Can Adversaries Ask Corporate Witnesses About Their “State of Mind” When They Sought Legal Advice?

November 20, 2019

The attorney-client privilege protects communications, not facts, past actions or future intended actions. But it can be difficult to draw the line between such non-protected facts or acts and protected motivations, thought processes, etc.

In Horwitt v. Sarroff, No. 3:17-cv-1902 (VAB), 2019 U.S. Dist. LEXIS 148910, at *18 (D. Conn. Aug. 30, 2019), the court bluntly (and properly) held that plaintiff’s lawyer deposing defendant could not inquire whether the defendant had asked his lawyer “particular things.” Although not quite as clearly, the court also held that the privilege protected defendant’s “‘state of mind’ when asking their counsel to do something.” Id.

Although it may be too crude a guideline when subtleties arise, it can be helpful to consider that the privilege generally cannot preclude “who, what, when, where” deposition questions – but generally precludes “why” questions.