In a majority decision involving a student athlete’s concussion-related lawsuit against a school district, the Washington Supreme Court has ruled that communications between the school district’s attorney and former coaches employed by the district are not shielded by the attorney-client privilege.
In so ruling, the court conceded that it “follows a flexible approach to application of the attorney-client privilege in the corporate context.” However, the privilege “does not broadly shield counsel’s post-employment communications with former employees.”
Highland High School quarterback Matthew Newman and his parents claimed in a lawsuit that Newman suffered a permanent brain injury while playing in a high school football game in 2009, one day after he allegedly sustained a head injury at football practice. Specifically, the plaintiffs alleged that the Highland School District No. 203 violated Lystedt law, RCW 28A.600.190, which requires the removal of a student athlete from competition or practice if he or she is suspected of having a concussion.
In pre-trial proceedings, the district moved for a protective order to prevent the plaintiffs from obtaining discovery of communications between the school district’s counsel and former coaches during time periods when the former coaches were not represented by the school district’s counsel. The state court judge denied the motion and the school district appealed.
In reviewing the appeal, the court noted that the “issue is whether postemployment communications between former employees and corporate counsel should be treated the same as communications with current employees for purposes of applying the corporate attorney-client privilege.” For the reasons mentioned above, the majority sided with the plaintiffs.
In the dissenting opinion, the minority disagreed “with the majority’s decision to adopt a bright-line rule that will cut off the corporate attorney-client privilege at the termination of employment, and will exclude from its scope all post-employment communications with former employees, even when those employees have relevant personal knowledge regarding the subject matter of the legal inquiry and even though had they remained employed, such communications with counsel would have been privileged under (Upjohn Co. v. United States, a U.S. Supreme Court Case).
“Instead, I would conclude the scope of the attorney-client privilege and the decision as to whether to extend its protections to former employees is based on the flexible approach articulated in Upjohn. Under this flexible analysis, I would hold that postemployment communications consisting of a factual inquiry into the former employee’s conduct and knowledge during his or her employment, made in furtherance of the corporation’s legal services, are privileged.”
Matthew A. Newman et al., Respondents, v. Highland School District No. 203, Petitioner.; S.Ct. Wash.; NO. 90194-5, 2016 Wash. LEXIS 1135; 10/26/16
Attorneys of Record: (for petitioner) Mark S. Northcraft and Andrew T. Biggs (of Northcraft Bigby & Biggs PC). (for respondents) Richard H. Adler, Arthur D. Leritz, and Melissa D. Carter (of Adler Giersch PS); Frederick P. Langer and Michael E. Nelson (of Nelson Blair Langer Engle PLLC); and Howard M. Goodfriend, Ian C. Cairns, and Catherine Wright Smith (of Smith Goodfriend PS). (on behalf of Washington State Association for Justice Foundation, amicus curiae) Bryan P. Harnetiaux and Daniel E. Huntington. (on behalf of Washington State Association of Municipal Attorneys, amicus curiae) Daniel G. Lloyd and Milton G. Rowland. (on behalf of Washington Employment Lawyers Association, amicus curiae) Blythe H. Chandler and Jeffrey L. Needle. (on behalf of American Civil Liberties Union of Washington, amicus curiae) Margaret Chen and Nancy Lynn Talner.
