Court Nixes Privilege Protection for Former Employee Interviews – Is This a Big Deal?: Part II

December 14, 2016

Last week’s Privilege Point described the Washington Supreme Court’s 4-3 rejection of privilege protection for communications with former corporate employees.Newman v. Highland Sch. Dist., No. 90194-5, 2016 Wash. LEXIS 1135 (Wash. Oct. 20, 2016). Although the decision seems to ignore the widely accepted Upjohn analysis, is it a big deal?

The answer is no. First, no court assessing privilege protection has ever treated former employees as if they were current employees. The majority approach to former employee privilege protection is often called the Peraltastandard. Peralta v Cendant, 190 F.R.D. 38 (D. Conn. 1999). Under that standard, the privilege only extends to communications about the former employee’s tenure at the company – it never protects discussions about what happened after the employee left, or the typical type of testimony-preparation give and take that a company lawyer might have with a current employee. So the only privileged communications under the Peralta standard involve mundane open-ended questions about historical facts. Second, corporate lawyers hoping to cinch privilege protection might jointly represent former employees – although that might create conflicts problems. If available, such an arrangement would also preclude an adverse lawyer’s ex parte communications with the former employees. For some reason, the Newman trial court prohibited such joint representations. Third, if a joint representation would not work, the company might hire separate lawyers for the former employees – in which case a common interest agreement might assure privilege protection.

At most, the Newman approach makes privilege protection unavailable for communications most lawyers would not mind disclosing – questioning former employees about what they remembered from their time at the company. And joint representations or common interest agreements might provide alternative ways to protect such communications. Next week’s Privilege Point explains another possible way to protect such communications (which Newman did not even address) – as well as another risk to privilege that no commentator seems to have mentioned.