C.D. Cal. Dec. 18, 2007), plaintiff’s CEO testified in a trademark litigation deposition about the reason his company decided to register one phrase rather than another phrase. After being warned by his lawyer not to disclose confidential communications, the president explained that “[t]here’s always a legal strategy” and “I know a lot of stuff goes on behind closed doors about the legal strategy” — “so at the time I think it was advised by this group of legal counsel to use Quiksilver/Roxy in some cases alone, and Quiksilver/Roxy in other cases, double the logo Quicksilver/Roxy in other cases to get in the various classifications as a legal strategy, so that’s why on this one it’s Quicksilver/Roxy.” Id. at *10, *11. The defendant argued that plaintiff’s president had waived the privilege, but the court disagreed. As the court explained it, the president “did not reveal the substance of any attorney-client communications in his deposition answer, but simply noted that, as part of a broader discussion of the commercial strategy for marketing the Roxy line, he received legal advice regarding the Roxy brand.” Id. at *13.

It can be very difficult during depositions to avoid crossing the line from non-privileged facts about a communication into the privileged substance of that communication. Fortunately, courts often take a fairly forgiving view.