Within many areas of legal proceedings, a well-known legal area is attorney-client privilege. Referring to a given client’s right to disclose information to their attorney in a confidential and non-incriminating manner, attorney-client privilege extends to several areas and has a few different potential impacts.
At Phoenix Deposition Services, we’re happy to help with video depositions, court reporters and numerous related deposition services – areas where certain unique questions are often raised regarding attorney-client privilege and whether it extends to certain parts of a deposition. Namely, can various forms of notes taken during a deposition be considered privileged under this right? Here’s a quick primer to help you understand.
Standard Attorney-Client Privilege
As we noted above, attorney-client privilege – also known as lawyer-client privilege – is a common law in the US. It refers to a client’s right to refuse to disclose and prevent any person from disclosing confidential communications between themselves and their attorney.
This rule goes back centuries, allowing clients to have frank conversations with their attorneys without fear of reprisal. This allows attorneys to be more effective in representing their clients in several ways. There are certain areas where attorney-client privilege does not apply, but these don’t tend to come up very often in deposition circumstances.
Our next couple sections will go over a couple common question areas when it comes to whether notes taken during depositions qualify as privileged under attorney-client privilege.
Attorney Notetaking
We’re commonly asked by attorneys who utilize our deposition and court reporting services whether the handwritten or typed (often on a phone) notes they take during a deposition or within a case are part of attorney-client privilege. Some automatically assume this will qualify as “work-product” even if the information in the notes isn’t confidential.
However, certain recent court rulings have thrown this assumption into question. Some states have courts that have determined that privilege law only protects “communications” between the client and attorney, not notes that were created solely by the attorney and not communicated to anyone. As with anytime we’re asked this question, we strongly recommend attorneys check recent case law and precedent in their state for this area before proceeding.
Litigant Notetaking
What about litigants who may take their own notes? This is a common process among litigants, who will be reviewing deposition notes and instructions from their attorney and make want to take personal-use notes as they do so. And like with the above area, many courts have found issues here if the information on the notes wasn’t “communicated” between the client and attorney, in which case they will not be covered by attorney-client privilege. However, if sufficient evidence can be shown that both litigants and attorneys discussed the notes together, they are likely to be covered.
For more on which kinds of deposition notes may or may not qualify under the attorney-client privilege, or to learn about any of our deposition solutions or court reporter services, speak to the staff at Phoenix Deposition Services today.
