March 18, 2021

Episode 32 -Lessons from the Front Lines: Agreeing to the "Usual Stipulations" to Hold Objections Until Trial? You Still Have to Make THIS Critical Objection.

16 minutes

Often, lawyers agree to "the usual stipulations" at the start of the deposition. Just as often, it's unclear what those stipulations are, and how they affect the assertion of objections during the deposition. But one thing is clear. "Usual stipulation" agreements do not apply to objections based on privilege. Privilege objections must be asserted regardless.

In today's Lessons from the Front Lines episode - special episodes where we spotlight a brand new court ruling on deposition-related issues - Jim discusses a March 15, 2021 ruling that a lawyer inadvertently (but fully) waived the attorney-client privilege in a deposition where the lawyers had agreed to "the usual stipulations." During the deposition, the deponent was asked to reveal privileged information and, in some instances, volunteered privileged information. There were no objections, and no instructions not to answer. Complete waiver resulted.

Jim discusses the ruling and ends the episode with practical tips to avoid the same fate.

As always, the cases referenced in the episode, or on which the episode is based, are included below in the show notes.

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Cases Mentioned in This Episode:

Shaffer v. Pennsbury School District, 2021 WL 966208, Case No. 20-3415 (E. D. Penn. March 15, 2021) (privilege waived where a lawyer failed to instruct the witness not to answer, and, further, failed to halt witness once it became apparent that witnesses answer was revealing privileged information)

Perrignon v. Bergen Brunswig Corp., 77 F.R.D. 455 (N.D. Cal. 1978) (counsel's failure to instruct a third-party deponent not to respond to question eliciting privileged communication resulted in waiver of privilege)

Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993) (even case suggesting draconian limits on lawyer's ability to object at deposition made clear that lawyers should object t disclosure of privileged communications)

Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F. 2d 1414 (3d Cir. 1991) (rejecting selective waiver of privilege)

Fid. & Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516 (E.D. Pa. 1996) (while attorney-client privilege belongs to the client, a lawyer, as the agent, can be sufficiently negligent in protecting the privilege that waiver results)

Federal Rule of Evidence 502 (on privilege and intentional or inadvertent waiver)

AUTHORITIES ADDED AFTER THIS EPISODE AIRED:

Delotta v. South Broward Hospital District, etc., 2021 WL 6134784 (S. D. Florida January 22, 2021) ( privilege waived by reviewing protected notes during deposition, in absence of assertion of any protection or objections while deposition was in progress)

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