Drawing the Line Between a Privileged Communication’s Occurrence and Its Content

June 14, 2023

All or most courts assessing deposition objections distinguish between questions focusing on: (1) the occurrence of a privileged communication; and (2) its content. Not surprisingly, that line can sometimes be hard to draw.

In Jorjani v. New Jersey Institute of Technology, the court overruled objections to the following questions, because they simply sought “to elicit the fact of consultation, and if so, when the consultation occurred”: “Did you discuss [plaintiff] with [your general counsel] at this time?”; “Did you seek legal advice in November of 2016, from [general counsel]?” Civ. A. No. 18-11693 (WJM), 2023 U.S. Dist. LEXIS 67501, at *12-13 (D.N.J. Apr. 18, 2023). In contrast, the court upheld an objection to the following question: “In April of 2017, were you discussing [plaintiff]’s OAQ compliance with [in-house lawyers]?” Id. at *15. Thus, the court drew the line between a privileged communication’s general subject matter (plaintiff) and more specific subject matter (plaintiff’s compliance with a regulation). 

Courts trying to determine such lines face a difficult task. Consider the following spectrum: “Did you talk with your lawyer about the contract?”; “Did you talk with your lawyer about the contract’s enforcement provisions?”; “Did you talk with your lawyer about paragraph 7 of the contract?” Courts probably would permit the first question, not permit the third question, and disagree about the second question.