Client Alert: The Attorney-Client Privilege and Former Employees

Date: Jul 26, 2010

A federal court recently clarified the relationship under Pennsylvania law between counsel hired to represent a corporation in litigation and a former employee who is being deposed. At least in Pennsylvania, counsel's communications with that former employee may be protected by the attorney-client privilege.

In In re: Flonase Antitrust Litigation, No. 2:08-cv-03301-AB, 2010 WL 2649923, at *2 (E.D. Pa. June 30, 2010), plaintiffs sought to compel Ms. Bowers, a former employee of defendant GlaxoSmithKline ("GSK"), to answer questions about her communications with GSK's counsel during recesses at her deposition. The court, applying Pennsylvania law, found that the communications between Ms. Bowers and GSK's counsel were protected by the attorney-client privilege and refused plaintiffs' request. The court found that Ms. Bowers' communications with GSK's counsel were protected because her "testimony concerned matters within the scope of her former responsibilities with defendant corporation and because her conversations with defense counsel may be relevant to defendant's legal strategy." In re: Flonase, 2010 WL 2649923 at * 2.

To determine whether a communication is privileged the party claiming attorney-client privilege must show, among other things, that "[t]he asserted holder of the privilege is or sought to become a client." Id. The attorney-client privilege has been applied to corporate counsel communications with current employees in specific instances. See Upjohn Co. v. United States, 449 U.S. 383 (1981).

Less clear is whether the attorney-client privilege extends to attorney communications with former employees. Although many courts have protected "communications between a corporate client and the client's former employees," In re: Flonase, 2010 WL 2649923 at * 2, they have not universally done so. For instance, a federal court in California, applying California law, came to the exact opposite conclusion when it held that a former employee's communications to the corporation's attorney were not protected by the attorney-client privilege as communications by the corporation to its attorney. Connolly Data Sys., Inc., v. Victor Technologies, Inc., 114 F.R.D. 89, 94 (S.D. Cal. 1987). The court reached its conclusion because the former employee: (1) was not "the natural person to speak for corporation;" (2) was not required to speak to the corporation's attorney; and (3) was not the only one with knowledge of the matters at issue. Id.

Representing former employees individually may create conflicts issues for attorneys. Although the court's order suggests that at least in Pennsylvania the need to represent former employees individually may be obviated, lawyers and the companies who employ them should be careful to avoid treating this finding as a bright line rule.

For more information, please contact Douglas Behr at behr@khlaw.com.