Showing 242 of 242 results

Chapter: 10.2

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, at *8 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "[T]he investigation here was conducted at the direction of the attorneys in KBR's Law Department. And communications made by and to non-attorneys serving as agents of attorneys in internal investigations are routinely protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal

Chapter: 10.2

Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; pointing to E&Y's retainer letter language in concluding that E&Y was within privilege protection because it assisted Household's in-house counsel in giving legal advice; "'We understand that you will be utilizing the Work Product in order to provide legal advice to your client, Household, in your capacity as General Counsel. As such, all Work Product shall be deemed covered by the attorney-client privilege. Furthermore, it is our understanding that Household companies are currently involved in various types of litigation for which the Work Product may be used and anticipate such litigation in the future. As such, all Work Product shall be treated by E&Y as privileged under the attorney work product privilege.'"; "According to Defendants, Household's General Counsel needed E&Y's assistance in conducting the compliance study because it required expertise in sophisticated quantitative analyses and in identifying and addressing compliance issues, as well as a substantial commitment of personnel. In Defendants' view, 'it would not have been possible for Household personnel to have performed all of the tasks that E&Y performed.'"; also quoting Household's explanation of E&Y's role in a letter to State Attorney's General who was then pursuing an action against Household: "'The Ernst & Young engagement is designed to monitor the company's compliance with certain company policies and state regulation. In addition, Ernst & Young shall (1) identify the root causes of noncompliance; and (ii) recommend process improvements to enhance controls over compliance.'"; concluding as follows: "It is clear from the Compliance Engagement letter that E&Y was acting as an agent of Household's General Counsel's office. . . . Both Household and E&Y understood that the engagement was to assist in-house counsel in providing legal advice regarding pending or anticipated litigation."; "The mere fact that it took Household's counsel and E&Y a couple of weeks to finalize a retention agreement does not demonstrate that the retention letter is a sham. Nor is the court persuaded that the arrangement was false based on a single internal email stating generically that 'HI' retained E&Y."; "Plaintiffs argue that E&Y's assistance was not necessary for Household's in-house lawyers to understand the Company's business practices or to calculate refunds. . . . The court is satisfied, however, that Defendants have demonstrated the necessity of E&Y's services in this case. Household retained E&Y to conduct complex quantitative analyses and extensive information-gathering that was beyond Household counsel's resources and abilities, but was uniquely within E&Y's qualifications."; "Plaintiffs also object that Household offered to make the E&Y compliance audit available to the Multistate Working Group for their review, and that Household cannot now claim that it intended to keep the documents confidential. . . . This is not entirely accurate. The Settlement Agreement with the Attorneys General provided that Household would retain an 'independent monitor' whose future reports generated in connection with the Settlement Audit would be provided to the Attorneys General upon request. . . . There is nothing to indicate that Household was willing to, or did in fact provide the Working Group with the audit results of the Compliance Engagement. Indeed, Defendants confirm that Household never shared the results with 'the Attorneys General, with the S.E.C., or with any other governmental agency, authority, or entity, and has maintained the results of that engagement in strictest confidence.' Thus, the E&Y documents in question are protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


Chapter: 10.3

Case Name: Williams v. Big Picture Loans, LLC, Civ. A. No. 3:18-mc-1, 2018 U.S. Dist. LEXIS 43775 (E.D. Va. March 16, 2018)
(in an opinion by Judge Payne, applying the same privilege standard for client agents/consultants and lawyer agents/consultants; "[E]ven where the client rather than the attorney has engaged the agent, the privilege only attaches if the agent's work is intended to help the attorney provide legal services -- the precise conclusion reached by Kovel and the cases that have interpreted it. Consequently, those cases are instructive here despite the differences in the identity of the party hiring the agent."; "Aranca [Consultant retained to prevent a fair market value opinion] was engaged to better help Martorello understand the effect of the Bellicose sale and the Note on his taxes. Courts have rejected the extension of the attorney-client privilege in similar circumstances. . . . Martorello was not the subject of any investigation or proceeding at the time he engaged Aranca, and he has not identified how Aranca's work helped his attorneys provide legal instead of tax services.")

Case Date Jurisdiction State Cite Checked
2018-03-16 Federal VA

Chapter: 10.3

Case Name: CAC Atlantic LLC v. Hartford Fire Ins. Co., 16 Civ. 5454 (GHW) (JCF), 2017 U.S. Dist. LEXIS 11010 (S.D.N.Y. Jan. 19, 2017)
(in an opinion by Magistrate Judge Francis, inexplicably citing Kovel in the context of a client rather than a lawyer agent; "The documents now at issue are all communications to or from Minogue ["a building consultant retained by Hartford prior to its disclaimer of coverage"], and since Minogue is not 'the client,' they are not privileged on their face. Nevertheless, there are two theories that might bring these communications within the privilege. First, an attorney may rely on a non-lawyer to facilitate communications with the client, including persons with expertise such as accountants used to convey technical information. See United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961); Osorio, 75 N.Y.2d at 84, 550 N.Y.5.2d at 615. Here, however, Hartford has not demonstrated that Minogue was engaged simply to 'translate' information for purposes of providing legal advice."; "Second, even though Minogue is not itself a party, its communications with counsel and the defendant might be privileged if it were the functional equivalent of an employee of Hartford."; "Hartford has not established that Minogue served such an integral role in light of these factors that it must be treated as if it were an employee for purposes of the privilege.")

Case Date Jurisdiction State Cite Checked
2017-01-19 Federal NY

Chapter: 10.3

Case Name: In re Lumber Liquidator S Chinese-Manufactured Flooring Products, MDL No. 1:15-md-02627, 2015 WL 947286 (E.D. Va. Dec. 28, 2015) (unpublished)
(holding that the privilege did not protect communications with a testing consultant, which was not the "functional equivalent" of defendant's employees (in contrast to a crisis management consultant that met the "functional equivalent" standard); "Benchmark had previously been hired by defendant to conduct regular, routine testing to monitor products' compliance with various standards, and defendant does not claim protection for communications and test results relating to that routine work."; "Defendant then engaged Benchmark on four occasions to conduct separate, special tests as part of defendant's investigation of the claims that ultimately led to this and other litigation. Defendant asserts that the results of those four groups of tests are work product, and the court agrees. In the situation revealed by the record before the court, it is clear that these tests were performed by Benchmark as defendant's agent as part of preparation for litigation, and they are work product within the ambit of Rule 26."; "The court finds that Benchmark was clearly and unambiguously defendant's agent, rather than counsel's agent, at all relevant times. The facts that Benchmark was bound by a confidentiality agreement, that it began taking instructions from counsel at some point, and that counsel later wrote correspondence attempting to bring Benchmark within the privilege do not alter Benchmark's status as defendant's agent rather than counsel's."; "Unlike agents of counsel representing a client, the client's agents are generally, and presumptively, not within the protected circle of privileged attorney-client communications. Relatively uncommon situations such as the cost has found above regarding Mercury in the present case (had its communications related to legal instead of business matters) are exceptions to that general rule. Benchmark, unlike Mercury, was a typical outside contractor performing discrete tasks, reporting pre-requested facts and neither providing additional information or advice to client or counsel, nor needing input much less advice from them. The court finds that defendant has not met its burden to show that communications to, from, or including Benchmark are protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2015-12-28 Federal VA

Chapter: 10.4

Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SNC), 2017 U.S. Dist. LEXIS 176102 (S.D.N.Y. Oct. 24, 2017)
("[A]lthough Abe is not an attorney, documents prepared by non-legal staff under an attorney's supervision are protected to the same extent as documents prepared by the attorney himself or herself.")

Case Date Jurisdiction State Cite Checked
2017-10-24 Federal NY

Chapter: 10.4

Case Name: Hobart Corporation v. The Dayton Power & Light Co., Case No. 3:13-cv-115, 2017 U.S. Dist. LEXIS 136682 (S.D. Ohio Aug. 24, 2017)
("Larry Strayer was a paralegal in NCR's Legal Department. At the request of NCR's legal counsel, he interviewed four then-current NCR employees and two retired NCR employees concerning NCR's waste disposal at the Cardington Road Landfill in the 1950s and 1960s. After those interviews, he drafted two confidential memos to the file. One is dated August 15, 1989; the other is dated August 18, 1989. There are also certain maps attached to the August 18, 1989, memo, on which the interviewees marked the locations of the dumping sites they discussed in their interviews."; "Based on the holding in Upjohn, the Court finds that NCR's interview summaries are protected in their entirety by the attorney-client privilege and the work product doctrine. To the extent that the summaries record communications between the NCR employees and Strayer, made in confidence at the direction of corporate counsel in order to secure legal advice, the responses to Strayer's questions are protected from disclosure by the attorney-client privilege, regardless of Defendants' need for this information."; "In addition, to the extent that the interview summaries also contain Strayer's mental impressions, opinions and conclusions concerning the responses to his questions, these statements are protected as core work product and 'cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship.'. . . This is true even though the summaries were prepared in anticipation of different litigation involving the Cardington Road Landfill.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal OH

Chapter: 10.4

Case Name: Le v. Zuffa, LLC, Lead Case No. 2:15-cv-01045-RFB-PAL, 1 Member Case Nos.: 2:15-cv-01046-RCJ-NJK; 2:15-cv-01055-APG-GWF; 2:15-cv-01056-RFB-GWF; and 2:15-cv-01057-JCM-CWH, 2017 U.S. Dist. LEXIS 20614 (D. Nev. Feb. 13, 2017)
("Two sets of documents are at issue. The first involve contract negotiations with a fighter. The fighter's counsel provided a marked up version of the fighter's existing contract with the fighter's proposed changes, to Zuffa's COO, Frank Fertitta, who was responsible for negotiations with the fighter. Mr. Fertitta forwarded the marked up contract to in house paralegal Tracy Long and requested a summary of the proposed changes. Ms. Long indicated she would get the input of in house counsel Michael Mersch, and would respond by memo the following day. Zuffa claims a summary of the fighter's proposed changes, a memo from Mr. Mersch to Mr. Fertitta, and related emails are protected by the attorney client privilege. Zuffa's opposition was supported by several declarations which outline the titles various individuals held within the organization during various time periods. Noticeably absent were declarations from the in house counsel involved in the communications, Mr. Mersch, or Mr. Fertitta, the negotiator and executive requesting the summary of proposed changes."; "The court carefully reviewed the documents, considered the context of the communications in which various individuals who sent or received the documents was involved, and found Zuffa simply had not met its burden of showing the documents were privileged. The summary merely recites what the fighter, through counsel, was requesting in contract negotiations. The summary contains no legal analysis or advice, nor do the emails which forward information about what the fighter was requesting, and comment on whether Zuffa should agree or disagree."; "Most of the Mersch memo contains comments about whether Zuffa could or should agree or 'push back' on proposed changes requested by the fighter rather than legal analysis or discussion of the legal ramifications of the fighter's proposals. However, portions of Mr. Mersch's memo to Mr. Fertitta, read in context, contain his legal analysis of existing contract terms and the legal consequences of agreeing or disagreeing with what the fighter's counsel was proposing. Although the memo does not specifically use terms or phrases such as 'this is my legal advice' or 'this is the legal effect' of what the fighter's counsel is requesting, legal analysis of the proposed terms is evident. The court will therefore require that the document be produced to Plaintiffs as redacted below.")

Case Date Jurisdiction State Cite Checked
2017-02-13 Federal NV

Chapter: 10.4

Case Name: Crane Security Technologies, Inc. v. Rolling Optics, AB, Civ. A. No. 14-124280-LTS, 2017 U.S. Dist. 15529 (D. Mass. Feb. 3, 2017)
("It cannot be that these communications, simply because an assistant made them at the request of a lawyer rather than the lawyer's making them herself, are not privileged."; "The court has reviewed all of the communications in this category and finds that they are either seeking or discussing legal advice. The fact that communications are between non-lawyers does not per se waive the privilege.")

Case Date Jurisdiction State Cite Checked
2017-02-03 Federal MA

Chapter: 10.4

Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2016 U.S. Dist. LEXIS 160602 (S.D.N.Y. Nov. 18, 2016)
("Documents generated by non-legal staff under the supervision of an attorney is equally protected to that produced by the attorney himself or herself.")

