Adversaries Normally Can Explore Background Facts About Communications Withheld as Privileged

June 22, 2022

Attorney-client privilege protection focuses on communications’ content, but those communications’ context can shed light on their primary purpose, possible inapplicability because of third parties’ presence, etc. So adversaries ordinarily can ask such context questions.

In Zerfoss v. Hinkle Trucking, Inc., No. 19-1126, 2022 W. Va. LEXIS 330 (W. Va. Apr. 26, 2022), employment plaintiff showed up early for her deposition, and reviewed two notebooks before her lawyer arrived and the deposition began. Her lawyer objected to defendant’s lawyer’s questions about whether plaintiff had reviewed the notebooks, whether she communicated what was in the notebooks to her lawyer, where she obtained the information she wrote in the notebooks, etc. Plaintiff’s lawyer ended the deposition and left with her client. A “discovery commissioner” found the notebook’s content to be privileged, but the lower court nevertheless found plaintiff’s lawyer’s objections improper – because plaintiff’s lawyer “would not allow inquiry to establish a record regarding the facts and circumstances surrounding the creation of the information” in the notebooks. Id. at *6-7. The court ordered plaintiff to pay fees and costs incurred by the defendant’s lawyer, the court reporter and the “discovery commissioner.” Id. at *7. Plaintiff lost at trial, but appealed those sanctions. The West Virginia Supreme Court upheld the sanctions – noting that defendant’s lawyer had explicitly disclaimed any attempt to learn the notebook’s contents, and instead was properly “attempting to establish a record of whether the notebooks were protected by the attorney-client privilege.” Id. at *17-18.

It sometimes can be difficult to distinguish between such background facts and a communication’s content. But lawyers defending deponents must be careful not to block the former type of inquiry.