Washington Case Update: Attorney-Client Privilege Does not Include Post-Employment Communications

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Washington Case Update – Attorney-Client Privilege Does not Include Post-Employment Communications

From the Desk of Kyle D. Riley: Generally, corporate attorney-client privilege encompasses certain communications with lower level employees.  In this case, the Washington Supreme Court was tasked with analyzing whether the corporate privilege encompasses postemployment communications between corporate counsel and former employees.

Claims Pointer: In this case of first impression arising out of a high school student’s permanent brain injury, the Washington Supreme Court held that corporate attorney-client privilege does not encompass postemployment communications with former employees.  The case serves as a warning to attorneys and corporations that sensitive discussions with former employees will likely be discoverable.

Newman v. Highland School District No. 203, No. 90194-5, Washington Supreme Court (October 20, 2016)

Matthew Newman (“Newman”) was a high school quarterback at Highland High School.  During a September 2009 Football game, he sustained a permanent brain injury.  Newman and his parents sued Highland School District No. 203 (“Highland”), alleging that Newman sustained a head injury during practice the day before the game, and the coaches permitted him to play in the game even though he exhibited symptoms of a concussion.

Newman’s attorney deposed the entire Football coaching staff employed at the time of Newman’s injury, including coaches who were no longer employed by Highland.  At the deposition, Highland’s attorney indicated he interviewed the former coaches before their depositions and was appearing on their behalf for the depositions.  Newman moved to disqualify Highland’s attorney from representing the former coaches on the grounds that there was a conflict of interest.  The trial court denied the motion but ruled that Highland’s attorney could not represent non-employee witnesses going forward.

Newman then sought...

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