Court Denies Privilege Claim for Secret Text Messages

September 30, 2009

The increasing use of e‑mail, text messaging, and other forms of electronic communication have affected many privilege issues. One humorous incident provides a good example.

In Ngai v. Old Navy, Civ. A. No. 07-5653 (KSH) (PS), 2009 U.S. Dist. LEXIS 67117 (D.N.J. July 31, 2009) (unpublished opinion), a personal injury plaintiff’s lawyer conducted a videoconference deposition of an Old Navy employee. The plaintiff’s lawyer was in New Jersey, the witness was in California, and the witness’s defense lawyer was in Michigan. During the videoconference, the witness and her lawyer “were only visible from the ‘chest up.'” Id. at *2 (citation omitted). During the deposition, the plaintiff’s lawyer received a text message from the witness’s lawyer that stated “‘doing fine.'” Id. at *3 (citation omitted). Naturally a bit suspicious, the plaintiff’s lawyer requested that the witness and her lawyer save all of their text messages ‑‑ and eventually discovered that the witness and her lawyer had exchanged five text messages during the deposition. The court ordered disclosure of the text messages ‑‑ pointing to several cases indicating that the privilege did not protect communications between witnesses and lawyers during deposition breaks (let alone during the deposition itself).

This case serves as yet another reminder that the ease of transmitting electronic communications can tempt lawyers to act improperly, result in accidents, and destroy the privilege.