A corporate representative does not waive attorney-client privilege when discussing the factual background for preparation for corporate representative deposition.

In a recent decision from the Fifth District Court of Appeals stemming from an automobile liability case, the court found that a corporate representative did not waive attorney-client privilege when defense counsel cross examined him on why he had not personally communicated with the defendant employee driver but, rather, asked defense counsel to speak with him. The court granted certiorari and quashed the order granting the plaintiff’s motion for sanctions, to compel, and invoked the rule of sequestration of the corporate representative and defense counsel.

The proper parameters of a corporate representative deposition were laid out in a Marshall Dennehey case in 2013 in the Fourth District Court of Appeals. The person designated as the corporate representative in a corporate representative deposition will testify on behalf of the corporation, as if it is the voice of the corporation, it is not the person with the “most knowledge.” Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc., 109 So. 3d 329 (Fla. 4th DCA 2013). Very often, an attorney will request a corporate representative as the person with the most knowledge of the allegations in the complaint; however, this goes in direct contradiction to the purpose of the rule.

The importance of the Papa John’s decision shows that the corporate representative is held to be the “voice” of the corporation and attorney client privilege exists and should be protected, especially regarding the pre-deposition meeting between counsel and representative. A corporate representative is required to make themselves apprised of all information that is available to the corporation and delineated in the topics to be discussed by the party noticing the deposition. The takeaway from this case is that it is important to properly prepare your corporate representative for each enumerated topic in the notice, as well as maintain all attorney-client privileges.

^{Case Law Alerts, 4th Quarter, October 2022 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2022 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.}