Protecting work product and attorney-client privilege is not always simple when preparing a witness. If the witness reviews a document to prepare testimony, the document may be subject to production, and such production may waive a variety of privileges. A crafty interrogator may well require the production of documents and other things subject to privilege. A defender of a deposition should know how to reduce this risk. This article will use the Federal Rules of Evidence and the Federal Rules of Civil Procedure to illustrate the issues, but state court rules and case law can provide similar results and strategies.
Types of Privileges
The attorney-client privilege protects client information discussed confidentially with counsel for professional legal advice. The client is entitled to waive this absolute privilege against disclosure, and the privilege can be waived inadvertently. An inadvertent waiver could occur, for instance, by sharing the privileged information with someone who is not a client and cannot otherwise protect the privilege. Preparing a deponent with attorney-client privileged material, even if the deponent is a client, may result in a waiver of the privilege if the client is asked and answers about it. Object to any questions involving legal theories of a fact witness.
