In an October 20 ruling of great concern to ACC members, the Supreme Court of Washington State held 5-4 that post-employment communications between corporate counsel and former employees are not shielded by attorney-client privilege, rejecting the flexible approach to protecting privilege laid out in Upjohn v. US. The court states that Upjohn’s flexible approach could not be expanded to communications with former employees because their concerns differ from the concerns contemplated in Upjohn.
Judge Wiggins, in the dissenting opinion, disagrees with the majority’s adoption of a “bright-line rule” cutting privilege at the end of employment. He argues that communications regarding an inquiry of “conduct and knowledge” of a former employee during his or her employment are privileged.
ACC feels the majority decision is troubling and agrees with the dissenting opinion that attorney-client privilege should cover communications with ex-employees about their tenure with the company.
We would love to have members to let us know of any cases where parties attempt to rely on this case to discover privileged communication with former employees. Read the decision here.