The privileges of working in the gig economy are too numerous to recount here. There's the freedom to set your own hours, the joy of being constantly rated on how cheerful (yet obsequious) you appear, and avoiding all of the complicated headaches that go with having health insurance and a retirement plan.
Well I have even more good news for you! Judge McCalla held just last week that at least some of you also enjoy the attorney-client privilege.
The defendant in Torvent LLC v. Techtronic Industries Co., Ltd. C.A. No. 21-853-JPM, D.I. 208 (D. Del. Jan. 11, 2024) was a startup with only a token staff of actual employees. In lieu of a permanent staff, they retained a large number of contractors for "various accounting and secretarial functions" and "consultants relat[ing] to licensing and damages issues." Id. at 6.
The dispute here arose because the defendant claimed privilege over a few thousand communications with these contractors. The plaintiff argued that these communications were not privileged because these were with third parties, rather than employees. The parties agreed that many of these contractors were functionally identical to employees. They disputed whether communications with these "functional equivalents" are entitled to the same privilege protections as actual employees.
Judge McCalla held that they are:
The modern workplace “increasingly conduct[s] . . . business not merely through regular employees but through a variety of independent contractors retained for specific purposes.” Extending attorney-client privilege to employees but excepting independent contractors would vitiate the logic of Upjohn, chilling full and frank communication between attorneys and clients simply because clients chose to conduct business through independent contractors where others use employees.
. . .
Extending privilege to “functionally equivalent” independent contractors is especially important in start-up environments like the one at issue here, where the business lacks permanent employees and depends on independent contractors to substantiate the founder’s business plans. This environment makes compliance impossible without dissemination of attorney-client communications to those independent contractors.
Id. at 11.
Let this serve as a reminder to check your privilege every now and again. You might find that there's more than you thought.
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