Case Date Jurisdiction State Cite Checked
2016-11-18 Federal NY

Chapter: 10.4

Case Name: Greyhound Lines Incorporated v. Viad Corporation, No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483 (D. Ariz. Sept. 8, 2016)
("Greyhound contends that Massimino [a Rule 30(b)(6) witness] gave inconsistent testimony on whether the reports were prepared at the direction of Viad's counsel. The Court does not agree. Massimino testified that the Ries [a non-lawyer member of Viad's legal department from 1987 to 2001] reports were prepared at the request of counsel, although he was not able to identify the specific attorney who made the request before he joined the legal department. . . . In his declaration -- issued about a month after his deposition -- Massimino avowed that he had directed Dr. Ries to prepare the reports while he was in the law department, and that records indicated that Dr. Ries had always done so at the direction of Viad's lawyers. . . . The Court does not view these assertions as inconsistent with his deposition testimony.")

Case Date Jurisdiction State Cite Checked
2016-09-08 Federal AZ

Chapter: 10.4

Case Name: Greyhound Lines Incorporated v. Viad Corporation, No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483 (D. Ariz. Sept. 8, 2016)
("The affidavits of Dr. Ries [a non-lawyer member of Viad's legal department from 1987 to 2001] and one of Viad's in-house lawyers establish that the reports were prepared at the direction of lawyers in Viad's law department, to enable the lawyers to provide legal advice to the company. . . . This is reinforced by the reports themselves, which address a wide range of topics on which lawyers typically advise clients, including ongoing and threatened litigation, settlement discussions and offers, general legal exposure, and regulatory action. The fact that these reports contained factual information . . . or documented Dr. Ries's monthly activities . . . does not refute Viad's evidence that they were created to enable lawyers to provide legal advice."; "Greyhound argues that the reports are not privileged because Dr. Ries did not label them as privileged. . . . But some of the reports are labeled as privileged. And even for those that are not, the Arizona statute does not require that communications be labeled to be privileged. The statute instead looks to the nature and content of the communication and protects those made '[f]or the purpose of obtaining information in order to provide legal advice.' See A.R.S. § 12-2234(B)(2).")

Case Date Jurisdiction State Cite Checked
2016-09-08 Federal AZ

Chapter: 10.4

Case Name: Greyhound Lines Incorporated v. Viad Corporation, No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483 (D. Ariz. Sept. 8, 2016)
("Greyhound contends that Massimino [a Rule 30(b)(6) witness] gave inconsistent testimony on whether the reports were prepared at the direction of Viad's counsel. The Court does not agree. Massimino testified that the Ries [a non-lawyer member of Viad's legal department from 1987 to 2001] reports were prepared at the request of counsel, although he was not able to identify the specific attorney who made the request before he joined the legal department. . . . In his declaration -- issued about a month after his deposition -- Massimino avowed that he had directed Dr. Ries to prepare the reports while he was in the law department, and that records indicated that Dr. Ries had always done so at the direction of Viad's lawyers. . . . The Court does not view these assertions as inconsistent with his deposition testimony.")

Case Date Jurisdiction State Cite Checked
2016-09-08 Federal AZ

Chapter: 10.4

Case Name: Cardinal Aluminum Co. v. Continental Casualty Co., Case No. 3:14-CV-857-TBR-LLK, 2015 U.S. Dist. LEXIS 95361 (W.D. Ky. July 22, 2015)
September 16, 2015 (PRIVILEGE POINT)

"Courts Continue to Catalogue Client and Lawyer Agents Outside Privilege Protection"

Under the majority view, the only client agents/consultants inside privilege protection are those essential for the client-lawyer communications. Although courts take a more varied view of lawyer agents/consultants, many courts hold that the only lawyer agents within privilege protection are those essentially translating or interpreting data so the lawyer can understand it.

In Cardinal Aluminum Co. v. Continental Casualty Co., Case No. 3:14-CV-857-TBR-LLK, 2015 U.S. Dist. LEXIS 95361 (W.D. Ky. July 22, 2015), the court held that plaintiff's insurance broker was outside privilege protection — despite the plaintiff's CFO's affidavit that the plaintiff relied on the broker to submit an insurance claim, negotiate with the insurance company, and advise the plaintiff about the claims process. Among other things, the court noted that "Plaintiff did not argue that its broker acted to effectuate legal representation for Plaintiff." Id. At *8. About three weeks earlier, another court addressed a company's claim that the privilege covered communications between its lawyers and environmental engineering firm AGC. NL Indus., Inc. v. ACF Indus. LLC, No. 10CV89W, 2015 U.S. Dist. LEXIS 86677 (W.D.N.Y. July 2, 2015). Although acknowledging plaintiff's argument that AGC's "actions were done at the direction of counsel," the court found that AGC was outside privilege protection — noting that "[p]laintiff has not shown that AGC acted like an interpreter or translator of client communications." Id. At *12.

One of the most dangerous client misperceptions is that the privilege can protect their communications with their agents/consultants. And one of the most dangerous lawyer misperceptions is that lawyers can automatically assume that their agents/consultants are within privilege protection.

Case Date Jurisdiction State Cite Checked
2015-07-22 Federal KY
Comment:

key case


Chapter: 10.4

Case Name: In re Fresh and Process Potatoes Antitrust Litigation, Case No. 4:10-md-2186-BLW-CWD, 4:13:cv-00251-BLW, 2015 U.S. Dist. LEXIS 33577 (D. Idaho March 17, 2015)
("JWRW 012463 is an email communication from Mary Russell, a Jones Waldo [Law firm] staff member, transmitting a confidential client communication to Mr. Wilson [Jones Waldo lawyer]. The email is protected attorney-client communication. See Himmelfarb v. U.S. 175 F.2d 924, 939 (9th Cir. 1949) (where presence of third party, such as attorney's secretary, is indispensable to delivery of legal advice, privilege is not waived).")

Case Date Jurisdiction State Cite Checked
2015-03-17 Federal ID

Chapter: 10.4

Case Name: Drive Logistics, Ltd. v. PBP Logistics LLC, No. 14-10289, 2015 U.S. Dist. LEXIS 7717 (E.D. Mich. Jan. 23, 2015)
("[C]ommunications between employees or officers of Defendant corporation and the paralegal, related to legal advice, are privileged.")

Case Date Jurisdiction State Cite Checked
2015-01-23 Federal MI

Chapter: 10.4

Case Name: Veolia Water Solutions & Technologies Support v. Siemens Industry, Inc., No. 5:11-CV-00296-FL, 2014 U.S. Dist. LEXIS 165747 (E.D.N.C. Nov. 25, 2014)
(analyzing privilege issues in a patent case; "[T]he fact that a paralegal is copied on the communication . . . Without some specific reference or direction to the paralegal, is not sufficient in itself to establish privilege, given the absence of other indicia of attorney-client privileged communication.")

Case Date Jurisdiction State Cite Checked
2014-11-25 Federal NC

Chapter: 10.4

Case Name: Premier Dealer Servs., Inc. v. Duhon, Civ. A. Nos. 12-1498 & -2790 SECTION: "H" (4), 2013 U.S. Dist. LEXIS 160204, at *23-24 (E.D. La. Nov. 8, 2013)
("Premier Dealer contends that Mader [non-party] was its agent because he was contracted to sell its automotive repair warranty, therefore his communications with Wolery [plaintiff's in-house counsel] are protected by the attorney-client privilege. Privilege agents include non-employees, such as paralegals and investigators. The presence of these types of third party agents does not waive the privilege if their presence was to facilitate effective communication between lawyer and client or further the representation in some other way. Privileged agents are sometimes grouped into two categories: (1) Communicating agents; and (2) Representing agents. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 70 cmts. f, g (2000) 24 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure, § 5483 Supp. (2009) (discussing communicating and source agents).")

Case Date Jurisdiction State Cite Checked
2013-11-08 Federal LA B 5/14

Chapter: 10.4

Case Name: Premier Dealer Servs., Inc. v. Duhon, Civ. A. Nos. 12-1498 & -2790 SECTION: "H" (4), 2013 U.S. Dist. LEXIS 160204, at *24-25, *25-26 (E.D. La. Nov. 8, 2013)
("Both lawyers and clients will typically have communicating agents, who enable the lawyers and clients to communicate effectively. . . . The most common example of communicating agents are [sic] employers [sic] such as couriers and secretaries. . . . Representing agents can also include any subordinate or agent of the attorney if the attorney uses the agent to facilitate legal advice and supervises the agent's actions."; "In this case, Made [non-party]r is neither a communicating or representing agent, in fact, his services were business related, i.e., the sales of automotive warranty. As a result, his communications with Wolery [plaintiff's in-house counsel] are not privileged pursuant to the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-11-08 Federal LA B 5/14

Chapter: 10.4

Case Name: Hanson v. Wells Fargo Home Mortg., Case No. C13-0939JLR, 2013 U.S. Dist. LEXIS 149752, at *9 (W.D. Wash. Oct. 17, 2013)
(finding that the inadvertent disclosure of privileged communications did not result in a waiver; "Pages 69 and 70 are attorney-client privileged communications. Page 70 is an email between a Wells Fargo paralegal and what appears to be a general email address for declaration review, and page 69 is a cover sheet associated with the same communication. . . . In the corporate context, attorney client privilege extends to communications between counsel for the corporation and the corporation's employees.")

Case Date Jurisdiction State Cite Checked
2013-10-17 Federal WA B 5/14

Chapter: 10.4

Case Name: Wellinger Family Trust 1998 v. Hartford Life and Accident Ins. Co., Civ. A. No. 11-cv-02568-CMA-BNB, 2013 U.S. Dist. LEXIS 79019, at *1 (D. Colo. June 5, 2013)
(in an insurance case, holding that documents prepared by a paralegal deserved privilege but not work product protection; "The Motion to Compel concerns a two page document described in the privilege log as having been prepared by a paralegal in Hartford's legal department and as including '[h]andwritten notes re: portability, conversion, continuation, suicide exclusion, and situs of the Policy (Colorado versus Texas), and citation to C.R.S. § 10-7-109.'" (internal citation omitted))

Case Date Jurisdiction State Cite Checked
2013-06-05 Federal CO B 4/14

Chapter: 10.4

Case Name: In re MI Windows & Doors, Inc. Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *12-13 (D.S.C. May 1, 2013)
(holding that a paralegal's list of earlier cases involving the company was work product, and that the lawyer's list of important earlier cases deserved opinion work product protection; "This is an email from Chris Risberg to Bill Bezubic sending attached information that is not itself privileged. While the underlying information is not privileged, the fact of the transmission is itself a communication about an identifiable subject matter. And that communication was a confidential one between a lawyer (specifically a paralegal who is within the attorney-client unit) and the client (specifically the point person for the company on legal matters) on a legal matter. Accordingly, the email is protected under the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-05-01 Federal SC B 3/14

Chapter: 10.4

Case Name: Spartalian v. Citibank N.A., Case No. 2:12-cv-00742-MMD-PAL, 2013 U.S. Dist. LEXIS 28966, at *20 (D. Nev. Mar. 1, 2013)
(holding that the attorney-client privilege did not protect communications with a paralegal, because the paralegal was not acting under a lawyer's supervision; "[M]any of Plaintiff's objections to producing the documents are based on the purported attorney-client or work product privilege. These objections are not well taken. The Plaintiff does not have an attorney-client or work product privilege for communications with a friend who lives in Malta who is a paralegal not working under the direct supervision of a lawyer. Plaintiff testified at his deposition that he did not have an attorney. The party asserting the attorney-client privilege must establish the attorney-client relationship and the privileged nature of the communication.")

Case Date Jurisdiction State Cite Checked
2013-03-01 Federal NV B 3/14

Chapter: 10.4

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 331 (M.D. Pa. 2013)
(analyzing issues in connection with a student's criminal prosecution for an alleged sexual assault, which apparently was dropped; concluding that the student's parents were within the privilege as the student's lawyer's agent and as joint clients, but that the student adviser was outside the privilege and the work product protection; "Document No. 6 is a fax dated September 30, 2010, sent from Attorney Becker (via his paralegal) to Attorney Simon and John Dempsey, transmitting a copy of Attorney Becker's handwritten witness interview notes dated September 8, 2010.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal PA B 4/14

Chapter: 10.4

Case Name: Hubbell v. Ratcliffe, No. HHDX04CV08403824S, 2010 Conn. Super. LEXIS 2853, at *17 (Conn. Super. Ct. Nov. 8, 2010)
(declining to recognize the fiduciary exception in the context of a family trust beneficiary seeking access to communications between the trustee and the trustee's lawyer; "Where, as here[,] the trustees were permitted to have the assistance of secretaries in the performance of their trustee duties, and the secretaries maintained confidentiality, the privilege was not waived.")

