General counsel and attorneys conducting internal investigations should pay attention to a recent Washington State Supreme Court ruling which held that communications between corporate counsel and former employees are not privileged. The ability to communicate with former employees is critical in almost every internal investigation, and this ruling guts an assumption about privilege with which many lawyers have approached such interviews. Upjohn left the question of privilege as to former employees open, and states are anyway free to decide the scope of any potential privilege.
While no one is saying that other states are going to follow Washington’s lead here, the ruling is a reminder that we should not take anything for granted in the fluid and often rushed context in which internal investigations are conducted.
The decision is available on Westlaw: Newman, et al. v. Highland School District No. 203, No. 90194-5 (Wash. Oct. 20, 2016).