The last two Privilege Points (Part I and Part II) described the Washington Supreme Court’s 5-4 rejection of privilege protection for communications with former corporate employees (Newman v. Highland School Dist., 186 Wash. 2d 769, 381 P.3d 1188 (2016)), and three reasons why the decision should not frighten corporations’ lawyers.
Newman alarmists often miss the fourth and perhaps most important reason why the decision should not cause panic. In the normal context for such communications (when the company is in or anticipates litigation), the work product doctrine usually can provide an entirely separate protection in most courts. That protection should cover lawyers’ and former employees’ notes of their communication, and even their intangible oral conversations. Although fact work product protection can be overcome, that seems unlikely if the former employee is available for the adversary to interview or depose. And focused questions from the corporation’s lawyer might even deserve absolute opinion work product protection. Newman did not address that independently sufficient protection. A 2014 Privilege Point described a federal case in which litigants also inexplicably failed to timely claim work product protection in this context. Winthrop Res. Corp. v. CommScope, Inc., Civ. A. No. 5:11-CV-172, 2014 U.S. Dist. LEXIS 158413 (W.D.N.C. Nov. 7, 2014). All in all, careful lawyers should be able to work around Newman‘s adverse impact.
Ironically, Newman‘s extension of privilege only to current employees might prove a greater threat in a totally different direction. Most courts extend privilege protection to non-employees who are the “functional equivalent” of employees. In this age of outsourcing, the “functional equivalent” doctrine can be critically important. Newman‘s “bright line” privilege approach could threaten this protection.