- Child’s heart stopped during surgery in 1988
- Surgery was at a hospital in the Good Samaritan Med Center
- A lawyer for Samaritan investigated
- Had his paralegal interview 3 nurses and a technician who were present during the surgery
- Those interviewed signed an agreement to be represented by Samaritan’s legal dept.
- Interviews were summarized in memo form and sent to corporate counsel
- Child and parents sued the Hospital (not the Samaritan Found.) alleging medical malpractice
- The same four employees that were interviewed were deposed 2 years after the fact
- They were unable to remember what happened during surgery
- P sought discovery of the memo(s) containing the summaries of the former interviews
- D and Samaritan argued that they fell under attorney-client privilege
- Does attorney-client privilege extend to employees of a corporation when interviewed by corporate counsel in anticipation of litigation?
- Where someone other the employee initiates the communication, a factual communication by a corporate employee to corporate counsel is within the corporation’s privilege IF it concerns the employee’s own conduct within the scope of his or her employment AND is made to assist the lawyer in assessing or responding to the legal consequences of that conduct for the corporate client
- 2 categories of client communications:
- Those initiated by employee seeking legal advice
- Those made in response to overture initiated by someone else in corporation
- Unless there is some self-limiting feature, the breadth of corporate activity could transform what would be witness communications in any other context into client communications
- The rationale of the privilege is that by assuring the individual client that his or her communications cannot be disclosed without consent, it encourages the client to be candid.
- Since the actions of an employee can be imputed to the corporation, it is less problematic to legitimize the corporation’s control over the privileged nature of the employee’s communications.
- However, if the employee is not the one whose conduct gives rise to the liability, the employee should be characterized as a “witness”, rather than a “client”.
- Notes that Upjohn rejected “control group test” as a definition of attorney-client privilege.
- Rejects Samaritan’s argument that Upjohn adopted such a broad approach that the privilege would encompass employee communications with corporate lawyer at direction of corporate superiors
- Purpose of court’s approach was to put the corporation on par with the individual client
- Concludes that the statements made by nurses and technician are not privileged because
- These employees were not seeking legal advice in confidence
- Initial overture was made by others in corporation
- Employees actions did not subject corporation to liability, even though they were there
- Statements were not gathered to assist the corporation in assessing or responding to the legal consequences of the speaker’s conduct
- The fact that the corporation had them sign as client’s shows that the corporation was acknowledging that they were not client’s otherwise and not subject to the privilege
- Since the employees were not subject to liability, the only reason to have them sign agreements was to attempt to apply privilege and “silence” them