States following the Upjohn privilege standard (rather than the “control group” standard) normally protect communications between a company’s lawyer and a former employee. However, the protection only goes so far.
In Gioe v. AT&T Inc., No. CV 90-4545 (LDW) (AKT), 2010 U.S. Dist. LEXIS 99066 (E.D.N.Y. Sept. 20, 2010), the court applied the general rule – protecting communications about the former employee’s time at the company. The court noted that the privilege did not protect communications “beyond [the former employee’s] activities within the course of her employment with AT&T.” Id. at *7. For example, the court said that the privilege would not protect communications about “‘facts developed during the litigation, such as testimony of other witnesses,’ or any other facts which might ‘influence a witness to confirm or adjust her testimony to such information,’ or ‘how a question should be handled.'” Id.
Although courts might have trouble distinguishing between protected and unprotected communications with former employees, lawyers should keep these limits in mind.