If clients and their lawyers engage in otherwise privileged communications in the presence of third parties, the privilege rarely if ever protects the communications. But what if the communications occur in a public place where third parties might have overheard them? Does a litigant challenging privilege protection have to demonstrate that a third party actually did overhear the communications?

In MacFarlane v. Fivespice LLC, No. 3:16-cv-01721-HZ, 2017 U.S. Dist. LEXIS 68184 (D. Or. May 4, 2017), employment discrimination plaintiff MacFarlane challenged defendant Café's privilege claim for communications between its lawyer and its former chief chef – which occurred at the Café. It is unclear how plaintiff knew about the conversation, but she argued that the conversation "occurred in a setting where it could have been heard by the public and is not therefore privileged." Id. at *12. The court upheld the Café's privilege claim, pointing to another participant's testimony: that "it occurred in the morning during off-peak hours"; that "no Café employees or customers sat near them at any point during the meeting"; that "the conversation participants did not raise their voices"; and that "the conversation, in his perception, was out of earshot." Id. at *13. The court concluded that "this was a sufficiently confidential setting for maintaining the attorney-client privilege." Id.

Such a scenario would be more complicated if the plaintiff had found someone who heard part but not all of the otherwise privileged communications, or could show that the Café was packed with people – but was unable to track down anyone who could testify that he or she actually overheard the conversation. Some authorities find the privilege inapplicable if communications occurred where they could have easily been overheard, while other authorities require evidence that someone actually overheard the communications (presumably requiring some witness to step forward).