Case Date Jurisdiction State Cite Checked
2010-11-08 State CT B 1/13

Chapter: 10.4

Case Name: Hilton Rorar v. State and Federal Communications, Inc., Case No. 5:09-CV-01004, 2010 U.S. Dist. LEXIS 36121 (N.D. Ohio April 13, 2010)
("The facts establish that Hilton Rorar [one of two plaintiffs, who worked as an "independent contractor in the law offices of her legal counsel in this matter"] acted as a representative or agent for Attorney Gilbert by receiving confidential information sent via e mail communications from Cassidy (intended for Attorney Gilbert) regarding the ongoing litigation and passing that information on to Attorney Gilbert. . . . In fact, certain of the e mails explicitly indicate that Cassidy's intention was to inform Attorney Gilbert."; "That Hilton Rorar was acting as Attorney Gilbert's representative when she received Cassidy's e mails, alone, does not dictate that the communications at issue are protected. It does, however, eliminate the possibility of waiver of either the attorney client or work product privileges due to the intentional disclosure of otherwise protected material to a third party.")

Case Date Jurisdiction State Cite Checked
2010-04-13 Federal OH

Chapter: 10.5

Case Name: Sidibe v. Health, Case No. 12-cv-04854-LB, 2018 U.S. Dist. LEXIS 20350 (N.D. Cal. Feb. 7, 2018)
(holding that a third party consultant was outside privilege protection; "There are certain exceptions where the privilege extends to communications involving a third party, such as certain situations in which the third party is necessary to interpret the client's statements to the attorney. See id. at 1071 (citing United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961) (discussing example)). But privilege does not extend to situations 'in which the [third party] is enlisted merely to give his or her own advice about the client's situation.' Id. at 1072 (emphasis modified). '[A] communication between an attorney and a third party does not become shielded by the privilege solely because the communication proves important to the attorney's ability to represent the client.' Id. (internal ellipsis omitted) (quoting United States v. Adlman, 68 F.3d 1495, 1500 (2d Cir. 1995)). Rather, '[t]he third-party communications must be interpretive and serve to translate informative information between the client and attorney' to be privileged. Cohen v. Trump, No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542, 2015 WL 3617124, at *14 (S.D. Cal. June 9, 2015) (citing cases)."; "This consultant-created document does not appear to contain or rely on any communications between Sutter and its attorneys, much less any confidential communications made for the purposes of seeking legal advice. The consultant was not interpreting or translating any information from Sutter for its attorneys. Rather, it appears that the consultant compiled its own business (not legal) analysis wholly independently of any confidential information that Sutter communicated to its attorneys for the purposes of seeking legal advice. The fact that Sutter's attorneys might have been the ones who retained the consultant and that the consultant's report was useful to the attorneys does not render the consultant's report privileged. See Cohen, 2015 U.S. Dist. LEXIS 74542, 2015 WL 3617124, at *14; Chevron Texaco, 241 F. Supp. 2d at 1071-72. The court finds that Sutter has not met its burden of establishing that this document is privileged.")

Case Date Jurisdiction State Cite Checked
2018-02-07 Federal CA
Comment:

key case


Chapter: 10.5

Case Name: In re Premera Blue Cross Customer Data Sec. Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762, at *16 (D. Or. Oct. 27, 2017)
February 7, 2018 (PRIVILEGE POINT)

"Public Relations Consultants Are Nearly Always Outside Privilege Protection"

In an important data breach investigation case discussed in a previous Privilege Point, the court held that the privilege did not protect communications between Premera and its public relations firm, because "drafting press releases relating to a security breach is a business function," and "[h]aving outside counsel hire a public relations firm is insufficient to cloak that business function with the attorney-client privilege." In re Premera Blue Cross Customer Data Sec. Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762, at *16 (D. Or. Oct. 27, 2017).

A few weeks later, another court reached the same conclusion about a public relations firm hired by famed lawyer Mark Geragos, who was representing the singer Kesha in high-profile litigation. Gottwald v. Sebert, 63 N.Y.S.3d 818 (N.Y. Sup. Ct. 2017). After reviewing communications between the public relations firm and Kesha's lawyers, the court concluded that Geragos and the other lawyers disclosed privileged communications to the PR consultant "primarily for the purpose of advancing a public relations strategy – and not for the purpose of developing or furthering a legal strategy." Id. at 826. Thus, "most of the legal advice discussed with [the public relations firm] lost the protection of the attorney-client privilege." Id. The court inexplicably failed to address the availability of work product protection for some disclosed documents, which normally would survive disclosure to a friendly third party such as a public relations consultant.

Public relations firms often play a critical role in high-profile media-covered litigation. While most courts would hold that disclosing work product to such consultants would not forfeit that protection, lawyers should remember that disclosing pre-litigation purely privileged communications normally will waive that more fragile protection.

Case Date Jurisdiction State Cite Checked
2017-10-27 Federal OR
Comment:

key case


Chapter: 10.5

Case Name: Crabtree v. Experian Information Solutions, Inc., No. 1:16-cv-10706, 2017 U.S. Dist. LEXIS 173905, at *4 (N.D. Ill. Oct. 20, 2017)
January 10, 2018 (PRIVILEGE POINT)

"When Can the Privilege Protect Employee-to-Employee Communications?"

Because privilege logs generally list the authors and recipients of withheld communications, corporations' adversaries frequently cite such logs in challenging the corporations' privilege claims when a log shows that no lawyer sent or received a withheld document. Corporations normally win such disputes if they demonstrate that one employee who received legal advice relayed it to another employee who needed it. Occasionally corporations also successfully withhold employees' contemporaneous notes of a privileged communication.

But there is a third, albeit less frequent, scenario in which the privilege can protect intra-corporate communications not involving a lawyer. In Crabtree v. Experian Information Solutions, Inc., the court held that defendant corporation "appropriately designated as privileged the communications between its non-lawyer employees." No. 1:16-cv-10706, 2017 U.S. Dist. LEXIS 173905, at *4 (N.D. Ill. Oct. 20, 2017). The court noted that the "employees gathered information to assist counsel with rendering legal advice," and that "those facts were eventually channeled to counsel to aid in the provision of legal services." Id. at *5. In other words, company lawyers had essentially deputized such employees to gather facts the lawyers needed. Of course, wise in-house and outside lawyers memorialize such deputization.

This type of protected employee-to-employee communications represents the chronologically first of the intra-corporate lawyerless trifecta of protected scenarios, which can extend privilege protection to such communications (1) before employees go to the lawyer with facts the lawyer needs; (2) that are memorialized while employees communicate with the lawyer; and (3) after they receive legal advice from the lawyer, which they then relay to other employees who need it.

Case Date Jurisdiction State Cite Checked
2017-10-20 Federal IL
Comment:

key case


Chapter: 10.5

Case Name: Legends Mgmt. Co., LLC v. Affiliated Ins. Co., Civ. A. No. 2:16-CV-01608-SDW-SCM, 2017 U.S. Dist. LEXIS 134020 (D.N.J. Aug. 22, 2017)
(in a first-party insurance case, holding that the lawyer's consultant was inside privilege protection; "The Court also finds that three e-mails authored by Peter Kahn ('Mr. Kahn'), a forensic accountant retained by Podvey Meanor to assist in providing legal advice, are privileged. Communications exchanged with consultants are not automatically privileged just because in-house or outside counsel is 'copied in' on correspondence; however, 'if the express purpose of the communication was to relay information for the purpose of seeking legal advice . . . the privilege attach[es].' Based on in camera review, in-house and outside counsel were not merely 'copied in' on the communications. The 'express purpose' of Mr. Kahn's e-mails was to relay his accounting expertise and allow Podvey Meanor to render legal assistance as to existing and potential coverage issues arising from the Legends Parties' insurance claims. In other words, Mr. Kahn's e-mails were sent in confidence 'to relay information for the purpose of seeking legal advice.' For these reasons, the redacted and withheld documents authored by Mr. Kahn are privileged from disclosure.")

Case Date Jurisdiction State Cite Checked
2017-08-22 Federal NJ
Comment:

key case


Chapter: 10.5

Case Name: Gottwald v. Sebert, 63 N.Y.S.3d 818 (N.Y. Sup. Ct. 2017)
February 7, 2018 (PRIVILEGE POINT)

"Public Relations Consultants Are Nearly Always Outside Privilege Protection"

In an important data breach investigation case discussed in a previous Privilege Point, the court held that the privilege did not protect communications between Premera and its public relations firm, because "drafting press releases relating to a security breach is a business function," and "[h]aving outside counsel hire a public relations firm is insufficient to cloak that business function with the attorney-client privilege." In re Premera Blue Cross Customer Data Sec. Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762, at *16 (D. Or. Oct. 27, 2017).

A few weeks later, another court reached the same conclusion about a public relations firm hired by famed lawyer Mark Geragos, who was representing the singer Kesha in high-profile litigation. Gottwald v. Sebert, 63 N.Y.S.3d 818 (N.Y. Sup. Ct. 2017). After reviewing communications between the public relations firm and Kesha's lawyers, the court concluded that Geragos and the other lawyers disclosed privileged communications to the PR consultant "primarily for the purpose of advancing a public relations strategy – and not for the purpose of developing or furthering a legal strategy." Id. at 826. Thus, "most of the legal advice discussed with [the public relations firm] lost the protection of the attorney-client privilege." Id. The court inexplicably failed to address the availability of work product protection for some disclosed documents, which normally would survive disclosure to a friendly third party such as a public relations consultant.

Public relations firms often play a critical role in high-profile media-covered litigation. While most courts would hold that disclosing work product to such consultants would not forfeit that protection, lawyers should remember that disclosing pre-litigation purely privileged communications normally will waive that more fragile protection.

Case Date Jurisdiction State Cite Checked
2017-01-01 Federal NY
Comment:

key case


Chapter: 10.5

Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2016 U.S. Dist. LEXIS 160602 (S.D.N.Y. Nov. 18, 2016)
("Document 15 is a redlined draft of proposed amendments to an agreement with Uretek that were made by a non-attorney member of the legal department, under the direction of Attorney Castellano. While there is no indication that it was prepared in anticipation of litigation so as to qualify it for protection under the work product doctrine, it was legal advice 'communicated' to the client when it was turned over to YKK Corporation's document custodian Yoshimine Kobayashi. As such, it is subject to attorney-client privilege and need not be produced.")

Case Date Jurisdiction State Cite Checked
2016-11-18 Federal NY

Chapter: 10.5

Case Name: Patel v. Kensol-Franklin, Inc., Civ. A. No. 3:14-1439, 2016 U.S. Dist. LEXIS 36684 (M.D. Pa. March 22, 2016)
(in a bad faith insurance case, analyzing privilege and work product protection for a post-accident investigation; finding that both protections applied; "These cases certainly support Letica's contention that the attorney-client privilege and the work-product doctrine protect communications made between its in-house attorney Michael and Hunter as well as the communications between Michael and the other employees of Letica. After the accident, attorney Michael conducted interviews of eyewitness employees of Letica and others who had knowledge of or facts relating to the event. Interviews were also performed by supervisory employees of Letica at attorney Michael's direction. Hunter then prepared the investigation report at the direction of attorney Michael.")

Case Date Jurisdiction State Cite Checked
2016-03-22 Federal PA
Comment:

key case


Chapter: 10.5

Case Name: Waters v. Drake, Case No. 2:14-cv-1704, 2015 U.S. Dist. LEXIS 164179 (S.D. Ohio Dec. 8, 2015)
(analyzing privilege issues in connection with Ohio State's investigation of its band's director's termination; concluding disclosing privileged documents to a public relations agency probably waived privilege protection, but finding it unnecessary to reach that issue because the requested documents were not relevant; "If Mr. Culley, even though he was legal counsel, involved the public relations firms not as part of his effort to provide legal advice to the University, but as part of an effort to craft announcements which would be more palatable to the media or the public, he was not using the consultants in order to help him as a lawyer, but to help the University as a public institution anticipating a public relations campaign. Under that scenario, sharing otherwise privileged documents with the consultant is a waiver of the attorney-client privilege, and communications directly with the consultant are not privileged at all."; "On the current state of the record, it would be difficult for the Court to conclude that all of these communications were protected by the attorney-client or that providing the public relations firms with otherwise privileged documents was not a waiver.")

