By Judge William N. Alexander, II
Plaintiffs have moved to overrule the Commonwealth’s claim of attorney-client privilege for the notes taken on April 16, 2007, by Kay Heidbreder, University Counsel, during the Emergency Policy Group’s meetings. Part of Ms. Heidbreder’s duties at Virginia Tech included being a member of the Emergency Policy Group.
Without citing authorities, the general rule is that confidential communications between a lawyer and his or her client are privileged and not to be disclosed. The burden of establishing that the privilege existed, that the communication is privileged, and the privilege has not been waived lies with the proponent of the privilege.
From a review of Heidbreder’s notes, it is apparent that she is chronicling information and events as they are being revealed to the Emergency Policy Group. She, as any other member of the group, was free to take notes during the course of the meetings. With one exception, her notes are not confidential communications nor is there any indication that her notes were intended to be confidential. There is nothing to indicate that she was making notes in order to give legal advice. Her notes are nothing more than a recording of the facts she learned during the course of the day as a member of the Group.
I find the notes are not confidential communications and not privileged with the exception of those made at 6:00 p.m. in regard to points Ms. Heidbreder intended to make at a briefing. Plaintiffs’ motion to overrule the Commonwealth’s claim of attorney-client privilege is granted. The notes will be turned over to plaintiffs’ counsel with the exception of Heidbreder’s briefing notes, which have been redacted.
I am today sending copies of Ms. Heidbreder’s notes to Mr. Hall and all remaining parties with her briefing notes redacted.