Several earlier Privilege Points cited cases in which a litigant unsuccessfully claimed attorney-client privilege protection while overlooking the clearly applicable work product protection. Some litigants making that mistake don’t always pay the price for such poor legal advice.
In Pethtel v. Veterans Roofing PLLC, Case No. 25-CV-01648-SPM, 2026 U.S. Dist. LEXIS 100728 (S.D. Ill. May 6, 2026), a terminated roofer suing his former employer for age discrimination resisted defendant’s motion to compel his testimony about his deposition preparation session that his wife had attended. Relying only on the narrow attorney-client privilege, the roofer argued that his wife met the demanding standard for outsiders whose presence doesn’t abort privilege protection, because his “wife’s presence served to facilitate the representation and assist the client in understanding and communicating with counsel.” Id. at *6. But the judge understandably rejected the plaintiff’s attempt to squeeze his wife into that narrow range of client “agents” (translators, interpreters, etc.) who are inside privilege protection.
Fortunately for the roofer, whose lawyer overlooked the undeniably applicable work product protection (which would have survived the wife’s presence), the judge denied defendant’s discovery motion – agreeing with the roofer’s lawyer’s description of defendant’s motion to compel as a “high-burden, low-yield discovery demand” that would “serve only to delay discovery and expend valuable judicial resources.” Id. at *8-9.