Brief Fact Summary. Plaintiff sought return of documents disclosed during discovery arguing that were privileged. The documents were used to prepare witnesses for deposition and Defendants argue that such use constitutes a waiver of any privilege.
Synopsis of Rule of Law. Using privileged documents to prepare a witness for a deposition may cause the documents to become discoverable.
Moreover, where communications at issue are made by corporate employees to counsel for corporation acting as such, at the direction of corporate superiors in order to secure legal advice from counsel, and employees were aware that they were being questioned so that the corporation could obtain legal advice, such communications are protected under the attorney-client privilege.View Full Point of Law
Issue. Did the Plaintiff lose any applicable privileges by using the documents to prepare witnesses for deposition?
Held. Justice Schwartz issued the ruling for the United States District Court for the District of Delaware in holding that the binders should have been disclosed and any privileges were lost.
Discussion. The District Court notes that such issues must be reviewed on a case by case basis. However, in this instance Plaintiff chose to use the binder and documents within to educate the witnesses for deposition. The Defendant was entitled to receive those documents to determine if witnesses were influenced by counsel’s presentation of the fact.