One Night in November, Part 1: Is a Recorded Attorney-Client Interview Discoverable?

This post begins a series that all arose from a single case I handled.  The facts were tragic, but intriguing because they generated geeky legal issues.  I decided to deconstruct this case and share it for several reasons.  One is that the legal industry rarely performs a post file debrief.  What went right, what didn’t, what can we do differently or better in the future?  A second is the life cycle of complex cases is often measured in years.  Lawyers come and go, but never see the end result.  They may never know why the question they asked at a deposition two years ago was really important or why a disclosure early in the case had any significance.  By looking back, I hope this helps newer lawyers see forests instead of trees.

The third reason for sharing is this: details matter.  Close may count in horseshoes and hand grenades, but not if you want to play at this level.  My opposing attorney seemed semi-share that perspective, making the case intellectually stimulating.  It is exhausting and sometimes frustrating to push and be pushed to that level.  But it can also be intellectually rewarding, especially when the lawyers are relatively evenly matched.  I hope all of you have the chance to litigate a case like this one with an opposing counsel as talented and professional as I had.  She litigated hard, but fairly, and was nothing short of professional throughout.  As I stated to her during the case, this was the way litigation is supposed to be.

As a final housekeeping matter, all names have been removed because they are irrelevant to this blog’s purpose.  Also, neither side had perfect facts in this case, but both knew it and the case resolved just before trial.

The Accident

This series concerns a single motor vehicle accident that killed one of the two people involved.  When something that serious happens, some clients will immediately hire me to lead their investigation.  I was hired for this matter 20 to 30 minutes after the accident happened.  My phone rang and five minutes later I was in my car going to the scene to start the investigation.

For general factual background, Driver was driving Company’s Vehicle, had been dispatched by Company, and was definitely within the course and scope of employment.  While driving Vehicle to perform his task, Driver struck Pedestrian and killed him.  I will provide additional facts in each post as relevant to the topic.

Is a Recorded Attorney-Client Interview Discoverable?

Like a typical fatal investigation, police detained Driver for an interview at the scene.  He was then released.  Afterwards I was able to privately interview him.  There were five people in the room: 1) Me; 2) Driver; 3) Company Risk & Claim Director; 4) Company Security Director; and 5) Security Officer who was part of investigation.  I specifically arranged for an audiovisual recording of the interview because notes are nice, but note taking distracts from the interview, the notes themselves are never as accurate as a recording, and the way someone says something is just as important as the words they speak.  The fact that this interview occurred and was recorded was never hidden during the discovery process,[1] so Pedestrian sent a request for production for the recording itself.  My clients objected, asserting both the attorney-client and attorney work-product privileges.

A motion to compel was filed.  Pedestrian made two arguments: 1) the privileges were waved because the substance of the interview had already been disclosed; 2) the recording was not created but for the prospect of litigation.

  • What discovery did I permit about the recording?

My clients’ first disclosure affirmatively produced Security Officer’s report that contained Driver’s factual statements made during my interview about what happened in the accident.  Why disclose that report?  Facts are never privileged and the report contained only facts.  Three of the people in the room were eventually deposed: Driver, Company Risk & Claim Director, and Security Officer.  Each was asked what I thought were very carefully phrased factual questions to which no privilege applied.  I did not fault opposing counsel for that; it was just good lawyering.  There is nothing wrong with walking right up to the line, just don’t cross it.

Inevitably, Opposing Counsel tried to test the line.  I probably would have too because, why not?  To date, this was the only time that I ever instructed a witness not to answer a question.

2 Q. So if he wasn’t asked the speed he was
3 traveling or whether he was under the influence of
4 anything, what type of questions were asked of him?
5 MR. LOWRY: I got to object at that point.
6 At that point it’s either attorney-client or attorney
7 work product.· I haven’t objected thus far because the
8 questions you’ve been asking have asked for factual
9 information.· That is never privileged, what a person
10 said.· But now you’re asking for questions that I
11 posed to [Driver], so I have to instruct the witness
12 not to answer that particular question.
13 MS. [Opposing Counsel]: Let’s go off record for just a
14 minute.

18 MS. [Opposing Counsel]: All right. We’re going to go
19 back on the record, and we took a break. We did after
20 an objection regarding my questioning to [Security Officer] about
21 the questions that were asked of [Driver] during his
22 interview in the casino security office where [various people] were present
24 for the questioning of [Driver].
25 And off the record, we kind of discussed it’s
1 kind of a hybrid issue in which Mr. Lowry is asserting
2 a privilege for the questioning that he did to [Driver]
3 during that interview; is that fair?
4 MR. LOWRY: That’s fair, and off the record,
5 the solution we’ve come up with for the deposition is
6 [Security Officer] will be able to testify about at least
7 the questioning that [Company Risk & Claim Director] posed as opposed to
8 what I did during the interview.
9 MS. [Opposing Counsel]: Correct.
10 BY MS [Opposing Counsel]:
11 Q. So to finish up that line of questioning, do
12 you recall the questions that [Company Risk & Claim Director] asked of
13 [Driver]?
14 A. No.
15 Q. Do you have any recollection of any of the
16 specific questions that he posed to [Driver]?
17 A. Mr. [Company Risk & Claim Director]?
18 Q. Yes.
19 A. No.[2]

  • Did allowing that deposition questioning waive the privilege?

