Reed Smith Client Alerts

As this recent decision from the Northern District of California demonstrates, maintaining privilege is an active responsibility to be mindful of throughout the course of litigation.  In Shenwick, et al. v. Twitter, Inc., et al. (April 19, 2019), U.S. Magistrate Judge Sallie Kim ruled that Twitter was entitled to inquire into conversations Plaintiffs’ counsel had with confidential witnesses because counsel had failed to enter any confidentiality or common-interest agreement with those witnesses, and failed to consistently object to questions about those conversations asked at their depositions.  Consequently, while the conversations could have been subject to the protection of the attorney work-product doctrine, counsel’s failure to take adequate measures resulted in a waiver of any claim of privilege as to those conversations.

Authors: Perry A. Napolitano Justin J. Kontul Brian J. Willett

A U.S. Magistrate Judge in California recently provided a cautionary tale for attorneys not vigilant about safeguarding the confidentiality of potentially privileged information, ruling that Twitter, Inc. could question former employees acting as confidential witnesses for investor Plaintiffs in a stock-drop suit about their conversations with Plaintiffs’ counsel.  Specifically, Judge Sallie Kim ruled that the Plaintiffs’ attorney’s failure to contemporaneously ensure confidentiality of the conversations and to consistently object to questions Twitter’s counsel asked the witnesses at their depositions waived the protection of the attorney work-product doctrine.  Although Plaintiffs’ counsel objected to some of Twitter’s inquiries into the conversations the witnesses had with counsel, that was insufficient because parties “cannot pick and choose when to assert the attorney work product doctrine for a particular witness” and still retain its protection.  Judge Kim also ruled that even if no waiver had occurred, only the questions Plaintiffs’ counsel asked were subject to work product protection, so Twitter’s attorneys would still be entitled to ask the former employees about responses they had provided.

In the suit, Plaintiffs alleged that Twitter overstated its user engagement statistics and that its misrepresentations ultimately resulted in a dramatic single-day stock drop that harmed investors such as Plaintiffs.  To build their case, Plaintiffs interviewed several former Twitter employees identified as confidential witnesses in the pleadings.  During depositions of those former employees, Twitter’s counsel inquired into conversations they had with Plaintiffs or their representatives.  Plaintiffs’ counsel objected to some but not all of the questions on this topic.