About Us  |  About Cheetah®  |  Contact Us

Group deposition prep did not waive attorney-client privilege

By Linda Panszczyk, J.D.

Boeing Co. did not waive attorney-client privilege by holding group deposition preparation meetings between company counsel and current employees and a former employee, a federal district court in Washington has ruled, denying an employee’s motion to compel discovery (Pallies v. The Boeing Co., September 6, 2017).

The plaintiff, who had worked as a crane operator for Boeing, was diagnosed in June 2014 with a degenerative disorder that affected his ability to use his extremities. He allegedly informed his managers immediately of his diagnosis and asked them to find him a new, less physically demanding position, such as a crane dispatcher. When a position opened up, he transferred into it and performed well but lost that position when another employee suffered a heart attack and took over the position, causing the employee to return to his old job. The employee was then entered into Boeing’s disability reassignment process but the company was unable to locate a suitable position and he was medically laid off.

“Getting their stories straight.” In their depositions, Boeing’s managers denied that the employee mentioned his medical condition before late 2014 but the employee claimed that management was informed of his disability during the summer of 2014 and he was informally accommodated at that time. Believing that the witness testimony had been influenced by the statements of other witnesses in group preparation meetings to “get their stories straight,” the employee sought to compel discovery of those group deposition preparations. He contended that the presence of an alleged non-client witness, a former employee, had waived any attorney-client privilege that could have existed between the company and its current employees and that attorney-client privilege does not protect deposition questions about the group meetings defense counsel had with witnesses because the witnesses spoke with each other for a purpose other than to seek legal advice.

Deposition preparation meetings. The court rejected the employee’s arguments that attorney-client privilege did not apply to the group deposition preparations due to the fact that statements between the witnesses were not made for the purpose of securing legal advice but rather to coordinate and influence witness testimony. According to the court, there was no evidence that any communications between employees happened during the group deposition preparations that were not a part of their attempts to seek legal advice from the company’s counsel. Each of the deposed witnesses signed declarations stating that they sought out the company’s counsel for the purpose of being represented by counsel and receiving legal advice regarding depositions, which they considered to be confidential. The company attorney also signed a declaration stating that she represented each of the employees to prepare them for deposition and extended the attorney-client privilege to them to the extent necessary to give them legal advice.

Attorney-client privilege. The eight-factor test to establish attorney-client privilege, created by the Ninth Circuit’s In re Grand Jury Investigation decision, was met in this instance because all the witnesses (1) sought legal advice (2) from the company attorney and (3) communicated with her (4-5) for that purpose in confidence with an expectation of the attorney-client privilege and thus (6) were permanently protected (7) from disclosure by anyone since (8) they have not waived their protection. Thus, it was clearly established that the company had proven that the attorney-client privilege applied to these deposition preparation meetings.

The court also rejected the employee’s argument that the attorney-client privilege should be abrogated because two witnesses allegedly changed their statements subsequent to deposition preparation because the evidence given for the supposed alteration of stories was insufficient to compel discovery of these meetings. The two witnesses did not contradict themselves but simply answered questions about when the employee first told them of his degenerative condition and disability needs. The employee did not cite any binding case law for the proposition that the attorney-client privilege can be abrogated by the presence of multiple witnesses in deposition preparations.

The court also rejected the plaintiff’s claim that a former employee’s communications with Boeing’s corporate counsel were not privileged because that former employee did not directly retain an attorney for her deposition. As a former employee, she was entitled to the attorney-client privilege with the company’s counsel as long as she gave information that was relevant to the case. The fact that the former employee made no formal contract or payments to the company counsel was not a necessary condition to establish an attorney-client relationship or the privilege it entails. She actively sought representation from the company counsel and was entitled to do so as a former employee. Because there was an attorney-client relationship between the company counsel and the former employee regarding the deposition preparation, the employee’s argument that the group meeting with the former employee waived any attorney-client privilege due to the presence of a third party failed. The employee’s motion to compel discovery was denied.