Partial Waiver of Attorney-Client Privilege Ruled by Court: eDiscovery Case Law

It’s a three-post day! In Williams v. Nationstar Mortg. LLC, No. 19-663-BAJ-SDJ (M.D. La. Feb. 8, 2022), Louisiana Magistrate Judge Scott D. Johnson granted in part and denied in part the defendant’s Motion to Compel Discovery Responses seeking the plaintiff to respond to deposition questions about conversations with his therapist regarding the litigation that may have disclosed attorney-client communications, ruling there was a partial waiver, but not total waiver of attorney-client privilege.

Case Background

In this case, the plaintiff’s deposition was taken in July 2021. During the deposition, defense counsel “questioned the Plaintiff on his counseling sessions with Holly Besse, a licensed professional counselor whom Plaintiff has identified as providing treatment for his alleged mental anguish.” As part of document production in this case, Plaintiff produced the session notes from his meetings with Besse, which made reference to discussions between the plaintiff and Besse regarding this case as well as discussions Plaintiff had with his attorney about the case. During Plaintiff’s deposition, defense counsel questioned Plaintiff about his conversations with Besse regarding this case and his discussions with his attorney, but Plaintiff’s counsel objected, claiming Plaintiff’s discussions with his attorney are protected by the attorney-client privilege, and instructed Plaintiff not to answer the questions for the same reason, leading to the defendant filing the instant Motion to Compel.

The plaintiff argued that instead of disclosing specific communications with his attorney, he provided only “his own evaluation of certain communications he had with his attorney”, that discussions with Besse do not involve disclosures of a significant portion of the confidential communications between Plaintiff and his counsel, meaning there is no waiver of the attorney-client privilege as a whole (but a partial waiver at best), that, even if the Court finds that a significant portion of the communications was disclosed, subject matter disclosure is not warranted pursuant to Federal Rule of Evidence 502 and that if Rule 502 do not apply, the alleged waiver of the attorney-client privilege should extend only to communications related to the same subject matter.

Judge’s Ruling

Judge Johnson stated: “Here, the question is whether Plaintiff has waived his attorney-client privilege by disclosing to his treating therapist discussions he had with his attorney. In general, disclosure of confidential attorney-client communications to a third party waives the attorney-client privilege…While the case law on the issue of whether disclosure of confidential attorney-client communications to a treating mental health professional also waives the privilege is sparse, courts have found that such disclosures do, in fact, waive any attorney-client privilege that may have attached to the communications…Based on Plaintiff’s disclosure of information discussed with her attorney to her therapist, a third party, and his production of session notes, the Court finds that Plaintiff has waived the attorney-client privilege.”

However, Judge Johnson also found there was only a partial waiver of attorney-client privilege, stating: “First, disclosure of a ‘significant portion’ of the confidential communications with his attorney by a client results in a complete waiver of the privilege…Second, FRE 502 limits any waiver to the actual disclosures at issue.”

Judge Johnson discussed the areas in which there was partial waiver of attorney-client privilege, as follows:

“Here, the references to communications between Plaintiff and his attorney found in the session notes, as listed by Plaintiff in his Opposition, are:

1) His lawyer is pressuring him to settle for the 90,000 the opposing counsel is offering, but Reginald is refusing.

2) He also had a good conversation with his lawyer regarding the case and they are both on the same page now regarding what he is willing to accept in a settlement.

3) He is somewhat upset that his lawyer didn’t submit the correct paperwork and their trial has been pushed back to January 2022.

4) He has had a talk with his lawyer to not push it back anymore because he took time off in May for court and now it’s not happening.

The Court, after reviewing all session notes filed by Nationstar under seal, agrees with Plaintiff that these are the statements that disclose confidential communications he made with his attorney. While other references are made to this case in the session notes, they either pertain to Plaintiff’s reactions to or feelings about the case or are simply facts about the case. Based on these disclosures, the Court does not find that Plaintiff disclosed a ‘significant portion’ of his confidential communications with his attorney. As such, there is no complete waiver of the attorney-client privilege. Additionally, as Plaintiff has claimed—and Nationstar has not challenged—these ‘disclosures were not intentional’ waivers, meaning all three elements of an FRE 502(a) subject matter disclosure are not met.”

Judge Johnson also denied the defendant’s request for attorney’s fees and costs, finding “that the response of Plaintiff and Plaintiff’s counsel to the questions in the deposition was substantially justified”.

So, what do you think? Do you agree that there should have only been a partial waiver of attorney-client privilege here?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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