“The purpose of the attorney-client privilege is to encourage clients to make full disclosures to their attorneys in order to promote the broader public interests of recognizing the importance of fully informed advocacy in the administration of justice.”[3]  Nevada codified this privilege.

A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications:
1.  Between the client or the client’s representative and the client’s lawyer or the representative of the client’s lawyer.
2.  Between the client’s lawyer and the lawyer’s representative.
3.  Made for the purpose of facilitating the rendition of professional legal services to the client, by the client or the client’s lawyer to a lawyer representing another in a matter of common interest.[4]

NRS 49.105(1) permitted my clients to claim the privilege.  “A communication is ‘confidential’ if it is not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.”[5]  “Mere facts are not privileged, but communications about facts in order to obtain legal advice are.”[6]

NRS 49.045 defines a client as “a person, including a public officer, corporation, association or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.”  Pedestrian did not dispute that I had an attorney-client relationship with Driver and Company. He instead argued the Security Officer’s presence during the interview voided the privilege because he was not a “managing speaking agent,” therefore he was not a “client” and there was no privilege to discussions that occurred in his presence.

Pedestrian’s argument relied solely upon Palmer v. Pioneer Inn Assocs., Ltd., which interpreted SCR 182’s prohibition against ex parte contact with a person represented by counsel.[7]

The primary purpose of the rule is to protect the attorney-client relationship from intrusion by opposing counsel.  It protects parties from unprincipled attorneys and safeguards the attorney-client privilege.  It also promotes counsel’s effective representation of a client by routing communication with the other side through counsel, who can present the information in a way most favorable to the client.[8]

Palmer then adopted the managing-speaking agent test for evaluating when employees of an organization are considered represented and subject to SCR 182’s prohibition.[9]

I argued Palmer was irrelevant because it concerned the scope of SCR 182’s prohibition against ex parte contact.  The issue in Pedestrian’s motion to compel did not allege or concern ex parte contact.  The issue instead was if an audiovisual recording of a client consulting with a lawyer is protected from disclosure by the attorney-client privilege.

I instead relied on Wynn Resorts, Ltd. v. Dist. Ct. which stated “[c]ommunications may be disclosed to other persons within a corporation or legal team in order to facilitate the rendition of legal advice without losing confidentiality….”[10]  I argued the clients’ actions were consistent with that standard.  Security Officer was part of Company’s response to the accident that included retaining me.  Wynn also required that the disclosure of communications “must only be to the limited group of persons who are necessary for the communication, and attempts must be made to keep the information confidential and not widely disclosed.”[11]  Security Officer’s report contained information about facts gathered during Driver’s interview, but it never discussed my questions, thoughts, or analysis.  Further, Company made efforts to keep the audiovisual recording of the interview confidential, such as its objections in to the request for production and during the deposition.

  • Did allowing disclosing Security Officer’s report waive the privilege?

Pedestrian argued disclosing Security Officer’s report waived the privilege because it contained facts discussed in the interview.  I disagreed.  “Mere facts are not privileged, but communications about facts in order to obtain legal advice are.”[12]  Pedestrian did not argue Security Officer’s report contained or divulged any attorney-client communications.  If it contained just facts, the report was not privileged, so Company disclosed it.  But disclosing a factual document did not waive the attorney-client privilege that protects communications about those facts.

  • Did Company put the interview at issue?

Pedestrian then argued the privilege was waived because Company put the interview at issue.  “The at-issue waiver doctrine applies where the client has placed at issue the substance or content of a privileged communication.”[13]  “A client only waives the attorney-client privilege by expressly or impliedly injecting his attorney’s advice into the case.”[14]  In Wynn, the dispute concerned a document named the Freeh Report.  Wynn relied upon the document to support its claims.  As a publicly traded company, after Wynn filed suit it “filed notice of its lawsuit with the Securities and Exchange Commission, and attached a copy of the Freeh Report. Wynn Resorts also allegedly provided a copy of the Freeh Report to the Wall Street Journal.”[15]  The Supreme Court concluded the attorney-client privilege was waived.

Wynn Resorts disclosed the Freeh Report by voluntarily and intentionally placing protected information into the litigation. Wynn Resorts voluntarily filed its complaint, seeking to have the court affirm its business decision and, in doing so, attached a copy of the Freeh Report. …  [T]he disclosed Freeh Report describes the reason for the investigation, directly quotes concerns and observations, summarizes the content of emails from identified individuals, identifies persons interviewed, and sets forth investigative results. Further, not only did Wynn Resorts provide this specific information to the court and regulatory agency, but … the disclosure led to a public announcement when Wynn Resorts allegedly disclosed the Freeh Report to the press.[16]

Pedestrian did not allege or present evidence indicating my clients took any equivalent action.  Pedestrian did not cite a claim or defense my clients asserted that relied, in any way, upon the content of my meeting with Driver.  Instead, my clients’ defenses relied upon the facts of the accident, which were not privileged.

