SLCC assumed the supplemental disclosures meant that Peterson intended to give a legal opinion that the accommodations SLCC had offered (and that Ellis rejected) were not “reasonable.” SLCC deposed Ellis about her communications with her lawyer regarding the “reasonableness” of the accommodations. Ellis’s current counsel did not object to the client’s deposition based on attorney-client privilege. At the deposition, Ellis testified that Peterson told her that SLCC offered accommodations that were not reasonable and that Peterson thought the discussions with SLCC were “very atypical” compared to other ADA matters.
SLCC followed up the client deposition with a deposition subpoena for Peterson seeking documents and communications about Ellis’s termination and any accommodations SLCC had offered. Ellis moved to quash the subpoena on the grounds that it sought to invade the attorney-client privilege. In response, SLCC claimed Ellis had already waived the privilege because she put Peterson’s legal advice at issue in the disclosures and revealed the lawyer’s legal advice in her deposition. Ellis argued that her testimony about Peterson’s legal opinions did not reveal any “confidential” communications and the privilege remained intact.
The U.S. District Court for the District of Utah denied the motion to quash. The court reasoned that if Ellis did not disclose any confidential information in her deposition, then the information was not privileged and discoverable under Federal Rule of Civil Procedure 26(b)(1). Moreover, if Ellis had learned about Peterson’s legal opinions through confidential communications, then Ellis had waived the attorney-client privilege under Federal Rule of Civil Procedure 502(a) when Ellis listed Peterson as a witness and disclosed her advice during deposition.
Listing Counsel as Fact Witness Waived Privilege
The court held that Ellis “affirmatively took a litigative action” that placed Peterson’s advice at issue and waived the attorney-client privilege. Determining whether there has been an “at-issue” waiver of the attorney-client privilege requires considering whether the assertion of the privilege occurred as a result of an “affirmative act” by the party asserting the privilege; whether the privileged information was put at issue by making it relevant to the case; and whether the application of the privilege would deny the opposing party access to information “vital” to its defense. Because Ellis had intentionally disclosed Peterson as a witness about a critical issue in the case—the reasonableness of the accommodation offered by SLCC—Ellis made Peterson’s testimony relevant, and applying the privilege would deny SLCC information critical to its defense.
Unchallenged Deposition Testimony Waived Privilege
The court rejected Ellis’s claim that she had not waived the attorney-client privilege during her deposition when disclosing Peterson’s opinions. The court explained that “a waiver of attorney-client privilege occurs when the client discloses the substance of an otherwise privileged communication to a third party.” Those conditions were met, as Ellis testified about the content of her conversations with Peterson during her deposition. Critically, the court emphasized that the waiver was intentional because there was no objection on the grounds of privilege to questions that were clearly requesting privileged communications between Ellis and Peterson.
Tread Cautiously When Listing Counsel as a Witness
ABA Litigation Section leaders counsel that this case serves as a reminder to be vigilant about protecting the attorney-client privilege, especially in cases where lawyers might need to testify in a case. While Litigation Section leaders believe disclosing a lawyer as a fact witness will not waive the privilege by itself, in so doing, “one skates on thin ice and must be particularly careful about any testimony that might be elicited,” opines James D. Abrams, Columbus, OH, cochair of the Section’s Commercial & Business Litigation Committee.
That is why lawyers “need to be vigilant about limiting the [lawyer’s] testimony to factual observations” and should “carefully craft the testimony to be limited to the lawyer’s factual knowledge derived from personal observations and not based in any part on communications with the client,” advises Mark A. Romance, Miami, FL, cochair of the Section’s Commercial & Business Litigation Committee.
When a lawyer is deposed, the client’s counsel should be prepared to object “to any question that could potentially require disclosure of any communications between the client and the lawyer,” counsels Romance. Indeed, “a client intending to identify a counsel as a witness should expect that the opposing party will aggressively seek a determination that the privilege was waived, and must zealously guard against any inadvertent waivers of the privilege,” he concludes.