Part I
In all or nearly all circumstances, historical facts do not deserve privilege protection – something either happened or it didn't happen. The privilege can protect communications about those historical facts. To make matters more complicated, the fact that a client and her lawyer communicated likewise does not deserve privilege protection, except in rare circumstances. Applying these axiomatic rules can be difficult.
In Valentin v. Salson Logistics, Inc., the court held that the privilege did not protect "when and with whom [client] consulted for the general purpose of discussing possible legal remedies." Case No. 8:20-cv-2741-VMC-CPT, 2022 U.S. Dist. LEXIS 3824, at *5 (M.D. Fla. Jan. 7, 2022) (citation omitted). In applying the same nuanced principle to the plaintiff's visit to a medical provider, the court cited an earlier case in distinguishing between: (1) the non-privileged "underlying fact of whether [a client] saw a particular physician"; and (2) the privilege-protected fact of "whether [a client] saw the physician at [the client's] attorney's request." Id. at *4 (citation omitted). The court ultimately held that "the fact that her attorney referred her to particular medical providers is protected by attorney-client privilege." Id.
It can be difficult to distinguish between non-privileged logistical information about a communication and the explicit or implicit privileged content of such a communication. Part II describes another court's attempt to draw these lines about two weeks later.
Part II
Part I described a court's careful delineation between the logistics (time, place, etc.) of a privileged communication and such communications' explicit or implicit privileged content. The stakes naturally become higher if the client seeks some litigation advantage based on the logistics or on the content.
In Klein v. Paskolite, LLC, defendant accused of a fraudulent transfer "asserted as a defense that the transfers were done in good faith, and . . . pointed to its conferral with counsel as one piece of evidence for that good faith." Case No. 2:19-cv-00832-DN-PK, 2022 U.S. Dist. LEXIS 11345, at *1-2 (D. Utah Jan. 19, 2022) (footnote omitted). But defendant's lawyer objected on privilege grounds to the question of whether the company "relied upon the communications it got from its counsel." Id. at *7. Not surprisingly, the court found that defendant's "good faith" defense waived its privilege protection as to the communication's content – bluntly rejecting defendant's argument "that it did not place the 'substance' of the communication at issue, but merely disclosed the fact a communication had been made." Id. at *6. The court explained that "[t]he mere fact a communication was made between [defendant] and its counsel has little relevance to a good faith defense alone. What is relevant is what was said in that communication." Id. at *7.
It can be difficult to distinguish between a communication's logistics and content, but litigants should not expect to gain some litigation advantage by tricky manipulation of the distinction.
Published April 13, 2022.
