Legal Mythbreakers

LEGAL MYTHBREAKERS By: Brad Fraser

Leitner Williams Dooley Napolitan LLC

PRIVILEGED MUCH?

Privilege in the Social Context

Social media continues to swirl with social commentary (and memes, of course) about “privilege.” However, long before social media, John Fogerty wrote and Credence Clearwater Revival recorded an interesting song called “Fortunate Son.” Those of you old enough to remember the song know what I am talking about. Those who are not old enough to remember, don’t Google the lyrics, actually listen to the song. Released near the height of controversy of the Vietnam War (although it never specifically mentions the War), it was one of the starkest statements of social criticism about the ultimate “privilege” at the time: who got sent to war and who did not.

Some folks are born made to wave the flag Oh, they’re red, white and blue And when the band plays Hail to the Chief Ooh they point the cannon at you, Lord It ain’t me, it ain’t me I ain’t no Senator’s son It ain’t me, it ain’t me I ain’t no fortunate one

Privilege in the Legal Context

Of course, in the legal world, the term privilege generally refers to communications, not people or circumstances. However, the people and circumstances involved are usually what determines whether a communication is privileged.

Tennessee Rule of Evidence 501 states that privileges are only recognized as provided by a constitution, statute, common law or other rules promulgated by the Tennessee Supreme Court. 1 The Advisory Commission Comments to the Rule contain a laundry list of several privileges that are provided by statute. However, common law privileges, for instance statements made in the course of judicial proceedings, are crucial for a practicing lawyer to know. 2

I read a recent opinion from by the Tennessee Court of Appeals about privileges with keen interest. Moore Freight Services Inc. v. Mize provided a veritable tutorial on numerous privileges, including attorneyclient, work product and common interest privileges. 3 A 38-page opinion, it is obviously too much material for me to properly address in this brief column. I highly recommend reading the entire opinion, if you are interested.

The underlying case had extremely capable counsel and the learned Chancellor working to resolve communications and documents subject to numerous issues of claimed privileges. The trial court granted a Motion to Compel certain communications, but also granted a Motion for Interlocutory Appeal to resolve the following issue:

Whether Moore Freight waived the work product, attorneyclient, and common interest privilege or protection by placing the internal investigation “at issue” in this litigation. 4

As an attorney who primarily represents defendants, the issues of common interest privilege were of most interest to me. The common interest privilege has been recognized by the Tennessee Supreme Court for over 50 years. 5 As noted in the opinion, the common interest privilege is recognized as an “extension of the attorney-client privilege.” 6 I have heard this privilege referred to as the “common defense privilege”. However, it is important to understand it exists not only for defendants, but for any party involved where “pooling of information around attorneys representing parties sharing a common legal interest in litigation.” 7 This could be co-defendants, co-Plaintiffs, or even one Plaintiff and one Defendant in a case involving third parties in the litigation.

The importance of the opinion to me is that it further details how information subject to the privileges is handled in discovery and at trial. As noted in the opinion,

If it is established that a portion of the requested documents are subject to the attorney-client privilege, a protective order as to those documents is in order... If it is established that a portion of the requested documents are work product, the burden shifts back to the party requesting discovery to establish that it is nonetheless entitled to the material. 8

Many lawyers just utter “work product” to shield production of such evidence, when communications may actually be more adequately protected under a claim of common interest privilege. Since the common interest privilege is an extension of the attorney-client privilege (and subject to much more protection than work product), parsing out and properly characterizing these communications is critical.

Another important distinction is that the privilege is not limited to the period when the proponents are “cooperating in a common defense.” It also includes prior confidential communications and documents “that are shared during the common enterprise.”9

Please note that this article is not an attempt in any form to set forth the legal requirements for claiming any of these privileges. The Court’s opinion in Moore Freight does an excellent job of that. Like John Fogerty, I am simply trying to spread awareness. And like his song, it seems to all depends on the people and circumstances involved.

1 Tennessee R. Evidence 501. 2 See, e.g., Lea v. White, 36 Tenn. (4 Sneed), 111, 114 (1856). 3 Moore Freight Servids, Inc. v. Grant Mize, et al., No. E2021-00590-COA-R9-CV, 2022 WL 325595 (Tenn. Ct. App. Feb. 2, 2022). 4 Id., at 1. 5 Vance v. State, 190 Tenn. 521, 529-30, 230 S.W.2d 987, 990-91 (1950). 6 Boyd v. Comdata Network, Inc. 88 S.W.3d 203, 212 (Tenn. Ct. App. 2002). 7 Boyd, 88 S.W.3d at 213. 8 Boyd, 88 S.W.3d at 221. 9 In re Grand Jury Subpoenas 89-3 & 89-4, John Doe 89-129, 902 F.2d at 249-50.