Madison - St. Clair Record

Sunday, August 18, 2019

District judge rules there is no attorney-client privilege when third party is present

By Dee Thompson | Aug 1, 2017

BENTON - Magistrate Judge Reona Daly held that a woman suing Fare Foods for alleged sexual harassment waived attorney-client privilege during her first meeting with attorney Kevin Kaufhold because her mother was present. 

During plaintiff Amy Swyear's deposition, she was asked by defense attorney Shari Rhode whether a third party was present at the meeting. Swyear answered that her mother was present. 

Rhode then asked what was discussed during the initial meeting with Kaufhold, who objected to the question based on attorney-client privilege. 

Kaufhold instructed Swyear not to answer the question. 

Daly wrote that Illinois law holds that “the attorney-client privilege will not shield from disclosure statements made by a client to his or her attorney in the presence of a third party who is not an agent of either the client or attorney."

A discovery dispute was held June 26 to discuss the issue. 

Swyear mentioned during the meeting that her mother had a previous business relationship with Fare Foods, the order states. 

She also stated that her mother sought legal advice during the initial consultation in question regarding whether she had a potential claim against Fare Foods. 

Swyear argues that the common interest doctrine should maintain attorney-client privilege in this situation. 

Daly did not agree.

"Here, it appears that Swyear’s mother was present during the initial consultation to provide emotional or moral support," Daly wrote. "While the Court is not unsympathetic to Swyear’s position, the presence of her mother during the consultation waived the attorney client privilege."

"Additionally, Swyear’s communications are not protected under the common interest doctrine," she added. "The common interest doctrine is 'an exception to the rule that no privilege attaches to communications between a client and an attorney in the presence of a third person.'"

"The doctrine is applicable 'where the parties undertake a joint effort with respect to a common legal interest, and the doctrine is limited strictly to those communications made to further an ongoing enterprise.' 

"Although Swyear’s mother may have had prior business dealings with the Defendant, Swyear and her mother did not share a common legal interest. Swyear is pursuing a Title VII wrongful termination and sexual harassment lawsuit; there is no evidence that Swyear’s mother sought legal services for such claims," Daly wrote. 

Daly overruled Kaufhold's objections and ordered Swyear to respond to the original question.

In her complaint, Swyear argued that she was employed as an outside sales representative with Fare Foods Corporation when she was allegedly subjected to a hostile work environment and sexual harassment. She was later terminated after reporting the alleged harassment. 

U.S. District Court for the Southern District of Illinois case number 3:16-cv-1214

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