Court Assesses Implications of Privileged Communications’ Inclusion in Employees’ Personnel Files

September 19, 2018

Attorney-client privilege protection normally evaporates when the client abandons its confidentiality expectation.  Under this basic principle, does placing privileged communications in an employee’s personnel file forfeit privilege protection?

In Martin v. Copeland, , a terminated employee argued that her former employer “waived any possible claim to attorney-client privilege when [it] placed the attorney communications into Plaintiff’s personnel file.”  Cause No. 2:16-CV-59-JVB-JEM, 2018 U.S. Dist. LEXIS 111756, at *4 (N.D. Ind. July 5, 2018).  The court rejected plaintiff’s argument, noting that “[i]t is uncontested that Plaintiff never received a copy of the omitted communications; thus, no waiver of the attorney-client privilege occurred.” Id.  The obvious implication is that plaintiff’s review of the file might have destroyed the company’s privilege.

It is unclear whether plaintiff could have (but did not) access her personnel file while employed.  If so, defendant’s argument would be more difficult.  But most courts would still allow companies to withhold privileged documents that employees never saw.