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.
Initially, Judge Kim acknowledged that courts have disagreed as to the applicability of the attorney work product doctrine to questions about conversations or interviews, rather than requests for documentation of the same. Recognizing that the content of a witnesses’ responses may shed light on the questions asked – and by extension, the lawyer’s legal strategy – Judge Kim nonetheless reasoned that the answers alone “do not go to the ‘core’ of the attorneys’ mental processes” and thus are not protected by the privilege. In this way, the judge distinguished interview answers from interview questions, the latter of which directly reflect the attorneys’ thought processes and constitute attorney work product.
But the distinction was irrelevant here because Plaintiffs waived any privilege at the time of the conversations with the former employees. Judge Kim noted that the interviewed employees were third parties to the litigation and “free to divulge those conversations” because there was no evidence that Plaintiffs’ counsel told the former employees not to disclose the interviews or that the parties made any agreement to maintain confidentiality. The choice to interview the former employees without such assurances of confidentiality thus “substantially increased the chance that Defendants would obtain information about those conversations,” resulting in waiver of any attorney work-product protection.
Judge Kim pointed out that litigants can maintain privilege over work product shared with third parties who share a common interest with the litigant, citing as an example a case where the sharing of work product with a PR firm retained to assist in responding to litigation did not constitute waiver. However, the judge ruled the common interest doctrine did not apply here because Plaintiffs did not argue that they shared a common interest with the interviewed employees, or that the parties had entered any common-interest agreement that could support a claim of privilege as to the shared information.
Further, even assuming the privilege applied, Judge Kim held that Plaintiffs waived any protection with respect to the questions and answers in the former employee interviews because Plaintiffs failed to object to deposition questions about those interviews. By “selectively allowing the witnesses to answer some but not all of the questions about the [interviews],” Plaintiffs waived the privilege as to the entirety of those conversations. The judge acknowledged that parties can selectively waive privilege – such as a waiver extending to one witness and not another – but rejected Plaintiffs’ “attempts to parse the waiver into subject matters for each witness,” ruling instead that once the doctrine was waived as to a conversation, the waiver extended to the entire conversation. As a result, Judge Kim ruled Twitter could question witnesses in future depositions about their conversations with Plaintiffs’ counsel.
The ruling calls to mind important lessons with respect to privileged communications. First, practitioners and clients should remember that maintaining privilege is an active, not a passive, responsibility. Failing to exercise care when dealing with confidentiality or to object to probing questions in a consistent manner can result in a waiver. Second, always take proper steps to ensure information gains the protection of privilege in the first place – a discussion with a third party in the absence of a clear assurance of confidentiality can function as a disclosure of information and creates no privilege to be waived. When dealing with third parties such as witnesses or investigative sources, a confidentiality or common-interest agreement can be critical. Finally, the intentional disclosure of any privileged information for strategic purposes should be carefully considered – a court finding of a broad subject matter waiver can cause a planned offensive disclosure to seriously backfire.
Client Alert 2019-112
