“Though not as harsh as a dismissal, it amounts to a judicially imposed waiver of the attorney-client privilege, one of the most sacrosanct concepts of law,” he says. Now that the court has prohibited the plaintiffs from asserting the privilege as an objection to requests for attorney-client communications, there is a potential confidentiality issue, Rossi adds. “The now-discoverable communications could include sensitive or proprietary information on topics unrelated to the issue on which the court ordered discovery,” he says. One option to balance those concerns would have been to impose some limitation on the production of documents — for example, ordering production on an attorneys-eyes-only basis, and requiring defense counsel to obtain the plaintiffs’ consent or a court order if counsel wished to further disclose them, the Conn, Kavanaugh, Rosenthal, Peisch & Ford partner says.
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