Communications between lawyers and outside litigation consultants, such as e-discovery vendors, are largely protected by the attorney work product doctrine and the attorney-client privilege. Similarly, the knowledge possessed by in-house litigation support personnel is also generally protected from disclosure from discovery in litigation.
In United States v. Nobles, 422 U.S. 225 (1975) the United States Supreme Court acknowledged that to do their jobs, attorneys rely on investigators, consultants, and other third parties. As a result, the court concluded the attorney work product doctrine and attorney client privilege limits discovery from persons assisting attorneys.
The protection afforded to litigation consultants is not limited to third parties hired by counsel. For instance, in Broyles v. Convergent Outsourcing, Inc., Case No. C16-775-RAJ (W.D. Wash. May 23, 2017), the court refused a request to depose Convergent’s litigation support specialist.
Broyles sued Convergent for an alleged violation of the Fair Credit Reporting Act. Broyles wanted to depose Convergent’s in-house attorney because it anticipated an “advice of counsel defense” and also desired to depose a litigation support specialist.
The court refused to allow either deposition. Relying on Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986), the court pointed out opposing attorneys may be deposed only if: 1) no other means exists to obtain the information other than testimony from opposing counsel; 2) the information is relevant and unprivileged, and 3) the information is crucial to the case.
The court prohibited the deposition of Convergent’s attorney based on, among other reasons, the attorney client privilege. The court further noted that the protections of Shelton applied to litigation support staff because they are agents of in-house counsel.
Despite the argument that the litigation support specialist waived attorney-client privilege by speaking with opposing counsel, it was not enough to get around Shelton because for the deposition to proceed, it would have to be shown that the information sought was crucial to the case and could not be found elsewhere.
Regardless of how protection for communications between attorneys and their assistants arises, confidentiality is not absolute and steps should be taken to preserve the privileged nature of the communications. Check out this article for additional ideas about keeping communications with legal vendors and support staff confidential.