In this episode, Jim Garrity addresses the risk of instant privilege loss - attorney-client, work-product, or any other privilege - in depositions, absent immediate objection and an instruction not to answer (and an immediate demand for return of privileged documents, if applicable). He discusses a decision where a court found that a plaintiff waived the attorney-client privilege by answering just three questions over two minutes, because there had been no objection or instruction not to answer by the plaintiff's counsel.

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SHOW NOTES

Luna Gaming-San Diego, LLC v. Dorsey & Whitney, LLP, et al., 2010 WL 275083, No. 06-cv-2804 BTM (WMc) (S.D. Cal. Jan. 13, 2010) (finding waiver of privilege in deposition, in absence of objection, to three questions and two minute discussion about a privileged document)

Neuberger Berman Real Est. Income Fund, Inc. v. Lola Brown Tr. No. 1B, 230 F.R.D. 398 (D. Md. 2005) (colorable good faith assertion of privilege, even if ultimately rejected by the court, is different from an improper objection, because the privilege objection must be made to avoid waiver, because it implicates substantive rights of the party apart from the litigation, and because it serves to prevent depositions from becoming tools for abuse)

ADDED AFTER EPISODE AIRED:

LifeBio, Inc. v. Eva Garland Consulting, LLC, No. 2:21-CV-722, 2023 WL 3258586, at *9 (S.D. Ohio May 4, 2023) (finding privilege waiver where, among other things, plaintiff's counsel allowed use of privileged document by opposing counsel in deposition; held, "..counsel waited over 300 days . . . after Defendant used the documents in a fully briefed summary judgment motion to attempt to clawback the documents, “long after the proverbial cat was out of the bag.” [Citations omitted.] Put simply, nothing about Plaintiff's attempts to rectify this situation was attentive, diligent, or even “reasonable.” Fed. R. Evid. 502(b)(3). Nor were they “prompt[ ]....”)