Case Date Jurisdiction State Cite Checked
2015-12-08 Federal OH
Comment:

key case


Chapter: 10.5

Case Name: Stormo v. City of Sioux Falls, 4:12-CV-04057-KES, 2015 U.S. Dist. LEXIS 115111 (D.S.D. Aug. 31, 2015)
(holding that an inadequate log did not result in a waiver; "Four of the documents listed in the log were authored by city attorneys Shawn Tornow or Paul Bengford, persons who were known to plaintiff to be city attorneys. Id. Seven documents were written by Kathy Rockwell, a legal assistant in the city attorney's office, though Ms. Rockwell's title was not given.")

Case Date Jurisdiction State Cite Checked
2015-08-31 Federal SD

Chapter: 10.5

Case Name: Agence Fr. Presse v. Morel, No. 10 Civ. 2730 (WHP) (MHD), 2011 U.S. Dist. LEXIS 126025, at *3 (S.D.N.Y. Oct. 28, 2011)
("A large number of documents reflect communications between business employees of Getty and either counsel directly or a paralegal who has operated as agent for counsel.")

Case Date Jurisdiction State Cite Checked
2011-10-28 Federal NY B 10/12

Chapter: 10.7

Case Name: Durling v. Papa John's Int'l, Inc., 16 Civ. 3592 (CS) (JCM), 2018 U.S. Dist. LEXIS 11584 (S.D.N.Y. Jan. 24, 2018)
(finding that a client agent/consultant analyzed the appropriate reimbursement for delivery drivers was not the function equivalent of a Papa John's employee, and was outside privilege protection; also finding that the work product doctrine did not protect documents created by the agent/consultant because it was not motivated by litigation; "[T]he principle of Kovel does not shield communications between PJI [Papa John's] and Motus [Client agent/consultant] because Motus's role was not as a translator or interpreter of client communications. . . . PJI retained Motus not to improve the comprehension of the communications between attorney and client, but rather to obtain information that PJI did not already have.")

Case Date Jurisdiction State Cite Checked
2018-01-24 Federal NY
Comment:

key case


Chapter: 10.9

Case Name: Williams v. Big Picture Loans, LLC, Civ. A. No. 3:18-mc-1, 2018 U.S. Dist. LEXIS 43775 (E.D. Va. March 16, 2018)
(in an opinion by Judge Payne, applying the same privilege standard for client agents/consultants and lawyer agents/consultants; "[E]ven where the client rather than the attorney has engaged the agent, the privilege only attaches if the agent's work is intended to help the attorney provide legal services -- the precise conclusion reached by Kovel and the cases that have interpreted it. Consequently, those cases are instructive here despite the differences in the identity of the party hiring the agent."; "Aranca [Consultant retained to prevent a fair market value opinion] was engaged to better help Martorello understand the effect of the Bellicose sale and the Note on his taxes. Courts have rejected the extension of the attorney-client privilege in similar circumstances. . . . Martorello was not the subject of any investigation or proceeding at the time he engaged Aranca, and he has not identified how Aranca's work helped his attorneys provide legal instead of tax services.")

Case Date Jurisdiction State Cite Checked
2018-03-16 Federal VA

Chapter: 10.9

Case Name: Sidibe v. Health, Case No. 12-cv-04854-LB, 2018 U.S. Dist. LEXIS 20350 (N.D. Cal. Feb. 7, 2018)
(holding that a third party consultant was outside privilege protection; "There are certain exceptions where the privilege extends to communications involving a third party, such as certain situations in which the third party is necessary to interpret the client's statements to the attorney. See id. at 1071 (citing United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961) (discussing example)). But privilege does not extend to situations 'in which the [third party] is enlisted merely to give his or her own advice about the client's situation.' Id. at 1072 (emphasis modified). '[A] communication between an attorney and a third party does not become shielded by the privilege solely because the communication proves important to the attorney's ability to represent the client.' Id. (internal ellipsis omitted) (quoting United States v. Adlman, 68 F.3d 1495, 1500 (2d Cir. 1995)). Rather, '[t]he third-party communications must be interpretive and serve to translate informative information between the client and attorney' to be privileged. Cohen v. Trump, No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542, 2015 WL 3617124, at *14 (S.D. Cal. June 9, 2015) (citing cases)."; "This consultant-created document does not appear to contain or rely on any communications between Sutter and its attorneys, much less any confidential communications made for the purposes of seeking legal advice. The consultant was not interpreting or translating any information from Sutter for its attorneys. Rather, it appears that the consultant compiled its own business (not legal) analysis wholly independently of any confidential information that Sutter communicated to its attorneys for the purposes of seeking legal advice. The fact that Sutter's attorneys might have been the ones who retained the consultant and that the consultant's report was useful to the attorneys does not render the consultant's report privileged. See Cohen, 2015 U.S. Dist. LEXIS 74542, 2015 WL 3617124, at *14; Chevron Texaco, 241 F. Supp. 2d at 1071-72. The court finds that Sutter has not met its burden of establishing that this document is privileged.")

Case Date Jurisdiction State Cite Checked
2018-02-07 Federal CA
Comment:

key case


Chapter: 10.9

Case Name: Durling v. Papa John's Int'l, Inc., 16 Civ. 3592 (CS) (JCM), 2018 U.S. Dist. LEXIS 11584 (S.D.N.Y. Jan. 24, 2018)
(finding that a client agent/consultant analyzed the appropriate reimbursement for delivery drivers was not the function equivalent of a Papa John's employee, and was outside privilege protection; also finding that the work product doctrine did not protect documents created by the agent/consultant because it was not motivated by litigation; "[T]he principle of Kovel does not shield communications between PJI [Papa John's] and Motus [Client agent/consultant] because Motus's role was not as a translator or interpreter of client communications. . . . PJI retained Motus not to improve the comprehension of the communications between attorney and client, but rather to obtain information that PJI did not already have.")

Case Date Jurisdiction State Cite Checked
2018-01-24 Federal NY
Comment:

key case


Chapter: 10.9

Case Name: Albin Family Recovable Living Trust v. Halliburton Energy Servs., Case No. CIV-16-910-M, 2018 U.S. Dist. LEXIS 5192 (W.D. Okla. Jan. 11, 2018)
(finding that an Oklahoma Department of Environmental Quality proceeding did not count as "litigation" for work product protection purposes; "Having carefully reviewed the parties' submissions, the Court finds the attorney-client privilege would apply to any communications between defendant's counsel (whether in-house counsel or outside counsel) and SAIC, their environmental consultant, if the communication is made to assist counsel in giving legal advice to defendant and the confidential nature of the communication has been maintained. Defendant has submitted sufficient evidence, by way of the affidavits of its counsel attached to its response, that counsel retained SAIC to consult with and assist them in order to render advice to defendant. Whether the confidential nature of the communication has been maintained is a finding that must be made as to each specific document, which for purposes of this Order, the Court has not made.")

Case Date Jurisdiction State Cite Checked
2018-01-11 Federal OK
Comment:

key case


Chapter: 10.9

Case Name: Selby v. O'Dea, No. 1-15-1572, 2017 Ill. App. LEXIS 749 (Ill. App. 1d 4th Div. Dec. 7, 2017)
(affirming and explaining the contours of the common interest doctrine under Illinois law; "[T]he attorney-client privilege in Illinois already protects statements made by the client to necessary agents of the attorney or client, including certain nontestifying experts and investigators who assist in the preparation of the case.")

Case Date Jurisdiction State Cite Checked
2017-12-07 State IL

Chapter: 10.9

Case Name: Gottwald v. Sebert, 653118/2014, 2017 N.Y. Misc. LEXIS 4276 (N.Y. Sup. Ct. Nov. 8, 2017)
(finding that a public relations firm hired by lawyer Mark Geragos on behalf of the singer Keisha was outside privilege protection; "Most federal judges that apply New York privilege law appear to approach attorney communications with public relations firms within the framework of the agency exception to the general rule that communications with non-parties waives the privilege."; "The court's in camera review of the logged documents reveal a public relations strategy that may well bear on motive and malice. The goal of that strategy, as Kesha's counsel admitted in open court, was to induce Gottwald to quickly settle, and to seek to influence the prospective jury pool. . . . It is not this court's place to opine on the merits or effectiveness of a public relations strategy. This court, however, is well suited to distinguish between a public relations strategy and a legal strategy. Most of the withheld documents reflect the former. To be sure, some of the communications do indeed reflect Kesha's counsel's legal advice and mental impressions, which ordinarily would be privileged. However, by discussing such matters with a public relations firm primarily for the purpose of advancing a public relations strategy -- and not for the purpose of developing or furthering a legal strategy -- most of the legal advice discussed with Sunshine Sachs lost the protection of the attorney-client privilege."; "[I]f (like a publicly traded company concerned with federal securities laws), counsel and the public relations firm needed to coordinate to ensure that public statements do not expose the client to further liability (e.g., further defamation liability), and the communications' purpose was to craft statements with a view toward that concern, the privilege indisputably would apply. But that is not what Mr. Geragos and Sunshine Sachs were doing. Rather, their focus was to play the public relations angle of every development in the case. That is not coordination to facilitate legal advice. . . . Simply put, for the most part, Mr. Geragos coordinated with Sunshine Sachs to ensure that the legal developments of the case were being given their desired media spin. To this court's knowledge, no court has ever held such types of communications to be privileged."; "This court will not be the first to do so. The attorney-client privilege is meant to facilitate a client's ability and willingness to communicate frankly with a lawyer to maximize the lawyer's capacity to competently provide legal advice. Extending the privilege over communications merely meant to further media spin of a case is not consistent with the policy behind the privilege. Since the privilege hinders the truth-seeking process, there must be compelling grounds to keep truth-revealing evidence from the finder of fact. Holding that a public relations campaign designed to impel settlement is not privileged does not impair a client's ability to obtain competent legal advice. Such a holding should not chill candid communication between the lawyer and client, nor should it impair a lawyer's ability to seek expert advice when necessary.")

Case Date Jurisdiction State Cite Checked
2017-11-08 State NY
Comment:

key case


Chapter: 10.9

Case Name: In re Premera Blue Cross Customer Data Sec. Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762, at *16 (D. Or. Oct. 27, 2017)
February 7, 2018 (PRIVILEGE POINT)

"Public Relations Consultants Are Nearly Always Outside Privilege Protection"

In an important data breach investigation case discussed in a previous Privilege Point, the court held that the privilege did not protect communications between Premera and its public relations firm, because "drafting press releases relating to a security breach is a business function," and "[h]aving outside counsel hire a public relations firm is insufficient to cloak that business function with the attorney-client privilege." In re Premera Blue Cross Customer Data Sec. Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762, at *16 (D. Or. Oct. 27, 2017).

A few weeks later, another court reached the same conclusion about a public relations firm hired by famed lawyer Mark Geragos, who was representing the singer Kesha in high-profile litigation. Gottwald v. Sebert, 63 N.Y.S.3d 818 (N.Y. Sup. Ct. 2017). After reviewing communications between the public relations firm and Kesha's lawyers, the court concluded that Geragos and the other lawyers disclosed privileged communications to the PR consultant "primarily for the purpose of advancing a public relations strategy – and not for the purpose of developing or furthering a legal strategy." Id. at 826. Thus, "most of the legal advice discussed with [the public relations firm] lost the protection of the attorney-client privilege." Id. The court inexplicably failed to address the availability of work product protection for some disclosed documents, which normally would survive disclosure to a friendly third party such as a public relations consultant.

Public relations firms often play a critical role in high-profile media-covered litigation. While most courts would hold that disclosing work product to such consultants would not forfeit that protection, lawyers should remember that disclosing pre-litigation purely privileged communications normally will waive that more fragile protection.

