Can the Privilege Protect a Deposition Preparation Session with a Former Company Executive?

August 20, 2008

Under the United States Supreme Court’s decision in Upjohn Co. v. United States, 449 U.S. 383 (1981), courts focus on company employees’ knowledge rather than their place in the corporate hierarchy. Because former employees frequently possess knowledge that the company’s lawyers need, most courts protect as privileged a company lawyer’s communications with a former employee about the employee’s tenure at the company.

In Price v. Porter Novelli, Inc., No. 07 Civ. 5869 (PAC), 2008 U.S. Dist. LEXIS 45742 (S.D.N.Y. June 11, 2008), Judge Paul Crotty addressed a nearly six-hour deposition preparation session attended by defendant’s lawyers from Latham & Watkins and defendant’s former human resources vice president. The court rejected plaintiff’s argument that “when the employment relationship ended, the attorney-client relationship ended as well.” Id. at *3. As Judge Crotty explained, the attorney-client privilege protected communications about the former executive’s tenure at Porter Novelli. The judge also noted that plaintiff’s lawyer “fully probed” the former executive’s knowledge about her time at Porter Novelli, and thus was able to “ascertain whether [the former executive] was testifying as to her best recollection of events, or was merely parroting ideas planted in her brain by wily counsel.” Id. at *6.

Lawyers preparing former company executives for testimony should take comfort in the privilege’s application, but avoid discussing anything beyond the witness’s former employment.