Courts wrestle with the “facts” versus “communications” dilemma: part two | McGuireWoods LLP

The last weeks Privilege Points describes a court’s careful delineation between the logistics (time, place, etc.) of a privileged communication and the explicit or implicit privileged content of those communications. The stakes naturally become higher if the client is seeking a logistically or content-based litigation advantage.

In Klein v. Paskolite, LLC, the defendant accused of a fraudulent transfer “admitted as a defense that the transfers were made in good faith, and . . . pointed to his consultation with counsel as evidence of that good faith”. Case No. 2: 19-cv-00832-DN-PK, 2022 US Dist. LEXIS 11345, at *1-2 (D. Utah 19 Jan. 2022) (footnote omitted). But the defendant’s attorney objected on grounds of privilege to whether the company “relyed on communications it received from its attorney.” Identifier. at 7 O’clock. Unsurprisingly, the court found that the defendant’s “good faith” defense had waived the protection of its privilege as to the content of the communication – flatly rejecting the defendant’s argument “that it had failed to cause the “substance” of the communication, but merely disclosed the fact that a communication had been made.” Identifier. at 6. The court explained that “[t]he mere fact that communication has been established between [defendant] and his attorney has little to do with a bona fide defense. What is relevant is what was said in that communication.” Identifier. at 7 O’clock.

It can be difficult to distinguish between the logistics and the content of a communication, but litigants should not expect to gain legal advantage by delicately manipulating the distinction.

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