Court Denies Post-Job Confidentiality Privilege

     (CN) — A high school quarterback who suffered a permanent brain injury is entitled to discovery of communications between former coaches and the school district, a narrowly divided Washington Supreme Court ruled.
     Matthew Newman and his parents, Randy and Marla, sued Highland School District No. 203 for negligence after Newman was hurt during a game in September 2009.
     He claimed that the school district violated the Lystedt Law, which requires an athlete to be taken out of practice or a game after a possible concussion.
     Newman also alleged that he had suffered a head injury in practice on the previous day, but his coaches still allowed him to play in the game.
     When Newman’s counsel deposed the coaching staff, Highland’s counsel stated that it was representing the coaches.
     Newman argued that this was a conflict of interest, but the superior court disagreed. He then asked for discovery of communications between Highland’s counsel and the coaches.
     Highland refused, citing attorney-client privilege, but the court denied the claim and ordered discovery. The school district appealed.
     The Washington Supreme Court ruled Thursday in a 5-4 decision that Newman is entitled to communications with coaches who are no longer employed by the school district.
     “We decline to expand the privilege to communications outside the employer-employee relationship because former employees categorically differ from current employees with respect to the concerns identified in [precedent cases],” Justice Debra L. Stephens wrote for the court’s majority.
     Noting that “everything changes when employment ends,” Stephens added that “the former employee can no longer bind the corporation and no longer owes duties of loyalty, obedience, and confidentiality to the corporation.”
     She noted Highland’s argument that the former coaches could have vital information “and that their conduct while employed may expose the corporation to vicarious liability.”
     “The attorney-client privilege belongs solely to the corporation, and it may be waived or asserted solely by the corporation, even to the detriment of the employee,” Stephens wrote.
     Justice Charles K. Wiggins wrote the dissenting opinion, in which three of his colleagues joined.
     “I would hold that postemployment communications consisting of a factual inquiry into the former employee’s conduct and knowledge during his or her employment, made in furtherance of the corporation’s legal services, are privileged,” he wrote.
     Wiggins added, “Relevant knowledge obtained by an employee during his or her period of employment does not lose relevance simply because employment has ended.”

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