Can Withholding Privileged Communications Support an “Adverse Inference”?

June 17, 2020

The attorney-client privilege rests on a grand societal purpose — encouraging clients to safely share with their lawyers all the pertinent facts, so lawyers can guide them in a lawful direction.  This is the same societal purpose underlying lawyers’ confidentiality duty.

In Baldassarre v. Norfolk Southern Railway, No. 2:18-cv-598, 2020 U.S. Dist. LEXIS 29540 (E.D. Va. Feb. 19, 2020), plaintiff claimed that defendant failed to accommodate his PTSD.  In response to defendant’s summary judgment motion, “Plaintiff moves this Court to draw a negative inference in his favor because Defendant’s invocation of privilege as to certain e-mail messages.”  Id. at *11.  The court bluntly rejected plaintiff’s motion — noting that “[a]lthough courts in this Circuit draw negative inferences for invoking certain privileges in civil cases, . . . the Fourth Circuit has specifically rejected such inferences due to the invocation of attorney-client privilege.”  Id. at *11-12.

Sneaky litigants sometimes try to trigger an informal “adverse inference” by knowingly posing objectionable question so the jury will hear a privilege objection.  Lawyers should look ahead if they worry about such a strategy, and seek the court’s warning that the adversary must refrain from that tactic.