Case Date Jurisdiction State Cite Checked
2017-10-27 Federal OR
Comment:

key case


Chapter: 10.9

Case Name: Legends Mgmt. Co., LLC v. Affiliated Ins. Co., Civ. A. No. 2:16-CV-01608-SDW-SCM, 2017 U.S. Dist. LEXIS 134020 (D.N.J. Aug. 22, 2017)
(in a first-party insurance case, holding that the lawyer's consultant was inside privilege protection; "The Court also finds that three e-mails authored by Peter Kahn ('Mr. Kahn'), a forensic accountant retained by Podvey Meanor to assist in providing legal advice, are privileged. Communications exchanged with consultants are not automatically privileged just because in-house or outside counsel is 'copied in' on correspondence; however, 'if the express purpose of the communication was to relay information for the purpose of seeking legal advice . . . the privilege attach[es].' Based on in camera review, in-house and outside counsel were not merely 'copied in' on the communications. The 'express purpose' of Mr. Kahn's e-mails was to relay his accounting expertise and allow Podvey Meanor to render legal assistance as to existing and potential coverage issues arising from the Legends Parties' insurance claims. In other words, Mr. Kahn's e-mails were sent in confidence 'to relay information for the purpose of seeking legal advice.' For these reasons, the redacted and withheld documents authored by Mr. Kahn are privileged from disclosure.")

Case Date Jurisdiction State Cite Checked
2017-08-22 Federal NJ
Comment:

key case


Chapter: 10.9

Case Name: Legends Management Co. v. Affiliated Insurance Co., Civ. A. No. 2:16-CV-01608-SDW-SCM, 2017 U.S. Dist. LEXIS 134020 (D.N.J. Aug. 22, 2017)
November 8, 2017 (PRIVILEGE POINT)

"How Can Law Firms Help Maximize Privilege Protection for Consultants They Hire?"

Last week's Privilege Point highlighted the difficulty of establishing that client agents/consultants are inside privilege protection. In contrast, lawyer’s agents/consultants can deserve privilege protection – but only if they assist those lawyers in giving legal advice. But lawyers cannot automatically assure protection by retaining such agents/consultants themselves or jointly with their clients (as Pierce Atwood learned in one of the cases discussed last week).

As in so many other contexts, the underlying documents must support any assertion that lawyers' agents/consultants helped them give legal advice. In Legends Management Co. v. Affiliated Insurance Co., Civ. A. No. 2:16-CV-01608-SDW-SCM, 2017 U.S. Dist. LEXIS 134020 (D.N.J. Aug. 22, 2017), the court held that a forensic accountant retained by a law firm was inside privilege protection. The court warned that "[c]ommunications exchanged with consultants are not automatically privileged just because in-house or outside counsel is 'copied in' on correspondence." Id. at *10. Significantly, the court reviewed the withheld correspondence in camera, and agreed that "[t]he 'express purpose' of [the forensic accountant's] emails was to relay his accounting expertise and allow [the law firm] to render legal assistance." Id.

Lawyers, their clients, and their agents/consultants should remember that courts will often examine any withheld documents for proof that either client’s or lawyer’s agents/consultants facilitated or assisted lawyers in advising their clients.

Case Date Jurisdiction State Cite Checked
2017-08-22 Federal NJ
Comment:

key case


Chapter: 10.9

Case Name: Portland Pipe Line Corp. v. City of S. Portland, No. 2:15-cv-00054-JAW, 2017 U.S. Dist. LEXIS 135704, at *9, *17 (D. Me. Aug. 14, 2017)
November 1, 2017 (PRIVILEGE POINT)

"Courts Continue to Catalogue Client Consultants Outside Privilege Protection"

Clients' agents/consultants are nearly always outside privilege protection. This generally means that their documents do not deserve privilege protection; their presence during otherwise privileged communications aborts that protection; and disclosing privileged communications to them waives the protection.

In JBGR LLC v. Chicago Title Insurance Co., No. 35140-11, 2017 N.Y. Misc. LEXIS 3008 (N.Y. Sup. Ct. Aug. 2, 2017) (unpublished opinion), the court held that the plaintiff's land-use consultant's presence at an otherwise privileged meeting destroyed the privilege. As the court explained, "while [the consultant's] advice may have been important to the legal advice given to the plaintiffs by their lawyers, it was not given to facilitate such legal advice." Id. at *8. Less than two weeks later, a federal court similarly held that the privilege did not protect a report prepared by a real estate appraiser "jointly engaged" by the client and its law firm Pierce Atwood. The court concluded that the appraiser "was not employed to assist Pierce Atwood in rendering legal advice." Portland Pipe Line Corp. v. City of S. Portland, No. 2:15-cv-00054-JAW, 2017 U.S. Dist. LEXIS 135704, at *9, *17 (D. Me. Aug. 14, 2017).

Even sophisticated corporate clients often do not understand that their agents'/consultants' involvement during privileged communications or as recipients of privileged communications usually destroys that protection. Clients sometimes erroneously think that confidentiality arrangements with such agents/consultants will avoid waiving privilege protection. That is incorrect – such agreements generally are irrelevant in analyzing privilege waiver issues.

Case Date Jurisdiction State Cite Checked
2017-08-14 Federal ME
Comment:

key case


Chapter: 10.9

Case Name: Portland Pipe Line Corporation v. City of South Portland, 2:15-cv-00054-JAW, 2017 U.S. Dist. LEXIS 135704 (D. Me. Aug. 14, 2017)
(holding that a real estate appraiser was outside privilege protection, meaning that the client waived the privilege protection when a protected draft was shared with the appraiser; "To summarize, the Document is an excerpt of a draft appraisal report prepared by Mr. Lloyd [Real estate appraiser] in support of PPLC's tax abatement application to the City of South Portland. A staff person at Pierce Atwood 'technically' created the Document by copying the text of the draft report into a word processor. Pierce Atwood attorneys edited the text in the Document, and PPLC sent the edits to Mr. Lloyd, who in turn incorporated the edits into his final Report. Based on these facts, the Court must determine whether the Document is entitled to protection, and if so, whether the Plaintiffs have waived that protection."; "The facts of the present case demonstrate that the exception for necessary third-parties does not apply in this case. Mr. Lloyd was not employed to assist Pierce Atwood in rendering legal advice to PPLC. Rather, Mr. Lloyd was employed to create an appraisal report of PPLC's property. . . . Pierce Atwood created the Document as a way to edit Mr. Lloyd's draft of the appraisal report. . . . As the Plaintiffs admit, Pierce Atwood sent the Document directly to PPLC, and PPLC forwarded the Document to Mr. Lloyd. . . . There is no indication that PPLC sent Mr. Lloyd the Document 'for the purpose of obtaining legal advice' from Pierce Atwood. Instead, it appears that PPLC forwarded the Document to Mr. Lloyd so that Mr. Lloyd could make the suggested changes to his draft report. . . . ('[W]e respectfully request you make the following edits to pages 5 to 7 of the appraisal reports'). Disclosing the Document to Mr. Lloyd destroyed the confidentiality upon which the attorney-client privilege is based. . . . Consequently, the Plaintiffs failed to meet their burden of establishing that the Document is entitled to the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-08-14 Federal ME

Chapter: 10.9

Case Name: JBGR LLC v. Chicago Title Insurance Co., No. 35140-11, 2017 N.Y. Misc. LEXIS 3008 (N.Y. Sup. Ct. Aug. 2, 2017)
November 1, 2017 (PRIVILEGE POINT)

"Courts Continue to Catalogue Client Consultants Outside Privilege Protection"

Clients' agents/consultants are nearly always outside privilege protection. This generally means that their documents do not deserve privilege protection; their presence during otherwise privileged communications aborts that protection; and disclosing privileged communications to them waives the protection.

In JBGR LLC v. Chicago Title Insurance Co., No. 35140-11, 2017 N.Y. Misc. LEXIS 3008 (N.Y. Sup. Ct. Aug. 2, 2017) (unpublished opinion), the court held that the plaintiff's land-use consultant's presence at an otherwise privileged meeting destroyed the privilege. As the court explained, "while [the consultant's] advice may have been important to the legal advice given to the plaintiffs by their lawyers, it was not given to facilitate such legal advice." Id. at *8. Less than two weeks later, a federal court similarly held that the privilege did not protect a report prepared by a real estate appraiser "jointly engaged" by the client and its law firm Pierce Atwood. The court concluded that the appraiser "was not employed to assist Pierce Atwood in rendering legal advice." Portland Pipe Line Corp. v. City of S. Portland, No. 2:15-cv-00054-JAW, 2017 U.S. Dist. LEXIS 135704, at *9, *17 (D. Me. Aug. 14, 2017).

Even sophisticated corporate clients often do not understand that their agents'/consultants' involvement during privileged communications or as recipients of privileged communications usually destroys that protection. Clients sometimes erroneously think that confidentiality arrangements with such agents/consultants will avoid waiving privilege protection. That is incorrect – such agreements generally are irrelevant in analyzing privilege waiver issues.

Case Date Jurisdiction State Cite Checked
2017-08-02 Federal NY
Comment:

key case


Chapter: 10.9

Case Name: Behunin v. The Superior Court of L.A. County, B272225, 2017 Cal. App. 227 (Cal. App. March 14, 2017)
(finding that the privilege did not protect communications to and from an outside PR agency hired by plaintiff's lawyer; "As part of a plan to induce the Schwabs to settle the lawsuit, Behunin's attorneys, Leonard Steiner and Steiner & Libo, engaged a public relations consultant, Levick Strategic Communications, to create a website containing information linking the Schwabs and their real estate investments in Indonesia to the family of former Indonesian dictator Suharto."; "The questions in this proceeding are whether the communications among Behunin, Steiner, and Levick were confidential, attorney-client privileged communications and whether disclosure to Levick waived the privilege. We conclude that, although in some circumstances the attorney-client privilege may extend to communications with a public relations consultant, it did not do so in this case because Behunin failed to prove the disclosure of the communications to Levick was reasonably necessary for Steiner's representation of Behunin in his lawsuit against the Schwabs. Therefore, we deny Behunin's petition for a writ of mandate."; "Behunin argues, 'As a third party litigation consultant, Levick must be treated in the same manner as any other third party intermediary engaged to further litigation objectives, just like an expert or consultant who aids an attorney in litigation and who performs litigation-related work.' For disclosure of communications by Steiner or Behunin to Levick to be protected by the attorney-client privilege under section 952 and section 912, subdivision (d), however, the disclosure must have been reasonably necessary for the accomplishment of the purpose for which Behunin consulted Steiner to represent him in the Sealutions litigation."; "There are no California cases analyzing whether a communication disclosed to a public relations consultant is a confidential communication between a client and a lawyer under section 952 or whether such a disclosure waives the attorney-client privilege under section 912. California cases analyzing the exception from a waiver of privilege under section 912, subdivision (d), provide little guidance in determining whether and when sharing a privileged communication with a public relations consultant is 'reasonably necessary' because those cases involve very different factual situations."; "Behunin provided little evidence explaining how or why communications among Levick, Steiner, and himself were reasonably necessary to assist Steiner in his ability to advise Behunin or litigate his case. Behunin produced no evidence showing why his or Steiner's communications with Levick were reasonably necessary to develop a litigation strategy or to induce the Schwabs to settle."; "There may be situations in which an attorney's use of a public relations consultant to develop a litigation strategy or a plan for maneuvering a lawsuit into an optimal position for settlement would make communications between the attorney, the client, and the consultant reasonably necessary for the accomplishment of the purpose for which the attorney was consulted. But this is not that case. Behunin had the burden of showing his and Steiner's communications with Levick were reasonably necessary for the accomplishment of the purpose for which Behunin retained Steiner, which was to provide Behunin with legal advice regarding Sealutions and to represent him in his action against the Schwabs. The discovery referee and the trial judge, both of whom reviewed the documents in camera, found Behunin had not met his burden. . . . There is insufficient evidence in this record for us to reach a contrary conclusion.")

