By: Elie A. Maalouf & Nick E. Abramson
Defense attorneys routinely assert the attorney-client privilege on behalf of their clients to preclude the disclosure of relevant facts despite the lack of any basis to do so. In medical malpractice cases, defense counsel often attempt to prevent their clients from answering deposition questions about their knowledge of the plaintiff’s subsequent treatment or conditions by asserting the attorney-client privilege. Similarly, defense attorneys frequently instruct their clients not to answer deposition questions regarding the clients’ knowledge about the prior testimony of the other parties to the litigation. In a recent medical malpractice case, for example, we deposed a defendant doctor and asked her what her understanding was about the prior testimony of our client. We made clear that we were only seeking what she was told about what our client testified to and that we did not want to know defense counsel’s thoughts, mental impressions, or comments about the testimony. Nevertheless, defense counsel instructed her not to answer based on the attorney-client privilege, arguing that the defendant’s knowledge of the testimony was protected from disclosure because defense counsel was the source of that knowledge. This is a common defense tactic and should be prohibited.