Attacking Unfounded Privilege Assertions in Depositions

By: Jillian Ginger

This article addresses misuses of the attorney-client privilege and ways to attack improper assertions of the privilege. The issue might be familiar to you: Plaintiff's family member or close friend must give deposition testimony based on their purported knowledge of Plaintiff's personal injuries, quality of life, mental health, or some other element of claimed damages. This witness is not a party to the lawsuit, is not actively pursuing any claims, and has alleged no injury, damages, or cause of action of their own from the subject incident. 

As the deposition begins, inevitably, defense counsel asks some version of this question: “What did you do to prepare for today’s deposition?” followed shortly by “Did you speak with anyone to refresh your recollection?” In response, Plaintiff’s counsel objects to questions as violating the attorney-client privilege and tells the witness to not answer. Defense counsel challenges the objection, but what next? Either suspend the deposition to obtain a ruling, make note of it in on the record, or keep moving forward with the deposition because your client is paying you for the time spent. Unfortunately, neither option clarifies or fixes the issue or protects your client’s right to obtain testimony from an un-coached fact witness. What's a lawyer to do? Go on the offensive!

Rule 503 of the Texas Rules of Evidence states that “A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client” in the following circumstances:

(A) Between the client or the client's representative and the client’s lawyer or the lawyer’s representative;

(B) Between the client’s lawyer and the lawyer’s representative;

(C) by the client, the client’s representative, the client’s lawyer, or the lawyer’s representative to a lawyer representing another party in a pending action or that lawyer's representative, if the communications concern a matter of common interest in the pending action;

(D) Between the client’s representatives or between the client and the client’s representative; or

(E) Among lawyers and their representatives representing the same client.

Tex. R. Evid. 503(b)(1).   

However, when dealing with family members, next of kin, or friends of the Plaintiff who are testifying as fact witnesses, the attorney-client privilege does not apply to their testimony unless they qualify as the “client’s representatives” under Rule 503. A “client’s representative” is “a person who has authority to obtain professional legal services for the client or to act for the client on the legal advice rendered,” or “any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a confidential communication while acting in the scope of employment for the client.” Tex. R. Evid. 503(a)(2). Unless the testifying witness meets this definition, their communications are not protected by the attorney-client privilege.

The testifying witness’s communications and deposition preparation could be protected by the attorney-client privilege if Plaintiff’s counsel executed an agreement to represent the witness for the deposition. See In re Rescue Concepts, Inc., 556 S.W.3d 331, 339-42 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (analysis of evidence needed to establish attorney-client privilege). Such a relationship is contractual and usually memorialized in a written agreement defining the scope of the representation and consideration provided in exchange. Id.; see In re Nat'l Lloyds Ins. Co., 532 S.W.3d 794, 804 (Tex. 2017). Again, without an executed agreement in place or affirmative evidence establishing the contractual relationship, the testifying witness’s communications should not be protected by the attorney-client privilege.

Typically, in these instances where fact witnesses are giving deposition testimony in a personal injury suit, the attorney-client privilege is not applicable.  Further, the party asserting the privilege has the burden to establish applicability of the privilege, which, in this case, is the Plaintiff's attorney who is claiming privilege on behalf of the non-party witness.

So where does this lead us, and how can the defense attorney avoid fighting over privilege during the fact witness’s deposition?  Below are some potential offensive steps for pushing back on opposing counsel’s unfounded privilege claims:

• Before the deposition, serve a subpoena duces tecum with your Notice of Deposition, asking for the witness to provide any documents that demonstrate that the witness is represented by counsel for the deposition, and noting that the witness should redact any information that is intended to be privileged. Next, ask the witness to produce any documents that demonstrate their authority as the client’s “representative” (providing definitions of the term).
• During the deposition, request the witness produce all the documents that they brought in response to the subpoena duces tecum. 
• Next, use the same line of questioning regarding their preparation for today’s deposition (e.g., who did they talk to, what documents did they review, what information did they use to refresh their recollection, etc.) [Note: If they did review something (e.g., any document from lawyer that they have with them or that they are referring to in deposition), this constitutes a waiver of the attorney-client privilege.]  
• Finally, defense counsel should be prepared to object if the witness does not bring the evidence of an attorney-client relationship, in violation of the subpoena duces tecum, or if the witness improperly invokes the privilege without establishing it, and make a note of the rules violated on the record. Inform counsel on the record that, if the witness does not produce evidence of a lawyer-client relationship or is not later produced, defense counsel will seek a supplemental deposition to get those answers, at Plaintiff’s expense. 
• After the deposition, follow up on any promises and/or statements made by the witness or counsel during the deposition (such as a promise to produce evidence of the attorney-client relationship).   

In the end, non-party witnesses often offer a mixed bag of various information that may or may not ultimately “move the needle” from a jury opinion perspective. As defense counsel, however, take these opportunities to attack Plaintiff and Plaintiff’s counsel’s credibility by challenging these often unfounded attorney-client privilege assertions.

Further, the client and the jury have the right to understand the motivations and influences that may be coloring a testifying witness’s testimony. By taking the time to lay the necessary predicate before the deposition, and being prepared to challenge the privilege assertions during the deposition, counsel can obtain additional information from the witness that may have been shielded by unsubstantiated privilege assertions, while simultaneously chipping away at Plaintiff’s reliability and veracity by calling out the gamesmanship that often accompanies depositions of non-party fact witnesses.