Case Date Jurisdiction State Cite Checked
2017-03-14 Federal CA
Comment:

key case


Chapter: 10.9

Case Name: Leblanc v. Texas Brine Co., LLC, Case No. CIV-16-1026-D, 2017 U.S. Dist. LEXIS 31822 (W.D. Okla. March 7, 2017)
(analyzing privilege and work product protection for communications to and from a public relations firm hired by the defendant's lawyer; "Despite Texas Brine's blanket claim of privilege, the Court finds that Texas Brine has failed to show that the services it sought from Frontier, Beyer, and Altshuler were solely for the purposes of obtaining legal advice. Conversely, the Court finds much of the work done and advice given by Frontier, Beyer, and Altshuler to Texas Brine and its counsel appears to fall outside the realm of legal advice, and therefore, is not protected by the attorney-client privilege. . . . Therefore, the Court denies Texas Brine's Motion as to attorney-client privilege, absent a specific showing of the legal nature of each withheld communication.")

Case Date Jurisdiction State Cite Checked
2017-03-07 Federal OK

Chapter: 10.9

Case Name: Crane Security Technologies, Inc. v. Rolling Optics, AB, Civ. A. No. 14-124280-LTS, 2017 U.S. Dist. 15529 (D. Mass. Feb. 3, 2017)
(finding that Brown Brothers Harrison was inside privilege protection; "Another exception to the rule that disclosing attorney-client communications to a third party destroys the privilege is when an expert, such as an accountant or, as in this case, an investment banker, is employed to assist a lawyer in rendering legal advice."; "The court in Cavallaro [Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir. 2002)], however, stressed that the third-party's assistance must be nearly indispensable or serve some specialized purpose in facilitating attorney-client communications."; "In late 2007, Crane engaged the financial services firm of Brown Brothers Harriman & Co. (BBH) to assist Crane in acquiring NV's patents. The acquisition as a whole involved more than $100 million and BBH was paid $1.25 million for its services."; "Attorney James Hackett was outside counsel to Crane and provided legal advice regarding the acquisition of NV's intellectual property. In his declaration, Attorney Hackett addresses the communications in dispute that he and other attorneys from his law firm exchanged with representatives from BBH from June to September 2008 concerning the acquisition of NV's patents. He states, 'I shared legal advice with Crane's advisors at BBH, in strict confidence, where it was necessary for BBH to facilitate our provision of legal advice.'. . . The communications with BBH were in part concerning the drafting of 'the agreements necessary to accomplish the acquisition.'"; "The court here, following the holding of the First Circuit in Cavallaro [Cavallaro, 284 F.3d at 249], finds that those communications that included BBH, counsel, and Crane that were made in order to facilitate communication between Crane and its attorneys for the purpose of seeking legal advice, that were indispensable to the provision of legal advice, and that were intended to be confidential, are protected."; "Applying the criteria from Cavallaro here, first, there is no question that the communications were intended to be confidential: the court credits the declaration of Attorney Hackett, that the communications were made in 'strict confidence,'. . . and the emails themselves demonstrate that the parties assumed they were confidentially sharing information. With regard to the purpose of the communications at issue, while BBH's engagement letter states only in relevant part that Crane hired BBH to 'assist in coordinating the activities of other professional firms whose services may be required by [Crane], including attorneys. . .", the court accepts Attorney Hackett's assertion that he understood that Crane hired BBH in part to facilitate the provision of legal advice to Crane . . . not only because he states it in his declaration but because the documents themselves demonstrate that Attorney Hackett in fact persistently asked BBH for help in crafting legal advice. The court finds that the advice as related to the clients in the emails is legal advice, not business advice. Therefore, the communications at issue here are for the primary purpose of communicating with the attorney and not with the banker."; "While the First Circuit has not decided a case directly on point, there are cases holding that in certain circumstances financial advisors are 'indispensible' to the provision of legal advice."; "Here, unlike in Ackert [U.S. v. Ackert, 169 F.3d 136 (2nd Cir. 1999)], where an investment banker approached a client with an unsolicited business deal, Crane specifically retained BBH to assist in a particular transaction. The information that BBH was providing cannot be said to have 'somehow come to' Crane's attorneys from a third party . . . . BBH's participation was sought by the client, in part, to assist the attorney. It was more than merely 'important,' as according to Crane's attorney, BBH's advice was necessary, or required, for him to render advice to his client.")

Case Date Jurisdiction State Cite Checked
2017-02-03 Federal MA

Chapter: 10.9

Case Name: Gottwald v. Sebert, 63 N.Y.S.3d 818 (N.Y. Sup. Ct. 2017)
February 7, 2018 (PRIVILEGE POINT)

"Public Relations Consultants Are Nearly Always Outside Privilege Protection"

In an important data breach investigation case discussed in a previous Privilege Point, the court held that the privilege did not protect communications between Premera and its public relations firm, because "drafting press releases relating to a security breach is a business function," and "[h]aving outside counsel hire a public relations firm is insufficient to cloak that business function with the attorney-client privilege." In re Premera Blue Cross Customer Data Sec. Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762, at *16 (D. Or. Oct. 27, 2017).

A few weeks later, another court reached the same conclusion about a public relations firm hired by famed lawyer Mark Geragos, who was representing the singer Kesha in high-profile litigation. Gottwald v. Sebert, 63 N.Y.S.3d 818 (N.Y. Sup. Ct. 2017). After reviewing communications between the public relations firm and Kesha's lawyers, the court concluded that Geragos and the other lawyers disclosed privileged communications to the PR consultant "primarily for the purpose of advancing a public relations strategy – and not for the purpose of developing or furthering a legal strategy." Id. at 826. Thus, "most of the legal advice discussed with [the public relations firm] lost the protection of the attorney-client privilege." Id. The court inexplicably failed to address the availability of work product protection for some disclosed documents, which normally would survive disclosure to a friendly third party such as a public relations consultant.

Public relations firms often play a critical role in high-profile media-covered litigation. While most courts would hold that disclosing work product to such consultants would not forfeit that protection, lawyers should remember that disclosing pre-litigation purely privileged communications normally will waive that more fragile protection.

Case Date Jurisdiction State Cite Checked
2017-01-01 Federal NY
Comment:

key case


Chapter: 10.9

Case Name: Doe v. Phillips Exeter Acad., Civ. No. 16-cv-396-JL, 2016 U.S. Dist. LEXIS 141877, at *5, *8-9 (D.N.H. Oct. 13, 2016)
(finding that defendant Phillips Exeter Academy could not successfully claim privilege protection for a lawyer's investigation into possible sexual misconduct by a student; noting that defendant called the lawyer an "independent investigator," which meant that the lawyer was not assisting the defendant's lawyer in providing legal advice; also finding an implied waiver because the defendant relied on the investigation report in disciplining a student; also finding that defendant waived any possible privilege protection by disclosing portions of the investigation report to parents; inexplicably failing to deal with the work product doctrine; "[D]efendants explain that PEA's outside counsel commissioned Attorney McGintee's reports 'for the purpose of providing legal advice related to the school's handling of this student sexual misconduct matter.' . . . PEA's own statements concerning the purpose of Attorney McGintee's investigation, however, as well as its description of her as an 'independent investigator,' suggest otherwise."; "Finally, PEA's Dean Mischke has consistently described Attorney McGintee as an 'independent investigator' or an 'external investigator' in her communications with the Does and her statements in this court. . . . It seems difficult to reconcile such a description with the argument that Attorney McGintee -- the reports of that 'independent' or 'external' investigator -- acted as an agent of PEA's counsel made for the purposes of obtaining or providing legal advice to PEA. To the contrary, by describing Attorney McGintee as 'independent,' PEA appears to signal that Attorney McGintee was not acting as its outside counsel's agent.").

Case Date Jurisdiction State Cite Checked
2016-10-13 Federal OH
Comment:

key case


Chapter: 10.9

Case Name: Bloomingburg Jewish Education Center v. Village of Bloomingburg, 14-cv-7250 (KBF), 2016 U.S. Dist. LEXIS 35192 (S.D.N.Y. March 18, 2016)
(finding that defendant Town had not presented sufficient evidence to support privilege or work product protection for a communications between the Town and West End, described as "a public relations and communications strategy firm"; analyzing privilege protection; "Based on the Town Defendants' limited proffer of the nature of West End's role in the Lamm action (i.e. Mr. Holland's brief declaration), there is no basis to find that West End performed functions essential to enable counsel in the Lamm action to provide the Town Defendants with legal advice. Although West End's services may have been useful to counsel, Calvin Klein [Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 55 (S.D.N.Y. 2000)] and Haugh [Haugh v. Schroder Inv. Mgmt. N. Am., Inc., No. 02 CIV. 7955 DLC, 2003 U.S. Dist. LEXIS 14586, 2003 WL 21998674, at *3 (S.D.N.Y. Aug. 25, 2003)] demonstrate that such a showing alone is insufficient to find that the attorney-client privilege has not been waived by disclosure to a public relations consultant. . . . Mr. Holland's declaration asserts that he used West End to distill complex facts into digestible pieces and conduct records research that facilitated municipal officials' ability to accurately explain the Lamm case to the public. . . . This explanation, standing alone, does not meet the Town Defendants' burden to show that West End performed a function beyond that which a public relations firm might ordinarily be called upon to do if hired by the Town Defendants directly. While this action has garnered some media attention and the issues involved raise sensitivities on both sides, unlike In re Grand Jury Subpoenas Dated March 24, 2003, here the Town Defendants have not shown that counsel needed West End for any purpose other than communicating with the general public at large. West End's role was clearly not akin to that of a translator as described in Kovel, and thus the attorney-client privilege does not protect the documents over which they assert the privilege.")

Case Date Jurisdiction State Cite Checked
2016-03-18 Federal NY

Chapter: 10.9

Case Name: Certain Underwriters at Lloyd's v. National Railroad Passenger Corporation, 14-CV-4717 (FB), 2016 U.S. Dist. LEXIS 27041 (E.D.N.Y. Feb. 19, 2016)
(holding that London insurance brokers were outside privilege protection because they did not meet the Kovel standard; noting the difference between New York state and New York federal court federal court law on the issue of client agents within privilege protection; "[C]ommunications from a client to a third-party accountant or foreign-language translator hired to assist a lawyer in providing legal advice to that client are protected under the privilege. See United States v. Kovel, 296 F.2d 918, 921-22 (2d Cir. 1961). Here, however, nothing in the record suggests that the London brokers served any analogous role. Rather, it appears that the London brokers acted as nothing more than an intermediary or clearing house for the Policies."; "The thrust of LMI's arguments with respect to attorney-client communications sent through the London brokers is that such a practice was 'standard' and 'necessary' given the London market's structure. . . . LMI's position is unavailing for several reasons. First, the fact that a particular method of distributing and/or retaining documents is standard in an industry does not determine whether that method of distribution comports with the law governing attorney-client privilege."; "Second, although LMI characterizes the utilization of the London brokers as a necessity . . . There is nothing in the record to support a finding that this was the only method by which the U.S. lawyers could communicate with the relevant insurers -- save for a conclusory and ambiguous statement made in the Watson Declaration that this method was the 'only way possible.'")

Case Date Jurisdiction State Cite Checked
2016-02-19 Federal NY

Chapter: 10.9

Case Name: Brinker v. Normandin's, Case No. 14-cv-03007-EJD (HRL), 2016 U.S. Dist. LEXIS 8411, at *8 (N.D. Cal. Jan. 22, 2016)
("True, attorney-client privilege may sometimes attach to communications if a consultant created them for the primary or predominant purpose of facilitating the provision of legal advice . . ., but Normandin has argued only that Jouvenat [consultant] was hired to provide technical assistance to counsel.")

