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In most situations, a client's denial that an
attorney-client communication occurred does not waive the
client's privilege. Such a denial clearly does not disclose any
privileged communications. And if such a denial waived the
privilege, it is easy to envision a clever adversary creating
mischief by asking deposition questions that would elicit
denials.
However, a different rule applies if the client seeks some
advantage by denying that a privileged communication occurred. In
Adam Friedman Assocs. LLC v. MediaG3, Inc., No. 10 Civ.
5350 (JPO), 2012 U.S. Dist. LEXIS 62591 (S.D.N.Y. May 1, 2012),
Judge Oetken dealt with a client's effort to vacate the
court's earlier entry of summary judgment against it. The
client argued that its previous lawyer had never advised it to
oppose the summary judgment motion. The court found that the client
had "directly put at issue the question [of] whether it
received notice from its former attorney," so it would be
"unfair" for the client to withhold the substance of
otherwise privileged communications in which the former lawyer
might have advised the client of its obligation to oppose the
summary judgment motion. Id. at *11, *12.
Waiver issues often focus on fairness, and in situations such as
this even the denial of a privileged communication can waive the
privilege.
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Under what is commonly called the Sporck doctrine, the opinion work product doctrine can sometimes protect the identity of certain documents that do not themselves deserve intrinsic privilege or work product protection, as long as the adversary also has the documents and the identity could reflect a lawyer's opinion.
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In Upjohn Co. v. United States, 449 U.S. 383 (1981), the court interpreted federal common law as extending privilege protection to communications between a company's lawyer and any level of employee, if that employee has facts the lawyer needs when advising the corporate client.
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