Lawyers representing corporations or other entities during investigations routinely interview former employees. Those intangible interviews and any resulting documentation presumably deserve work product protection if the entity reasonably anticipates litigation at the time. But what about the absolute attorney-client privilege?
In McGowan v. Southern Methodist University, Civ. A. No. 3:18-CV-141-N, 2023 U.S. Dist. LEXIS 63907 (N.D. Tex. Apr. 11, 2023), the court adopted the majority view – relying on the widely cited Peralta standard (from Peralta v. Cendant, 190 F.R.D. 38 (D. Conn. 1999)). The court held that an SMU lawyer’s communications with former University employees deserved privilege protection to the extent they focused on the time that the former employees worked there. The court also explained that if SMU’s lawyer also represented the former employees, the privilege could protect deposition preparation-related communications; “information provided to the employee to prepare for the deposition”; “references to other witnesses’ testimony”; and “instructions given by defense counsel about the employee’s testimony.” Id. at *8-9. But the court held that SMU could not assert those privilege protections, because its lawyer only represented the witnesses “as former employee[s] but not individually.” Id. at *9 (alteration in original). The court inexplicitly ordered those produced — without considering what should have been obvious work product protection.
Corporations and their lawyers should familiarize themselves with both the privilege and work product implications of such common types of interviews, and be prepared to assert either or both.