Case Date Jurisdiction State Cite Checked
2016-01-22 Federal CA B 7/16

Chapter: 10.9

Case Name: Lehman Bros. International (Europe) v. AG Financial Prods., Inc., 653284/2011, 2016 N.Y. Misc. LEXIS 323 (N.Y. Sup. Jan. 11, 2016)
(analyzing whether various consultants hired by defendant's lawyers were inside privilege protection; ultimately finding after an in camera review that all but KPMG were inside privilege protection; assuming that the consultants' assistance was necessary to help defendant's lawyer; not analyzing work product protection after finding that the privilege protected the consultants' communications; "Osorio [People v Osorio, (75 NY2d 80, 549 N.E.2d 1183, 550 N.Y.S.2d 612, supra)] and Kovel do not state, nor do the above cases, that the attorney-client privilege will attach to third-party communications only where the participation of the third-party is 'necessary' in order to facilitate the provision of legal advice. There is, however, authority to that effect."; "[E]ven assuming that the communications involving the consultants must have been necessary to facilitate Assured Guaranty's attorneys' provision to it of informed legal advice, the court finds that the record supports the Special Referee's findings that the communications involving Zolfo, ZAIS, and NEAM are protected by the attorney-client privilege, while those involving KPMG are not."; "The Special Referee reviewed the sample set of documents agreed to by the parties and made the following findings. With respect to the Zolfo documents, the Special Referee found that 'the sample set demonstrate[d] that Zolfo was providing assistance to Denton [Defendant's UK lawyers] in conveying legal advice to its client AGFP [Assured Guaranty]' and that 'the communications show that there was ongoing interplay between Denton, Zolfo and AGFP over the decisions that Denton had to advise AGFP about in attempting to settle or litigating the underlying dispute with LBIE.'. . . With respect to the ZAIS and NEAM documents, the Special Referee found that the documents in the sample set demonstrated that 'each of these consultants was providing assistance and guidance that assisted counsel's ability to advise AGFP; specifically they provided information about the valuation issues that were relevant to the settlement talks with LBIE or might ultimately be relevant if litigation ensued.'. . . Further, based on the retention letters and the documents, the Special Referee rejected LBIE's claim that ZAIS and NEAM were not acting as the agents of Assured Guaranty."; "The court further holds that in light of the complexity of the financial instruments and the importance to Assured Guaranty's exercise of its contractual rights of a sophisticated understanding of the market for such instruments, any requirement that the services of financial consultants be 'necessary' to the effective provision of legal advice is satisfied. The reasoning of the Kovel Court in holding that the attorney-client privilege may apply to an accountant's services to a lawyer representing a client in an accounting matter is equally applicable to the services of the financial consultants here. Complex financial instruments 'are a foreign language to some lawyers in almost all cases, and to almost all lawyers in some cases. Hence, the presence of the [financial consultants] . . . Ought not destroy the privilege.")

Case Date Jurisdiction State Cite Checked
2016-01-11 Federal NY
Comment:

key case


Chapter: 10.9

Case Name: NL Industries, Inc. v. ACF Industries LLC, 10CV89W, 2015 U.S. Dist. LEXIS 86677 (W.D.N.Y. July 2, 2015)
(holding that an environmental engineering firm was not within the privilege as a lawyer agent; "One factor in determining whether an expert like AGC [Non-party environmental engineering firm hired by plaintiff to conduct an environmental cleanup] can be cloaked with a derivative privilege from the attorney is which entity retained the expert; was it the attorney or the client?"; "AGC is not a representative of plaintiff's attorney such as are accountants, administrative practitioners not admitted to the bar, or non-testifying experts . . . For documents qualifying as attorney-client communication, inclusion of AGC in the communication does constitute waiver . . . No agency relationship has been established between plaintiff's counsel and AGC to include AGC's correspondence as coming from the attorney for this privilege to apply, despite the notations in the privilege log that certain AGC actions were done at the direction of counsel. Plaintiff has not shown that AGC acted like an interpreter or translator of client communications to shield AGC's correspondence with plaintiff's counsel.")

Case Date Jurisdiction State Cite Checked
2015-07-02 Federal NY

Chapter: 10.9

Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
(analyzing privilege and work product protection for non-party Syracuse University's investigation into possible child molestation by one of the University's coaches; explaining that the coach's wife had sued ESPN, then sought discovery from the University; concluding that the work product doctrine did not apply; holding that the attorney-client privilege did not protect communications between the University's lawyer Debevoise & Plimpton and a public relations firm; "In order for the agency exception to apply, the party claiming privilege must demonstrate that the client: (1) had 'a reasonable expectation of confidentiality under the circumstances, and (2) [that] disclosure to the third party was necessary for the client to obtain informed legal advice.'. . . '[T]he 'necessity' element means more than just useful and convenient, but rather requires that the involvement of the third party be nearly indispensable or serve some specialized purpose in facilitating the attorney-client communications.'. . . 'Thus, where the third party's presence is merely useful but not necessary, the privilege is lost.'")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY

Chapter: 10.9

Case Name: Fine v. ESPN, Inc., No. 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
July 22, 2015 (PRIVILEGE POINT)

"Courts Assess Whether Client and Lawyer Agents are Inside or Outside Privilege Protection: Part II"

Last week's Privilege Point discussed a court's consideration of privilege protection for communications with client and lawyer agents. Two weeks later, another court analyzed Debevoise & Plimpton's argument that the privilege protected its communications with a public relations firm it retained. Debevoise claimed that the public relations firm assisted it in representing its client nonparty Syracuse University in connection with a former coach's wife's defamation action against ESPN. Fine v. ESPN, Inc., No. 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015).

The University relied on affidavits (including one from a Debevoise lawyer) in explaining that the public relations firm (1) "aided [Debevoise] attorneys in providing legal advice to the University on issues of communication and publicity"; (2) "'conferred frequently' with Debevoise"; and (3) "'prepar[ed] drafts of press releases and other materials which incorporated the lawyers' advice.'" Id. At *28-29 (internal citations and quotation marks omitted). The court rejected the privilege claim — noting that "[i]f public relations support is merely helpful, but not necessary to the provision of legal advice," the privilege does not apply. Id. At *32. The court also noted that the magistrate judge had reviewed the withheld communications in camera, and found that most of them "did not contain communications related to obtaining legal advice." Id. At *31. The court therefore held that Debevoise had lost the client's privilege by communicating with the public relations firm — even though Debevoise had retained the firm and supplied an affidavit supporting the privilege claim. The court also observed that the magistrate judge had earlier rejected the University's work product claim — finding that the University had conducted "for business purposes" its investigation into child molestation claims against the coach. Id. At *5.

Even sophisticated clients and law firms can underestimate the privilege's narrowness and fragility. If lawyers find it necessary to work with agents, their communications should reflect why and how.

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY
Comment:

key case


Chapter: 10.9

Case Name: Malbco Holdings, LLC v. Patel, No. 6:14-cv-00947-PK, 2015 U.S. Dist. LEXIS 62501 (D. Ore. May 13, 2015)
July 15, 2015 (PRIVILEGE POINT)

"Courts Assess Whether Client and Lawyer Agents are Inside or Outside Privilege Protection: Part I"

Lawyers and most clients understand that disclosing privileged communications to adversaries waives that delicate protection. But clients lose privilege protection far more frequently when they or their lawyers disclose privileged communications to friendly third parties — such as agents or consultants working with the clients or with the lawyers.

In Malbco Holdings, LLC v. Patel, No. 6:14-cv-00947-PK, 2015 U.S. Dist. LEXIS 62501 (D. Ore. May 13, 2015), plaintiff argued that defendants forfeited their privilege protection by including their adult children in otherwise privileged communications with their lawyer. The court found that the children were inside the privilege, noting that Oregon's statutory privilege allowed "the inclusion of a client's family members on privileged communication regarding matters of joint concern." Id. At *6. The court then considered whether (1) defendants' "[accountant] was assisting [defendants' lawyer] in the rendition of his legal services," and thus inside the privilege, or (2) defendants' lawyer "was enlisted to advise [the accountant] in her work preparing gift tax returns" for the defendant, which would have placed the accountant outside the defendants' privilege. Id. At *8. The court ordered an in camera review of the withheld communications so it could determine the privilege's applicability.

Clients and their lawyers involving any third parties in their communications should consider the waiver risks, and assure that the communications would support a valid privilege claim if courts review them in camera. Next week's Privilege Point will address another example.

Case Date Jurisdiction State Cite Checked
2015-05-13 Federal OR
Comment:

key case


Chapter: 10.9

Case Name: Conway v. Licata, Civ. A. No. 13-12193-LTS, 2015 U.S. Dist. LEXIS 61276 (D. Mass. May 8, 2015)
(holding that a lawyer's consultant was outside the privilege because the consultant's role was not necessary; not explaining what the consultant did; "Plaintiffs assert that Mitchell ["who worked with Plaintiffs around the time that the relationship between Plaintiffs and Defendants was dissolving and thereafter"] was an agent of Plaintiffs in procuring a lawyer and, later, acted as a 'conduit of information from the Plaintiffs' to their attorney. . . . As such, Plaintiffs argue, Mitchell's involvement in these conversations does not destroy the attorney-client privilege, citing the 'intermediary doctrine.'"; "Courts, however, have recognized an exception where 'third parties [are] employed to assist a lawyer in rendering legal advice.'. . . In order for privilege to attach in this circumstance, the presence of the third party in the communications between lawyer and client must be 'necessary, or at least highly useful, for the effective consultation between the client and the lawyer which the privilege is designed to permit." Necessary means 'more than just useful and convenient'; rather, the 'involvement of the third party must be nearly indispensable or serve some specialized purpose in facilitating the attorney-client communications.'"; "Here, Plaintiff has not shown Mitchell's involvement to be 'nearly indispensable' to communicating with counsel. The only evidence regarding Mitchell's utility in conversing with counsel is Mr. Conway's affidavit in which he states that Mitchell 'introduce[ed]' Plaintiffs to legal counsel, 'assisted' in conversations with counsel, and 'assisted' with negotiating a separate agreement. . . . There is no evidence showing Mitchell to be necessary or highly useful to the consultation between Plaintiffs and their counsel. In fact, there is no evidence at all detailing how Mitchell served to facilitate attorney-client communications. Plaintiffs' claim that Mitchell was acting as their agent in their dealings with their attorney is not sufficient, by itself, to bring Mitchell within the privilege. . . . Accordingly, Mitchell's involvement in any communications constituted a waiver of any attorney-client privilege, and thus Plaintiffs have not met their burden to establish the existence of privilege in those communications. To the extent they have not already, Plaintiffs shall produce the documents involving Mitchell within seven days of this Order.")

Case Date Jurisdiction State Cite Checked
2015-05-08 Federal MA
Comment:

key case


Chapter: 10.9

Case Name: Scott v. Chipotle Mexican Grill, Inc., 12-CV-08333 (ALC) (SN), 2015 U.S. Dist. LEXIS 40176 (S.D.N.Y. March 27, 2015)
(finding that defendant's FLSA consultant was not within the privilege; "The plaintiffs, meanwhile, have provided the Court with an e-mail chain between Chipotle employees indicating that 'a Consultant working for Chipotle by the name of Cinda Daggett' was coming to Chipotle stores to 'study[] what it is that really good Apprentices do at our restaurants.'. . . This e-mail chain makes no mention of the law or of legal advice, nor does it indicate in any way that the conversations would be privileged or should be kept confidential, thus falling short of the Gucci standard. . . . Likewise, nothing indicates that Daggett was taking information that was incomprehensible to Chipotle's attorneys and putting it into a 'usable form' rather than merely consolidating employee interviews and delivering a factual analysis; there is nothing legal about her report. . . . Chipotle's own HR team could easily have undertaken the same investigation that Daggett did, and in that case, Chipotle would have no argument that its own report was privileged.")

Case Date Jurisdiction State Cite Checked
2015-03-27 Federal NY

Chapter: 10.9

Case Name: Scott v. Chipotle Mexican Grill, Inc., 12-CV-08333 (ALC) (SN), 2015 U.S. Dist. LEXIS 40176 (S.D.N.Y. March 27, 2015)
(finding that defendant's FLSA consultant was not within the privilege; "Regardless of Chipotle's or Messner Reeves's intentions in engaging her, Daggett [Consultant] is an HR consultant, not an attorney, and her report does not provide any specialized knowledge that the attorneys at Messner Reeves could not have acquired or understood on their own or directly through its client. It strains credulity to imagine that an attorney evaluating wage and hours laws would not be able to speak with employees or interpret those laws on his own.")

