Former Employees Can Have Privileged Communications With Their Former Employer’s Lawyer, but Cannot Waive Its Privilege

January 24, 2024

In all but a few states, the attorney-client privilege can protect a company’s lawyer’s communications with former company employees — as long as the communications focus on the former employees’ tenure at the company. But in contrast to this similarity to current employees, former employees cannot waive their former employer’s privilege.

In Norris v. Fat Burgers Sports Bar & Grill, LLC, No. 7:22-CV-144-D, 2023 U.S. Dist. LEXIS 201170 (E.D.N.C. Nov. 9, 2023), a Title VII plaintiff sought discovery from (among others) a former co-owner of defendant Fat Burgers. In laying out the ground rules for the discovery, the court quoted an earlier Eastern District of Virginia decision stating that “[f]ormer employees, as opposed to current ones, cannot waive the corporate attorney-client privilege because they do not hold it.” Id. at *10 (alteration in original). The court also wisely looked ahead to what might happen at a deposition — correctly noting that “[d]efendants can instruct [their former employee] not to answer questions during the deposition to preserve their privilege.” Id. The court concluded with an equally understandable key point: “[i]f [the former employee] fails to comply, defendants’ corporate privilege will not be waived.” Id. at *10-11.

This highlights the distinction between disclosure and waiver. If a former employee deliberately or accidentally blurts out some privileged communication while being deposed, the whole world might be able to read it (absent a sealing order). But it would not waive the company’s privilege, so it would not be admissible in a court proceeding.