Note that on page 2 of the deposition, Sid Backstrom of the Scruggs Law Firm (now under indictment in the alleged bribery case) says he is there representing the plaintiffs, the McIntoshes. Another lawyer from another firm was defending Rigsby’s deposition. But when the questioning turned to whether Rigsby used her laptop to access State Farm claims files while meeting with Dickie Scruggs in a trailer (see pages 24-36), Backstrom stepped in and instructed her not to answer on grounds of attorney-client privilege. (See also around pages 180-190 for more on the assertion of attorney-client privilege).
The attorney conducting the questioning appears to have handled this with a far more even temper than I would have displayed under the same circumstances. The attorney-client privilege applies to communications, including non-verbal acts intended as communications, such as nodding your head, giving your lawyer the thumbs-up, and the like. The fact that your lawyer told you to drive down to Wendy’s to pick up a large fries and a side salad does not mean that the fact that you traveled from the lawyer’s office to Wendy’s is protected from disclosure, particularly if it becomes relevant in a lawsuit whether it was you behind the wheel of a car that sideswiped 15 parked cars along the route. Driving your car is not communications. Neither is using a laptop to access claims files, even if it was done from your lawyer’s trailer and at his instruction, especially when the act of logging onto a password protected computer system creates a record accessible to parties outside the attorney-client relationship, thereby waiving any expectation of secrecy in the act, if not in the communications themselves.
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