United States: Court Orders Production Of Notes Prepared By Plaintiff, Not On Request From Counsel

Originally published on the Employer's Law Blog

The New Jersey Appellate Division recently held that handwritten notes prepared by a plaintiff before she met with her attorney are not protected by the attorney-client privilege and must be produced in discovery, where the notes were not prepared at the attorney's direction or under his supervision. The case is Marshall v. JP Morgan Chase Bank, N.A.

Plaintiff Doreen Marshall worked as a loan officer for JP Morgan Chase ("Chase"). She filed a sexual harassment complaint against a co-worker with Chase's human resources department. She also maintained contemporaneous handwritten notes detailing the alleged harassment. Marshall eventually contacted an attorney and scheduled an initial meeting. She drafted a summary of her contemporaneous notes and brought this summary with her to the initial meeting with her attorneys. Marshall drafted the summary because she thought it would be "simpler" for her attorneys to understand.

During her deposition, Marshall testified that she threw away her original contemporaneous notes because they had been damaged in a flood. She further testified that she provided a copy of the summary of her notes to her attorneys after she had retained their counsel. In discovery, plaintiff refused to produce the summary of her notes because she asserted that it was protected by the attorney-client privilege. Chase moved to compel production of the summary.

In the trial court, the motion judge concluded that the summary of plaintiff's notes was protected by the attorney-client privilege, but the judge nevertheless required production of the summary because "it would be fundamentally unfair for one side to have the only relatively complete summary of what happened...and the other side not."

On appeal, the Appellate Division affirmed, but disagreed with the trial judge's reasoning. The Appellate Division held that the summary was not protected by the attorney-client privilege because neither the original contemporaneous notes nor the summary were prepared at the request of counsel. Marshall testified at her deposition that she had prepared the summary before she ever met with her attorneys. As a result, the court affirmed the judgment of the trial court and held that the summary of plaintiff's notes is discoverable. The court noted that preexisting documents do not gain the protection of the attorney-client privilege simply because they are passed between a client and an attorney.

In a footnote, the Appellate Division noted that plaintiff failed to argue that she had prepared the notes or the summary to prepare for litigation, which could have brought both documents within the scope of the privilege. The court refused to consider this argument because plaintiff did not raise it.

Employers should be mindful that communications among employees, even about pending litigation or other confidential matters, usually are not privileged unless the communications include an attorney and are made for the purpose of obtaining or providing legal advice.

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