Newman v. Highland School District No. 203
186 Wash. 2d 769
| Wash. | 2016Background
- Highland School District coached Matthew Newman; Newman suffered a traumatic brain injury during a game after allegedly sustaining a head injury at practice the prior day; plaintiffs sued for negligence under the Lystedt law.
- Several former Highland coaches (no longer employed) were deposed; Highland’s counsel had interviewed them beforehand and appeared for their depositions.
- Newman moved to disqualify Highland’s counsel for conflict; the trial court denied disqualification but ordered Highland’s counsel not to represent non-employee witnesses going forward.
- Newman sought discovery of counsel’s communications with the former coaches that occurred after the coaches left employment; Highland moved for a protective order asserting corporate attorney-client privilege.
- The superior court denied the protective order and ordered disclosure of postemployment communications (except those during periods counsel formally represented the former coaches); Highland appealed to the Washington Supreme Court.
Issues
| Issue | Plaintiff's Argument (Newman) | Defendant's Argument (Highland) | Held |
|---|---|---|---|
| Whether corporate attorney-client privilege shields communications between corporate counsel and former employees made after employment ended | Postemployment communications are not privileged because former employees are third-party fact witnesses and no longer agents of the corporation | Upjohn’s flexible, functional approach supports extending the corporate privilege to postemployment communications with former employees who possess relevant information | Privilege does not broadly protect postemployment communications; trial court correctly denied protective order for such communications |
| Scope of privilege for communications that occurred while employee was employed but later disclosed after termination | Facts learned during employment that were privileged remain privileged after employment ends | Agrees that communications during employment remain privileged; seeks to extend protection to later interviews | Communications protected during employment remain privileged (durable privilege), but privilege does not generally attach to new communications after employment ends |
| Whether discovery stay and contempt/sanctions rulings were affected by privilege ruling | Discovery into postemployment communications should be allowed; fees/sanctions addressed separately | Opposed discovery and sought stay; maintained position was reasonable | Discovery stay lifted; superior court’s denial of protective order affirmed; fee request denied as Highland’s position was reasonable on a novel issue |
| Standard to determine privilege when former employees retain ongoing agency duties | (Implicit) If a continuing agency or duties exist, privilege may apply | Privilege should be limited to situations where agency continues or Upjohn factors are satisfied | Privilege may apply in limited circumstances (e.g., when communications occurred during a period counsel formally represented the former employee or where continuing agency exists), but not categorically for all postemployment communications |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (establishes flexible, functional approach to corporate attorney-client privilege)
- Youngs v. PeaceHealth, 179 Wn.2d 645 (Wa. Supreme Court adopting Upjohn’s approach in state context)
- Wright v. Group Health Hosp., 103 Wn.2d 192 (earlier WA case endorsing Upjohn framework)
- Dietz v. John Doe, 131 Wn.2d 835 (party claiming privilege bears burden; privilege is narrow)
- Pappas v. Holloway, 114 Wn.2d 198 (privilege is narrowly construed and limited to its purpose)
- In re Coordinated Pretrial Proceedings in Petrol. Prods. Antitrust Litig., 658 F.2d 1355 (former employees’ privileged communications obtained during employment remain privileged)