Supreme Judicial Court Clarifies Scope Of Derivative Privilege

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Cases often turn on the scope of an exception. Recently the Massachusetts Supreme Judicial Court clarified the "sharply limited" scope of the derivative attorney-client privilege, an exception to the basic rule that disclosure of otherwise privileged communications waives the client's right to prevent disclosure of those communications to third parties, whether in litigation or otherwise - even if that disclosure proves fatal to the client's case. See DaRosa v. City of New Bedford, 471 Mass. 446, 463 (2015). The SJC recognized that exception in a 2009 decision, holding that a third party's involvement in otherwise privileged communications would not waive that privilege where "the [third party's] presence is 'necessary' for the 'effective consultation' between client and attorney" such as where the third party's "role is to clarify or facilitate communications between attorney and client." Comm'r of Rev. v. Comcast Corp., 453 Mass. 293, 307-08 (2009).

In DaRosa, the City of New Bedford cited the derivative attorney-client privilege as grounds (among others) not to produce communications from its environmental consultant, including a report analyzing the City's potential litigation exposure, in litigation concerning contamination at and around a site the city operated until the 1970s. See DaRosa, 471 Mass. at 462-63. The derivative attorney-client privilege should apply, the City argued, because the consultant "translated" site-related "technical information contained in laboratory data and field observations" for the city solicitor and "such assistance was necessary for the city solicitor to provide legal advice to the city." Id.

The SJC disagreed, providing a more cogent explication of the exception at issue in the process:

"[T]he derivative attorney-client privilege protects otherwise privileged communications between an attorney and client where, without the assistance of the third party, what the client says would be 'Greek' to the attorney, either because the client is actually speaking in Greek or because the information provided by the client is so technical in nature that it might as well be spoken in Greek if there were not an expert to interpret it for the attorney."

Id. at 463. Here, the derivative privilege did not apply, even if the consultant's analysis "were critical to the city solicitor's ability to effectively represent the city because the technical data would otherwise have been difficult to understand" because the consultant translated "public record technical data relating to the site, not confidential communications from the client." Id. at 463-64. The City, therefore, could not rely on the exception to withhold this potentially harmful information as attorney-client privileged. Id.

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