Last week’s Privilege Point described a Nevada federal court ruling that a lawyer’s testimony about non-privileged matters did not waive that fragile protection. Snow Covered Capital, LLC v. v. Fonfa, Case No. 2:22-cv-1181-CDS-BNW, 2024 U.S. Dist. LEXIS 122574 (D. Nev. July 12, 2024). Six days later, the Delaware federal court dealt with a plaintiff’s argument that its lawyer would not waive its privilege by testifying (thus justifying its refusal to produce related privileged communications in discovery).

In Upsher-Smith Laboratories, LLC v. Zydus Pharmaceuticals (USA) Inc., plaintiff claimed that its lawyer “will testify only to his factual knowledge of the [pertinent] Settlement Agreement.” Civ. A. No. 21-1132-GBW, 2024 U.S. Dist. LEXIS 127378, at *5 (D. Del. July 18, 2024). But plaintiff’s lawyer also conceded that he would testify about plaintiff’s “understandings, interpretations, and expectations regarding the Settlement Agreement,” which the court said would “necessarily implicate [plaintiff’s] internal communications and discussions,” and thus “be based on and draw from his knowledge of the privileged communications.” Id. at *5-6. The court ruled that plaintiff’s lawyer could not testify unless plaintiff produced related privileged communications.

Assessing the waiver implications of a lawyer’s testimony thus depends on its content. For example, in this case presumably the court would have ruled differently if plaintiff’s lawyer planned to testify only about what the parties had said to each other during settlement negotiations.