Protecting The Attorney-Client Privilege: Depositions Of In-House Counsel

Previously published in In-House Defense Quarterly, Winter 2007.

You were simply doing your job as in-house litigation counsel to your companyreviewing the claim; investigating the situation; gathering facts from the company's employees; preparing a report for your business managers. So, now in the midst of litigation, why were you just served with a subpoena duces tecum commanding you to not only appear for a deposition in the case, but to also bring any and all documents evidencing your fact-gathering information? Your communications with employees and management and all of your memoranda about the case are clearly protected from discovery by the attorney-client privilege or work product doctrine, right?

It was not too long ago that "the deposition of an attorney [was] a highly unusual occurrence." Anderson v. Hale, 198 F.R.D. 493, 495 (N.D. Ill. 2000). Now, depositions of in-house litigation counsel, whether in a products liability, employment, commercial, or any other case, are a more frequent phenomenon, representing "a troubling and real-world discovery problem." United States v. Philip Morris, Inc., 209 F.R.D. 13, 17 (D.D.C. 2002). This article addresses this litigation tactic, including the reasons for the increased attempts to depose in-house counsel, the legitimate reluctance of in-house lawyers to sit for a deposition, how to establish and maintain the attorney-client privilege, and the procedures for responding to a subpoena in order to protect the privilege.

Increasingly Targeted Deponents

While there is no scientific data, the rise in reported decisions dealing with in-house lawyer depositions reveals "that the practice of taking the deposition of opposing counsel has become an increasingly popular vehicle of discovery." Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986) (citing cases). Many companies maintain a group of lawyers dedicated to managing litigation, including overseeing initial fact gathering prior to a lawsuit actually being filed. Other litigation in-house counsel are responsible for reviewing large repositories of documents and identifying for outside counsel those documents with the most relevance. In the commercial litigation setting, in-house lawyers are often called upon to lead the investigation into a particular dispute and make a recommendation on whether to file suit against another company. Because of these in-house activities, in-house lawyers will likely have more information about the facts giving rise to the litigation and often possess the most knowledge about the persons within the company who have discoverable information. Simply put, in-house lawyers are perceived by their adversaries as the proverbial gold mine of information.

As a result of these roles of in-house litigation counsel, crafty adversaries are citing arguably legitimate reasons for seeking discovery from the in-house lawyer. Of course, other motives may also be at work. For example, adversary counsel may seek to depose the in-house litigation lawyer in order to determine whether she had a good faith basis for asserting a particular claim or defense. The right (or wrong) answers could result in the adversary seeking Rule 11 sanctions or, later, filing a malicious prosecution lawsuit. In addition, some adversaries will seek to depose in-house counsel for the sole purpose of harassing the lawyer and her company, causing delay in the litigation, or disrupting the normal progression of the case. In these less attractive situations, depositions of in-house counsel "have a tendency to lower the standards of the profession, unduly add to the costs and time spent in litigation, personally burden the attorney in question, and create a chilling effect between the attorney and client." N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 85 (M.D.N.C. 1987).

Legitimate Concerns of In-House Lawyers

While the adversary's reason for seeking to depose the in-house counsel may or may not be genuine, there clearly are legitimate reasons for in-house lawyers to oppose giving depositions, many of which are rooted in their ethical obligations. First, except in certain, defined situations, "[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent." Model Rules of Prof'l Conduct R. 1.6. This ethical mandate is essentially a codification of the attorney-client privilege, which prohibits a lawyer from revealing confidential communications, the purpose of which "is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The privilege belongs to the company and, therefore, "the power to waive the corporate attorney-client privilege rests with the corporation's management and is normally exercised by its officers and directors," not its in-house attorney. Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 348 (1985).

A second ethical issue that may arise is that, to the extent the in-house lawyer intends ultimately to participate as counsel at trial, he or she may not serve as an advocate if he or she is a witness. The ethical rule expressly provides that, except in limited circumstances, "[a] lawyer shall not act as advocate at trial in which the lawyer is likely to be a necessary witness." Model Rules of Prof'l Conduct R. 3.7. See Qad, Inc. v. ALN Assocs., 132 F.R.D. 492, 493 (N.D. Ill. 1990). A third issue is that the deposition subpoena will often seek documents that constitute the in-house attorney's work product, which must, absent waiver, be disclosed only in limited circumstances. Specifically, lawyers, including in-house lawyers, are not required to produce documents "prepared in anticipation of litigation or for trial" unless "the party seeking discovery has substantial need of the materials" and shows "that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Fed. R. Civ. P. 26(b)(3). As explained below, for these privilege and ethics related reasons, "[c]ourts have been especially concerned about the burdens imposed on the adversary process when lawyers themselves have been the subject of discovery requests, and have resisted the idea that lawyers should routinely be subject to broad discovery." In re: Subpoena Issued to Dennis Friedman, 350 F.3d 65, 70 (2d Cir. 2003).

Compelling the Deposition of the In-House Lawyer

With these concerns in the minds of in-house lawyers and the courts, the in-house lawyer seeking to resist giving his or her deposition should first challenge any errors in the adversary's compulsion process. There are two avenues through which a lawyer may compel an adversary lawyer to appear for a deposition. First, the attorney may...