Can the Privilege Protect Documents Prepared by Someone Who Has Never Hired a Lawyer?

March 17, 2021

The attorney-client privilege protects communications between clients and their lawyers. But in certain admittedly limited circumstances, the protection can apply to documents created by someone who has not yet hired a lawyer.

In Nelson v. City of Hartford, No. 3:20 CV 221 (JAM), 2021 U.S. Dist. LEXIS 8204 (D. Conn. Jan. 15, 2021), a retired Hartford police detective sued the City for employment discrimination leading to his constructive discharge. The City sought production of notes Nelson described at his deposition as “basically a journal” that “he typed contemporaneously as a ‘running history of what had been happening in the department.'” Id. at *7. The court dismissed as “not determinative” the fact that Nelson “created the notes before he retained counsel” — because the privilege can protect a “party’s notes . . . made for the purpose of ultimately communicating with an attorney.” Id. at *8. The court then wisely reminded the parties that “the facts contained in this diary are not protected.” Id. at *9. Thus, “the defendant could have inquired into the facts that underlie [Nelson’s] allegations” – but “would be precluded from inquiring into what [Nelson] communicated to his attorney.” Id. at *9-10.

Not surprisingly, this scenario plays out most often in the labor and employment context.