Can a continuing objection protect against waiver of attorney-client privilege during deposition? Doe v. Maret Explained

The Utah Supreme Court’s decision in Doe v. Maret provides critical guidance on the limits of continuing objections in protecting attorney-client privilege during depositions. The case demonstrates that even well-intentioned procedural safeguards cannot prevent waiver when a client voluntarily discloses privileged communications.

Background and Facts

In this medical malpractice case, plaintiff Jane Doe sued defendants for allegedly providing her psychological records to her ex-husband’s attorney during custody proceedings. Doe claimed she relinquished custody of her children because her ex-husband threatened to tell them about the contents of these records. Defendant Maret sought to depose Doe’s attorneys from the custody case, arguing she had waived attorney-client privilege by placing her custody decision at issue and by discussing those communications in her deposition.

Key Legal Issues

The court addressed two primary questions: (1) whether Doe waived privilege under Rule 504 by filing suit where her custody decision was at issue, and (2) whether she waived privilege under Rule 507 through her deposition testimony despite counsel’s continuing objection protecting attorney-client communications.

Court’s Analysis and Holding

The court held that merely placing one’s decision-making process at issue does not waive attorney-client privilege under Rule 504. However, under Rule 507, a client waives privilege by voluntarily disclosing “any significant part” of privileged communications. Critically, the court ruled that continuing objections cannot protect privileged communications when a client chooses to disclose them voluntarily. Even though Doe’s counsel had made a continuing objection, when Doe volunteered specific details about privileged conversations during her deposition, she waived the privilege as to those disclosed matters.

Practice Implications

This decision underscores the importance of thorough client preparation before depositions involving potentially privileged matters. Practitioners should ensure clients understand that voluntary disclosure of privileged information waives the privilege regardless of any continuing objection. The court limited the waiver to the specific subject matter disclosed, providing some protection for related but undisclosed privileged communications.