Does a Third Party’s Presence Destroy the Attorney-Client Privilege and the Work Product Doctrine Protections?

July 25, 2018

Most privilege and work product cases focus on those two protections’ applicability to documents or communications, or on the waiver effect of disclosing preexisting protected documents to third parties. But some cases focus on a third scenario – the effect on privilege or work product protection of a third party’s presence during otherwise protected communications. One might predict the outcome of these cases – remembering that the attorney-client privilege is very fragile, while the work product doctrine is much more robust.

In United States v. Tirado, 890 F.3d 36, 38 (1st Cir. 2018), the defendant and his lawyer spoke in the courthouse “in the company of [the defendant’s] relations and friends.” The trial court and later the circuit court held that those friendly third parties’ presence meant that “no right to preserve privilege could attach” to the courthouse communications.Id. at 39. One day later, in Firefighters’ Retirement System v. Citco Group Limited, Civ. A. No. 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 79034 (M.D. La. May 10, 2018), defendant sought to discover communications at a meeting attended by bankruptcy liquidation committee members, interested creditors, an accountant, etc. The court found that those friendly third parties’ presence did not destroy the communications’ work product protection, which would evaporate only if their presence “substantially increase[d] the likelihood that the same information would be disclosed to [the adverse] defendants in this action.” Id. at *24.

This stark difference between the fragile attorney-client privilege and the robust work product protection means that work product can survive contemporaneous or later disclosure that would destroy attorney-client privilege protection – such as disclosure to friendly consultants, auditors, public relations firms, etc.