Last week’s Privilege Point described an opinion requiring a corporate party’s witness to disclose communications with his Latham & Watkins lawyers, because he confirmed with that firm his own “commercial understanding” about a key document’s meaning. Wesco Aircraft Holdings, Inc. v. SSD Invs. Ltd. (In re Wesco Aircraft Holdings, Inc.), Ch. 11 Case No. 23-90611,  Adv. No. 23-3091, 2024 Bankr. LEXIS 960 (S.D. Tex. Apr. 22, 2024).

Twenty-two days later, the same judge understandably vacated his earlier ruling. In Wesco Aircraft Holdings, Inc. v. SSD Investments Ltd., the judge noted that on cross-examination the witness acknowledged the fact of his confirmatory communications with Latham & Watkins — but “[a]t no point during cross-examination did [the witness] state he relied on the advice of counsel informing his belief” about the document’s meaning. Ch. 11 Case No. 23-90611, Adv. No. 23-3091, 2024 Bankr. LEXIS 1146, at *31 (S.D. Tex. May 14, 2024). The judge also emphasized that the witness did not offer “evidence of privileged communications to support any of [his employer]’s claims or defenses,” and that counsel “promptly objected” to questioning focusing on the witness’s communications with Latham & Watkins. Id.

These two opinions highlight the importance of clients’ and their lawyers’ avoidance of any reliance on either the content or even the fact of communications with a lawyer when asserting a claim or a defense.