Facts: During Wife’s divorce, she consulted with her attorney in the presence of Wife’s friend about, in part, whether Wife should report to law enforcement certain actions by Husband. Wife’s attorney correctly informed her that their communications would not be protected by attorney-client privilege with Wife’s friend present, but Wife insisted her friend remain in the room.

Wife’s attorney referred her to a criminal-defense attorney, who also met with Wife while Wife’s friend was present and after this attorney informed Wife that their communications would not be privileged with her friend present. In this meeting, Wife and the criminal-defense attorney discussed reporting Husband’s action to law enforcement.

Wife then reported Husband’s actions to law enforcement. Husband was never charged with a crime.

Husband filed a countercomplaint for the spousal torts of both intentional and negligent infliction of emotional distress, alleging that Wife’s attorney advised her that reporting Husband’s conduct to law enforcement with the only way for Wife to gain an advantage in the divorce. Husband claimed that Wife’s pursuit of criminal charges against him to obtain leverage in the divorce resulted in serious mental injury to him.

To pursue these spousal tort claims, Husband sought discovery of Wife’s communications with her lawyer.

Wife claimed those communications were protected by the attorney-client privilege.

The trial court found Wife’s communications with her lawyer about bringing criminal charges against Husband were not privileged because those discussions did not involve the subject of the divorce for which the lawyer was hired. The trial court also found the privilege was waived by the presence of Wife’s friend in those meetings.

Wife requested an interlocutory appeal, which the Court of Appeals granted.

On Appeal: The Court of Appeals affirmed the trial court.

Tennessee law favors supplying all relevant evidence to the trier of fact. However, certain privileges may limit discovery. To foster open communications between attorney and client, Tennessee law recognizes attorney-client privilege is one such privilege.

Attorney-client privilege is not absolute, and the communications must involve the subject of the representation must be made with the intention that they will be kept confidential.

Attorney-client privilege belongs to the client and may be waived by the client.

The Court agreed that the attorney-client communications were discoverable under the circumstances:

Wife consulted with her attorneys and included a third-party . . . in at least some of those meetings where they discussed reporting Husband’s conduct to law enforcement. . . . Wife does not contest that she waived the privilege for those conversations that occurred while [her friend] was present. However, Wife argues that the conversations where [her friend] was not present are protected by attorney-client privilege.

The problem with Wife’s argument is that she has not shown [at] which meeting or meetings [her friend] was present and which she was not. . . . [T]he party asserting a privilege has the burden of proving that the privilege is applicable. To successfully invoke the attorney-client privilege, the party asserting the privilege is obligated to establish the communications were made pursuant to the attorney-client relationship and with the intention that the communications remain confidential.

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Because Wife was in the best place to have the knowledge necessary to prove the existence of [an] attorney-client privilege, the burden of proof was with Wife to show that the communications between her and her lawyer were protected by the attorney-client privilege. Wife did not present evidence demonstrating that the attorney-client privilege applied to any specific one or more of the meetings with her attorneys and agreed with the trial court’s finding that she could not identify which meetings [her friend] was present for. Our acceptance of Wife’s position would mean that because neither Wife nor [her friend] could identify which meetings [her friend] was present, the attorney-client privilege would apply whether [her friend] was present or not. That is not the law in Tennessee. Wife has not met her burden of proof to establish that the attorney-client privilege protected these communications.

The trial court’s decision was affirmed because Wife did not meet her burden of proof to establish that the privilege applied to any specific communication.

K.O.’s Comment: Husband also sued Wife’s attorney for a variety of torts, but his lawsuit was summarily dismissed for failure to state a claim upon which relief could be granted.

Pagliara v. Pagliara (Tennessee Court of Appeals, Middle Section, June 29, 2020).