Plaintiff’s Live-In Boyfriend was Outside Privilege Protection, but Inside Work Product Protection: Part I

November 23, 2016

Nearly every court finds that the only client agents/consultants inside privilege protection are those necessary for the communications between the client and her lawyer. But the work product doctrine casts a wider protective net.

In Harrington v. Bergen County, A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727 (D.N.J. Sept. 13, 2016), a civil rights plaintiff suing her former employer claimed that her live-in boyfriend was inside privilege protection – so that his presence during her communications with her lawyer did not destroy the privilege. The court acknowledged that plaintiff had been involuntarily committed to a mental hospital at the pertinent time, and that her boyfriend “has provided meaningful assistance” to her. Id. at *11. But the court was “not convinced that disclosure to [her boyfriend] was necessary or essential for Plaintiff to obtain informed legal advice.” Id. The court noted that the “Plaintiff offers no medical or other expert opinion” about her inability to communicate with her lawyer without her boyfriend present. Id. at *11-12. The court stripped away privilege protection from communications in her boyfriend’s presence, or later shared with her boyfriend.

Most clients (both individual and corporate) do not appreciate the miniscule range for their agents/consultants to be within privilege protection. Next week’s Privilege Point will address the court’s work product analysis.