The Unintended Consequences of Attaching Your Client’s Documents to an Opponent’s Deposition

The Unintended Consequences of Attaching Your Client’s Documents to an Opponent’s Deposition

Written by Joel P., OLN Freelance Attorney

Attaching what looks to be stolen documents to a deposition transcript while risking waiver of the attorney-client privilege is never a sound gamble to take no matter how big the potential pay-off may appear.

Suppose a party-deponent produces documents at his/her deposition that you believe were stolen from your client’s files. Initially, there might exist the temptation to use those portions of the documents that support your client’s case against the party-deponent. So valuable, you might even fall prey to attaching them to the transcript itself. However, once utilized and attached to the transcript as exhibits, those stolen documents you believe will undermine the deponent’s case and/or prove theft of intellectual properties always will result in a finding of “waiver” of the attorney-client privilege. It is an impulse that must be ignored.

Deposition transcripts are considered part of the public record of any case. Bd. of Trustees of Cal. State. Univ. v. Superior Ct. (2005) 132 Cal.App.4th 889, 901-02. A holder’s disclosure of privileged communications during discovery absolutely results in a waiver of the holder’s right to (later) claim the privilege for communications about the matter disclosed. Weil v. Investment/Indicators, Research & Mgmt., (1981) 647 F.2d 18, 25.

The “triggering event” for waiver of the attorney-client privilege “is disclosure.” Tennenbaum v. Deloitte & Touche, (1996) 77 F.3d 337, 340-341. Depositions are not confidential events, or documents, in which there would be an expectation of privacy. Bd. of Trustees of Cal. State. Univ., supra, at 901-02. That is, if you have not acted to seal the deposition itself.

California Evidence Code §912(a), the seminal waiver statute and the model for Rule 511 of the proposed Federal Rules of Evidence, states that “the right of any person to claim a privilege … is waived with respect to a communication protected by such privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to such disclosure madeby anyone.” Tennenbaum, supra, at 340-341.

If the subject documents were ever privileged or protected as work product, the moment they are used at the party-deponent’s deposition and subsequently attached, the privilege becomes waived. The intentional reading into the record of supposed privileged communications you deem stolen results in waiver. The moment one marks the subject documents and attaches them as exhibits to the deposition, the documents become published outside of the attorney-client relationship. Avoiding the urge to harpoon an opposing party in deposition with your own client’s documents you believe were stolen, easily can undo the entire matter once crossing the threshold of waiver of the attorney-client privilege.