Drawing the Line Between Unprotected Logistics About Privileged Communications and Their Protected Content

September 7, 2016

Courts agree that in nearly every situation the attorney-client privilege does not protect the logistics of privileged communications — such as when and where clients and lawyers communicate. Similarly, the privilege normally does not protect clients’ or lawyers’ identities, or the general subject matter of their communications. But of course the privilege can protect such communications’ content.

In Coffey-Garcia v. South Miami Hospital, Inc., No. 3D15-1966, 2016 Fla. App. LEXIS 9575 (Fla. Dist. Ct. App. June 22, 2016), defendant hospital wanted to depose a sick child’s mother, whose lawsuit arguably missed the statute of limitations. The appellate court allowed questions about “the names of attorneys and dates of [the mother’s] consultation[s]” — concluding that “these questions do not require her to disclose any communication she had with any attorney [but] merely require her to disclose the occurrence of a consultation with a lawyer regarding a general topic.” Id. at *7. Nevertheless, the court reversed the trial court order requiring the mother to answer questions about “‘the reasons why she first sought out legal counsel.'”Id. at *9. The court gave an example of an improper question: “‘after consulting the first lawyer, why did you seek out a second lawyer?'” Id. at *10.

Most deposing lawyers know that they cannot explicitly seek the substance of adversaries’ privileged communications. But the issue can sometimes be more subtle in a deposition setting. One simple way to draw the line between appropriate questions about privileged communications’ logistics and improper questions that might invade the privilege is to distinguish between permissible “who, what, when, where” questions and improper “why” questions.