  • Was the meeting in anticipation of litigation?

Pedestrian’s last argument was that the attorney work-product doctrine did not apply because my meeting with Driver was not in anticipation of litigation.  “The work-product doctrine protects more than just communications between a client and attorney, and is thus broader than the attorney-client privilege.  At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.”[17]  NRCP 26(b)(3) states

a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s [attorney] only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

The rule “protects documents with two characteristics: (1) they must be prepared in anticipation of litigation or for trial, and (2) they must be prepared by or for another party or by or for that other party’s representative.”[18]

In Wynn, Nevada adopted “the ‘because of’ test for determining whether work was done ‘in anticipation of litigation.’”[19]  Using that test, “documents are prepared in anticipation of litigation when in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.”[20]  “The anticipation of litigation must be the sine qua non for the creation of the document—but for the prospect of that litigation, the document would not exist.”[21]  This standard is weighed using a totality of the circumstances standard.[22]  Courts using the standard should “look to the context of the communication and content of the document to determine whether a request for legal advice is in fact fairly implied, taking into account the facts surrounding the creation of the document and the nature of the document.”[23]  They should also evaluate “whether a communication explicitly sought advice and comment.”[24]

Pedestrian argued that the audiovisual recording would have been created anyway in the normal course of Company’s business.  But Pedestrian provided no evidence that it was a standard part of Company’s operations to 1) hire outside counsel after an accident; 2) who comes to the scene of accidents; 3) and then interviews his clients, including the employee involved; 4) in a room where the interview is recorded.  We argued the totality of the circumstances, an accident involving a fatality and outside counsel being immediately retained, indicate Company sought legal advice for itself and Driver.  The facts surrounding the recording’s creation indicated it was protected work-product.

This argument was supported by a substantively similar case, Byrd v. Wal-Mart Transp.[25]  A Wal-Mart tractor-trailer collided with a van and killed the van’s passengers.  “Due to the severity of the accident, in-house Wal-Mart lawyers ‘immediately’ became involved in the case, and local counsel – ‘engaged to assist in anticipation of possible litigation’ — arrived at the accident scene within hours of the collision.”  The discovery dispute concerned from Wal-Mart’s investigation after the accident.  A 30(b)(6) designee was testified about whether Wal-Mart concluded the accident was preventable.  The dispute arose when the designee was asked if Wal-Mart had attributed fault to its driver.  Wal-Mart objected that the response was privileged.

The court agreed.  “Wal-Mart’s counsel correctly concluded that the information plaintiffs sought was protected by the work product immunity, which shields certain trial preparation materials, mental impressions, and legal theories of defendant’s agents and attorneys from discovery.”  “Here, plaintiffs’ question did not seek unprotected facts. Instead, it invited the deponent to testify as to mental impressions of Wal-Mart’s agents and counsel.”[26]  Applied to my case, Pedestrian wanted to know what I asked and said to Driver and Company.  I argued those were expressly protected as work product under Byrd.

Byrd then rejected Plaintiffs’ argument that the work-product doctrine did not apply because the information would have been generated in the normal course of business anyway.  The court assessed this against the same standard Nevada has adopted.  “The Court is not persuaded. The accident involved fatalities, prompting the near instantaneous involvement of a legal defense team, clearly in preparation for future litigation.”  The court cited approvingly to Wal-Mart’s deposition objection that indicated “Wal-Mart was willing to provide factual information, including information that was discovered during its accident review, but properly instructed its deponent not to answer on the issue of any legal fault assessment.”

This is exactly what Company did in my case.  It did not object to factual discovery, but it did object to questions about what I asked and discussed with Driver during the meeting.  Company objected to providing the audiovisual recording of that meeting because the recording contained information protected by both the attorney-client and work-product doctrines.

What happened?

The motion to compel was denied.  Pedestrian objected to the district court, who affirmed the denial.  To my surprise, no writ petition was filed.

[1] Others may have objected, and had valid reasons to do so, but I did not for reasons discussed below.
[2] I didn’t know how he was going to answer that question, but the compromise seemed appropriate.
[3] Wynn Resorts, Ltd. v. Dist. Ct., 133 Nev. Adv. Rep. 52, 399 P.3d 334, 341 (2017).
[4] NRS 49.095.
[5] NRS 49.055.
[6] Wynn, 399 P.3d at 341.
[7] 118 Nev. 943, 945, 59 P.3d 1237, 1238 (2002). SCR 182 was later superseded by NRPC 4.2.
[8] Id. at 948, 59 P.3d at 1240.
[9] Id. at 960-61, 59 P.3d at 1247-48.
[10] Wynn, 399 P.3d at 341.
[11] Id.
[12] Id.
[13] Id. at 345.
[14] Id.
[15] Id. at 339.
[16] Id. at 346-47.
[17] Id. at 337.
[18] Id. at 347.
[19] Id.
[20] Id. at 348 (quotation and citation omitted).
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] No. CV609-014, 2009 U.S. Dist. LEXIS 87356, 2009 WL 3055303 (S.D. Ga. Sep. 23, 2009).
[26] (emphasis in original).