Attorney Client Privilege is not under control of the defendant

For the protection of privilege to be applicable, the document or communication must be prepared for the attorney, not just given to the attorney

Nageotte v. Boston Mills Brandywine Ski Resort, et al., 2012 Ohio 6102; 2012 Ohio App. LEXIS 5266 (Ohio App 2012)

Plaintiff: Megan Nageotte

Defendant: Boston Mills Brandywine Ski Resort, et al., Raymond Conde, John Doe employees 1-5, John Doe individuals 1-5, and John Doe entities 1-5,

Plaintiff Claims: Negligence

Defendant Defenses: Documents were protected by Attorney Client Privilege

Holding: For the Plaintiff. No privilege applied to ski area witness statements

There is a misunderstanding about what attorney-client privilege is and how it works. Simply, a communication, of any type, prepared for an attorney during or in anticipation of litigation is protected because of attorney-client privilege. That means that no one can be told of or about or see the communication.

In this case, the plaintiff was injured when she did not let go or could not let go of a rope tow at the defendant ski area. She went around the bullwheel causing her injuries to her hand. She sued claiming the ski area and known, and unknown employees (John Does) were negligent.

During the discovery phase of the litigation, the plaintiff requested copies or to see the witness statements taken by an employee at the time of the accident. The ski area refused to provide them saying the witness statements were protected by attorney-client privilege, so she could not have them.

Ms. Nageotte [plaintiff] sought the witness statements of Mr. Conde [ski area employee and defendant] because Mr. Conde was working at the top of the slope where Ms. Nageotte was injured. Further, Ms. Nageotte believes that Mr. Conde failed to press an emergency stop button or otherwise prevent Ms. Nageotte’s injuries.

The plaintiff filed a motion to get the statements which was granted by the trial court. The defendant appealed the trial court’s motion to the appellate court.

Summary of the case

The issue before the appellate court was simple. Was the witness statements taken at the time of the accident by an employee of the ski area were protected by attorney-client privilege.

The burden to prove a document is protected is on the person attempting to protect the document. Consequently, the burden to prove the witness statements should not be provided to the plaintiff was on the ski area. The ski area’s argument was because the witness statements were provided to the attorney providing the defense to the ski area, the documents were protected.

Brandywine and Mr. Conde assert that Mr. Conde’s witness statements are protected by the attorney-client privilege because the statements were at some point provided to Brandywine’s and Mr. Conde’s attorney. Brandywine and Mr. Conde submitted the affidavit of their attorney, who averred that he is the attorney representing the defendant in the action and that Brandywine and its liability insurer provided him with Mr. Conde’s witness statements “for the purpose of defending this action.”

The lift supervisor of the defendant ski area testified about the witness statements and why they were taken.

Mr. March testified that: (1) the ski patrol, an all-volunteer organization, typically obtains witness statements; (2) Mr. March typically reviews those witness statements; (3) the witness statements are obtained and preserved as a part of Brandywine’s insurance program; (4) the statements are turned over to the insurance carrier if there is a claim made; and (5) the witness statements are turned over to counsel if necessary to defend against any litigation.

None of the reasons for the statements or timing of the statements would support an argument that the statements were privileged.

In order for a document to constitute a privileged communication, it is essential that it be brought into being primarily as a communication to the attorney.” (Emphasis added.) In re Klemann, 132 Ohio St. 187, 192, 5 N.E.2d 492 (1936). “A document of the client existing before it was communicated to the attorney is not within the present privilege so as to be exempt from production. But a document which has come into existence as a communication to the attorney, being itself a communication, is within the present privilege.”

That means that if the documents were to be privileged, when the witnesses were preparing the statements, they had to be done so knowing they were for the attorney, handed or mailed to the attorney and not seen by anyone other than the attorney for the ski area.

Just turning something over to an attorney does not make it privileged.

The documents were not made in anticipation of litigation because at the time of the accident, there was no litigation and the ski area had not been informed of litigation.

The people preparing the statements, the witnesses, were not preparing those statements for an attorney. They were preparing them for the ski area. There was probably nothing on the paper or form it indicating that the statements were for an attorney, probably only the name of the ski area.

Shortly after the incident, Mr. March began to take witness statements. He agreed during his deposition that part of his job was to take witness statements to understand what happened and that Brandywine would want to understand what happened when someone was injured irrespective of whether the person filed a claim. Moreover, he agreed that, at the time the witness statements were made, he did not know a claim or lawsuit was coming. Further, it is unclear when the statements were handed over to the insurance company and the attorney.

So Now What?

Simply put, for a statement to be protected, it must be made for and given to an attorney. No one else can see the document. The person making the communication must know about the litigation and know they are making the communication for the attorney.

The person making the communication must know that attorney-client privilege is going to apply to the communication when the document is being made for privilege to apply.

If you have an incident where you have a belief that (1) litigation is going to occur and (2) there is information your attorney may need and (3) you don’t want anyone else to know you must contact your attorney immediately. Your attorney must direct the creation of and transmittal of the communications.

In most states, documents prepared for insurance companies, even after litigation has started are not protected by attorney-client privilege.

Attorney-client privilege is a basic right that has an unbelievable power to protect. However, to fall within that protection each step must be met. Courts today, in order to facilitate discovery, will rule against protecting a document. If you want to protect a document, you must work with your attorney before the communication is prepared.

If you have a disaster, call your attorney first and then call your insurance company. Only communicate to anyone other than your attorney, only what your attorney tells you to communicate. Communicate everything to your attorney.

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