Chapter 19 Presence of Third Parties

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 19

PRESENCE OF THIRD PARTIES

19.1 INTRODUCTION

Although the attorney-client privilege primarily depends on content rather than context, a communication's context can sometimes impact privilege protection issues.

19.2 "EXPECTATION OF CONFIDENTIALITY" ELEMENT

What could be called the "expectation of confidentiality" privilege element extends privilege protection only to communications that the client intends to remain confidential.

• One court used a useful phrase—warning that clients wishing to create and preserve privilege protection "must treat confidentiality of attorney-client communications like jewels—if not crown jewels." ¹

19.3 CHARACTERIZING THIRD PARTIES' INVOLVEMENT

Given the importance of this confidentiality expectation, courts frequently must assess whether third parties participating in otherwise privileged communications are inside or outside privilege protection.

• If such third parties are inside privilege protection, their participation in otherwise privileged communications does not abort the privilege protection—but the opposite conclusion results in the privilege's unavailability for such communications.

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19.4 EXPECTATION OF CONFIDENTIALITY VERSUS WAIVER

The "expectation of confidentiality" element differs from waiver principles discussed in Chapter 23 through 31.

The privilege never protects communications in the presence of third parties outside privilege protection.

• In contrast, a waiver can occur upon disclosure of pre-existing privileged communications to someone outside privilege protection.

The "bottom line" is the same in each situation—the privilege does not protect the communications.

• However, waiving an existing privilege protection creates the risk of a subject matter waiver—which sometimes requires litigants to disclose additional privileged communications on the same subject. Chapter 30 discusses that issue.

19.5 SLOPPY HANDLING OF PRIVILEGED COMMUNICATIONS

In some situations, courts find that clients' sloppy handling of otherwise privileged communications means that the clients fall short of the "expectation of confidentiality" element.

• In extreme circumstances, this can abort privilege protection even without disclosure of the communication to someone outside privilege protection.

• Of course, the issue never arises unless adversaries find the communication or learns of the sloppy handling.

Courts usually assess the reasonableness of clients' steps to preserve confidentiality.

• For instance, leaving a privileged communication on a desk where adversaries might find it could forfeit the privilege, while leaving a computer password in the desk might not have the same effect—because clients would not expect adversaries to search for the password and wrongfully gain access to the clients' computer.

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19.6 UNINVITED THIRD PARTIES

Uninvited third parties' presence during otherwise privileged communications can abort privilege protection. An uninvited third party's obvious presence during otherwise privileged communications generally forfeits privilege protection. [19.601]

Courts disagree about whether the adversary must prove that such an obvious uninvited third party actually overheard the otherwise privileged communications. [19.602]

• Some courts seem to require only proof that such an obvious third party was present, while some courts use almost a "reasonable man" standard in determining if clients communicated where they might have been overheard.

• Some courts seem to find the privilege unavailable only if the adversary presents evidence that an obvious third party actually overheard the communications.

Privilege protection usually survives the presence of eavesdroppers or other uninvited third parties whose presence is not obvious. [19.603]

19.7 INVITED THIRD PARTIES

The privilege might or might not protect communications in the presence of invited third parties—depending on their role. [19.701]

Courts analyzing the effect of invited third parties' presence during otherwise privileged communications must...