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Can Deposition Notes be Considered Privileged?

Attorney Holding Deposition Notes

During a deposition, opposing counsel may raise an objection whenever it is necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3). These objections are critical to ensuring a fair trial, but it’s easy to see that there’s quite a bit of grey area surrounding determinations of privilege. For example, can attorney-client privilege extend to notes taken in the course of discovery?

In this article, we’re going to explore the standards of privilege that apply to handwritten notes and review some recent court findings on the issue. Let’s get started!

Does Privilege Cover an Attorney’s Notetaking?

Have you ever taken handwritten notes while working on a case? Many lawyers automatically assume that their notes will qualify as ‘work-product’, even if the information referenced in the notes is not confidential. One recent court case suggests this is a dangerous assumption.

In Greyhound Lines, Inc. v. Viad Corp., 2016 WL 4703340 (D. Ariz. Sept. 8, 2016), the court  ruled that the attorney–client privilege did not cover in-house attorneys’ handwritten notations on non-privileged documents. While the notes may have been written during work hours, the court determined Arizona privilege law only protects ‘communications’. Attorney-client privilege did not apply because the defendant failed to provide evidence that the notations were ever communicated to anyone.

Does Privilege Cover a Litigant’s Notetaking?

When preparing for their deposition, most litigants will carefully review all documents and instructions from their attorneys. During this review process, it’s not uncommon for individuals to make notes for personal use. In fact, that is exactly what happened in Ford-Bey v. Professional Anesthesia Servs. of N. Am., LLC  (Pa. Super. Ct. Feb. 20, 2020).

During a Pennsylvania medical malpractice case, a defendant made notes on a medical chart. When the plaintiff requested the notes, defense counsel rejected the request based on the theory that “any notes taken while preparing for his deposition were attorney-client or work-product privileged regardless of whether they were communicated to the attorney”.

Ultimately, the court rejected this argument from the defense. She further stated that: “there is no evidence that the notes were communicated, which is the very essence of the attorney-client privilege.” (emphasis by the court). Based on this case, it’s clear that both litigants and attorneys must be prepared to prove that the privilege or work-product doctrines apply, rather than assuming the notes will be privileged by default.

Final Thoughts

Thanks for reading! We hope that we’ve given you some useful information about the protections and privileges granted to handwritten notes. If you enjoyed this article, let us know in the comments, and feel free to share it on social media. Lastly, when you’re ready to schedule your next deposition, consider partnering with an experienced legal support company like First Legal Depositions.

If you have questions on any of our services, please don't hesitate to get in touch with us.

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