Can Plaintiffs Seek an Adverse Inference from Defendant Corporations’ Privilege Assertions?

January 27, 2016

The attorney-client privilege benefits society by encouraging clients’ frank disclosure to their lawyers, but it undeniably conceals highly relevant communications. Surprisingly, only a few courts have addressed plaintiffs’ tactics designed to imply that corporate defendants are relying on the privilege to hide important evidence the jury should hear — such as (1) directly arguing that defendants are hiding something, or (2) deliberately posing questions that will draw defendants’ privilege objections.

In yet another decision from the court handling GM’s ignition switch litigation, Judge Furman dealt with this issue. In Fleck v. GM LLC (In re GM LLC Ignition Switch Litigation), the court granted GM’s motion “to preclude any evidence or argument concerning its invocations of the attorney-client privilege (or related protections, such as the work product doctrine), in this litigation or elsewhere.” Nos. 14-MD-2543 (JMF) & 14-CV-8176, 2015 U.S. Dist. LEXIS 163255, at *383 (S.D.N.Y. Dec. 3, 2015). However, the court denied GM’s motion to impose what the court called “a potentially onerous ‘pre-clearance’ requirement with respect to any question ‘likely to seek privileged information or draw a privilege objection.'” Id. at *384 (internal citation omitted). Instead, the court directed that “the parties should use good faith efforts to avoid asking questions of a witness that are likely to draw instruction not to answer on the basis of privilege.” Id. at *385-86.

Corporations which have successfully asserted privilege protection during discovery should be prepared to resist plaintiffs’ possible attempts to make jurors think that the corporations are improperly hiding evidence from them.