Independent Contractor Status Refutes Attorney-Client Privilege Claim
For the past few months I have subscribed to a Westlaw service that sends a daily email with links to cases in which the words ‘in-house,” and “lawyer” or “counsel” appear. Most of the cases aren’t very illuminating about how courts view in house lawyers. However, I have found two trends of interest. First, there are a lot of discovery disputes about production of in-house lawyers’ notes. And, second, when attorney fees are awarded, courts require opposing parties to pay attorney fees for time spent by in-house lawyers on litigation matters much more often than I expected. When I come across a case that seems to lay down some law instead of simply ruling on these points, I’ll do a post.
Meanwhile, I did come across an auto accident case, Stallings v. Werner Enterprises, Inc., 2008 WL 4078783, pending in the federal district court for Kansas, which illustrates one downside to identifying a worker as an independent contractor – it can refute a claim of attorney client privilege. Defendant Werner Enterprises’ in-house counsel interviewed an independent contractor driver as part of an accident investigation shortly after a truck/car accident. Plaintiff sought the notes of the meeting. The court ruled that the attorney-client privilege did not cover the interview – the driver wasn’t seeking legal advice from the lawyer and there was no confidential relationship. Because plaintiff demonstrated a need for the statements made shortly after the accident, the attorney’s notes were to be examined in camera to see if the statements could be separated from the attorney’s impressions. After the court’s review, only two paragraphs were redacted.
The case applies Kansas law, but might be thought of during accident or any other internal investigations.
