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Court: School District Attorney’s Communications with Former Coaches in Concussion Lawsuit Are Fair Game

(Editor’s Note: What follows is an excerpt of a case summary that appeared in the December issue of Concussion Litigation Reporter. For this summary and the case citation and many others like it, consider subscribing to the Reporter at https://concussionpolicyandthelaw.com/subscribe/)

In a majority decision involving a student athlete’s concussion-related lawsuit against a school district, the Washington Supreme Court has ruled that communications between the school district’s attorney and former coaches employed by the district are not shielded by the attorney-client privilege.

In so ruling, the court conceded that it “follows a flexible approach to application of the attorney-client privilege in the corporate context.” However, the privilege “does not broadly shield counsel’s post-employment communications with former employees.”

Highland High School quarterback Matthew Newman and his parents claimed in a lawsuit that Newman suffered a permanent brain injury while playing in a high school football game in 2009, one day after he allegedly sustained a head injury at football practice. Specifically, the plaintiffs alleged that the Highland School District No. 203 violated Lystedt law, RCW 28A.600.190, which requires the removal of a student athlete from competition or practice if he or she is suspected of having a concussion.

In pre-trial proceedings, the district moved for a protective order to prevent the plaintiffs from obtaining discovery of communications between the school district’s counsel and former coaches during time periods when the former coaches were not represented by the school district’s counsel. The state court judge denied the motion and the school district appealed.

In reviewing the appeal, the court noted …

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