Case Date Jurisdiction State Cite Checked
2015-03-27 Federal NY
Comment:

key case


Chapter: 10.9

Case Name: Scott v. Chipotle Mexican Grill, Inc., 12-CV-08333 (ALC) (SN), 2015 U.S. Dist. LEXIS 40176 (S.D.N.Y. March 27, 2015)
(finding that defendant's FLSA consultant was not within the privilege; "One way for Chipotle to establish application of the attorney-client privilege would be for it to show that Messner Reeves engaged Daggett [Consultant] as its agent for a specific type of information it could not otherwise obtain. . . . Though Daggett writes that she produced the report at the request of Messner Reeves, neither she nor any documents from Chipotle indicate that she was in fact hired to assist Messner Reeves in providing legal advice. To be sure, the mere statements by Daggett (in writing) and Dominguez and Moore (in depositions) that Daggett was hired by a law firm may not ipse dixit establish privilege ex post facto (particularly, as here, where the report is not labeled confidential or privileged). . . . Here there is 'virtually no contemporaneous documentation supporting the view that' Daggett was hired to, and did in fact, assist Messner Reeves in providing legal advice, rather than providing Chipotle with information to make its ultimate business decision.")

Case Date Jurisdiction State Cite Checked
2015-03-27 Federal NY
Comment:

key case


Chapter: 10.9

Case Name: Scott v. Chipotle Mexican Grill, Inc., No. 12-CV-08333 (ALC) (SN), 2015 U.S. Dist. LEXIS 40176 (S.D.N.Y. Mar. 27, 2015)
May 13, 2015 (PRIVILEGE POINT)

"Southern District of New York Reiterates its Narrow View of Privilege Protection for Consultants Assisting Lawyers"

Client agents/consultants normally fall outside privilege protection, unless they help facilitate communications between the client and lawyer. Recognizing this, some lawyers seek privilege protection by hiring the consultants themselves, arguing that the consultants are helping them provide legal advice.

In Scott v. Chipotle Mexican Grill, Inc., No. 12-CV-08333 (ALC) (SN), 2015 U.S. Dist. LEXIS 40176 (S.D.N.Y. Mar. 27, 2015), Judge Netburn continued a long line of Southern District of New York decisions taking a very narrow view of the privilege in that context. Chipotle received advice from its outside law firm about wage and hour issues. The law firm then retained a human resources consultant, who prepared a report for the law firm about Chipotle employees' classifications. The court first rejected Chipotle's argument that the report deserved protection because it went to its law firm — concluding that "this formalism is insufficient to establish that it is a privileged communication." Id. at *23. The court then explained that Chipotle could establish privilege protection only if it proved that its outside law firm "engaged [the consultant] as its agent for a specific type of information that it could not otherwise obtain." Id. at *28. The court concluded that "[i]t strains credulity to imagine that an attorney evaluating wage and hours laws would not be able to speak with employees or interpret those laws on his own." Id. at *29. The court ultimately rejected Chipotle's privilege claim — noting that the consultant's report did not "provide any specialized knowledge that [Chipotle’s outside lawyers] could not have acquired or understood on their own or directly through [their] clients." Id.

Lawyers should not assume that they can assure privilege protection merely by retaining a consultant to gather facts. Most courts require that consultants directly assist lawyers in giving legal advice — by gathering facts or providing other services the lawyers or the clients need, but could not undertake themselves.

Case Date Jurisdiction State Cite Checked
2015-03-27 Federal NY
Comment:

key case


Chapter: 10.9

Case Name: United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *5 (W.D. Wis. Feb. 10, 2015)
April 8, 2015 (PRIVILEGE POINT)

“Court Condemns Law Firm's Privilege Claim as "Subterfuge": Part I”

Some companies begin internal investigations or audits for business reasons, but later try to cloak related communications and documents with work product privilege protection. Although some companies successfully argue that a business-related investigation "morphed" into a privilege-protected investigation, most attempts fail.

In United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *5 (W.D. Wis. Feb. 10, 2015), NeuroScience retained a regulatory compliance company (CodeMap) to conduct a "full, flat-fee compliance audit" of its billing practices after its billing manager suddenly resigned. About a month later, CodeMap reported that NeuroScience had overbilled Medicare and some insurance companies. In the meantime, NeuroScience's outside Minneapolis law firm learned that the ex-billing manager had accused the company of fraudulent billing practices. About ten days later, NeuroScience and its law firm agreed that the law firm "should supervise the remainder of CodeMap's audit activities." Id. at *7. CodeMap sent a Services Proposal indicating that the law firm would now direct CodeMap's "baseline" compliance audit, and stating that related communications would deserve privilege and work product protection. Id. However, CodeMap later admitted that (1) "counsel really did not provide much internal 'direction' to CodeMap at all" (id. at *8); (2) lawyers were not present when CodeMap auditors met with NeuroScience employees; and (3) lawyers generally did not receive copies of email message traffic between CodeMap and company employees during the audit. CodeMap's chief auditor later acknowledged that "'[b]y the time Counsel was involved, CodeMap already knew the work to be done and how to do it, so the legal oversight, as [he] understood it, was to maintain privilege.'" Id. at *9-10 (internal citation omitted).

Next week's Privilege Point will describe the court's work product and attorney-client privilege analysis.

Case Date Jurisdiction State Cite Checked
2015-02-10 Federal WI
Comment:

key case


Chapter: 10.9

Case Name: United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *7 (W.D. Wis. Feb. 10, 2015)
April 15, 2015 (PRIVILEGE POINT)

“Court Condemns Law Firm's Privilege Claim as "Subterfuge": Part II”

Last week's Privilege Point described an outside regulatory compliance consultant's work for a company which worried about its non-compliant billing practices and about possible litigation, that consultant's later agreement to work under outside lawyers' "direction," and the admitted lack of any such day-to-day direction. United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *7 (W.D. Wis. Feb. 10, 2015).

The court first rejected NeuroScience's work product claim. The court held that the company hired the compliance auditor CodeMap for business purposes, and that lawyers' later involvement "was a tactic designed solely to cloak the audit documents" with some protection. Id. at *17. The court concluded that the outside lawyers "in fact provided no direction at all," and found no evidence that "CodeMap changed the focus of its audit or conducted it any differently after it was agreed that the Services Proposal should be routed through counsel." Id. at *18. Although outside lawyers used the audit's result, the court explained that "the focus is on the circumstances of the communication at the time it was made." Id. The court also rejected NeuroScience's privilege claim. The court noted that the company hired CodeMap "without any direction from counsel," and that CodeMap "conducted and completed [its] coding review and transmitted the results" to NeuroScience before any lawyer's involvement. Id. at *24. And after the lawyers' "post-hoc retention of CodeMap," there was no evidence that "the focus of CodeMap's audits changed." Id. at *25. The court therefore concluded that "there is no question that [the outside law firm's] retention of CodeMap was a subterfuge specifically designed to cloak the audits with privilege." Id. at *26.

This and other similar cases highlight the wisdom of involving lawyers at the first hint of a problem, and assuring their intense hands-on involvement in any consultants' work the company intends to withhold as privileged or as work product.

Case Date Jurisdiction State Cite Checked
2015-02-10 Federal WI
Comment:

key case


Chapter: 10.9

Case Name: Church & Dwight Co. Inc. v. SPD Swiss Precision Diagnostics, GmbH, No. 14-cv-585, 2014 U.S. Dist. LEXIS 175552 (S.D.N.Y. Dec. 19, 2014)
February 18, 2015 (PRIVILEGE POINT)

“A Southern District of New York Decision Adopts Narrow Views of Privilege Protection for Independent Contractors and Lawyer-Retained Consultants: Part II”

Last week's Privilege Point described the Southern District of New York's prediction that the Second Circuit might reject the widely-accepted "functional equivalent" doctrine. Church & Dwight Co. Inc. v. SPD Swiss Precision Diagnostics, GmbH, No. 14-cv-585, 2014 U.S. Dist. LEXIS 175552 (S.D.N.Y. Dec. 19, 2014). The court also assessed whether the defendant waived its privilege protection by sharing protected communications with an outside marketing consultant — ultimately rejecting defendant's argument that "in light of the complex regulatory scheme to which [its product] was subject, it was essential" to share such privileged communications with the consultant. Id. at *2.

The court noted that agents or consultants considered inside privilege protection were generally translators or similar consultants "necessary to improve comprehension of the communication between attorney and client." Id. at *4. That standard arose in the context of client agents, but many courts inexplicably apply the same approach to lawyer agents. Here, the court found a waiver, because the defendant "makes no showing as to how the outside marketing firm improved counsel's comprehension of [the client's] communications to counsel, or vice versa." Id. at *4-5. Later in the opinion, the court similarly held that lawyers sharing privileged communications with their agents or consultants must show that the agent or consultant "enabled counsel to understand aspects of the client's own communications that could not otherwise be appreciated in the rendering of legal advice." Id. at *6.

Other courts apply the same narrow standard. Three weeks before the Church & Dwight opinion, another court explained that an accountant would have been inside privilege protection as a lawyer's agent only if the accountant was "included in the conversation at the behest of Plaintiff's attorney in order to help decipher the relationship." Yoder v. Long (In re Long), Case No. 09-23473, Adv. No. 09-6172, 2014 Bankr. LEXIS 4879, at *50 (Bankr. D. Kan. Dec. 1, 2014). Applying the same translator/interpreter standard to client agents and lawyer agents can make it very difficult for lawyers to protect their communications with consultants upon whom they legitimately rely when giving their clients legal advice.

Case Date Jurisdiction State Cite Checked
2014-12-19 Federal NY
Comment:

key case


Chapter: 10.9

Case Name: Yoder v. Long (In re Long), Case No. 09-23473, Adv. No. 09-6172, 2014 Bankr. LEXIS 4879, at *50 (Bankr. D. Kan. Dec. 1, 2014)
February 18, 2015 (PRIVILEGE POINT)

“A Southern District of New York Decision Adopts Narrow Views of Privilege Protection for Independent Contractors and Lawyer-Retained Consultants: Part II”

Last week's Privilege Point described the Southern District of New York's prediction that the Second Circuit might reject the widely-accepted "functional equivalent" doctrine. Church & Dwight Co. Inc. v. SPD Swiss Precision Diagnostics, GmbH, No. 14-cv-585, 2014 U.S. Dist. LEXIS 175552 (S.D.N.Y. Dec. 19, 2014). The court also assessed whether the defendant waived its privilege protection by sharing protected communications with an outside marketing consultant — ultimately rejecting defendant's argument that "in light of the complex regulatory scheme to which [its product] was subject, it was essential" to share such privileged communications with the consultant. Id. at *2.

The court noted that agents or consultants considered inside privilege protection were generally translators or similar consultants "necessary to improve comprehension of the communication between attorney and client." Id. at *4. That standard arose in the context of client agents, but many courts inexplicably apply the same approach to lawyer agents. Here, the court found a waiver, because the defendant "makes no showing as to how the outside marketing firm improved counsel's comprehension of [the client's] communications to counsel, or vice versa." Id. at *4-5. Later in the opinion, the court similarly held that lawyers sharing privileged communications with their agents or consultants must show that the agent or consultant "enabled counsel to understand aspects of the client's own communications that could not otherwise be appreciated in the rendering of legal advice." Id. at *6.

Other courts apply the same narrow standard. Three weeks before the Church & Dwight opinion, another court explained that an accountant would have been inside privilege protection as a lawyer's agent only if the accountant was "included in the conversation at the behest of Plaintiff's attorney in order to help decipher the relationship." Yoder v. Long (In re Long), Case No. 09-23473, Adv. No. 09-6172, 2014 Bankr. LEXIS 4879, at *50 (Bankr. D. Kan. Dec. 1, 2014). Applying the same translator/interpreter standard to client agents and lawyer agents can make it very difficult for lawyers to protect their communications with consultants upon whom they legitimately rely when giving their clients legal advice.

Case Date Jurisdiction State Cite Checked
2014-12-01 Federal KS
Comment:

key case


Chapter: 10.9

Case Name: In re Grand Jury Subpoena Dated March 20, 2013, 13-Mc189 (Part I) 2014 U.S. Dis. LEXIS 91901, *21-22 (S.D.N.Y. July 2, 2014)
(analyzing privilege protection for a private investigator; holding that to satisfy the Kovel doctrine the lawyer must hire and control the private investigator, although the client can pay him or her; also finding that the privilege can protect communications between the lawyer and client in the presence of the personal investigator even if the client pays him or her; "But no matter how necessary a private investigator's services might be, communications between an investigator and a client outside the presence of an attorney can only be privileged if the attorney not the client retained the investigator. . . . Thus, in this case, the application of the privilege to communications between John Doe and Investigator depends on who hired Investigator John Doe or Lawyer. The Court concludes that Doe has established, by a preponderance of the evidence, that Lawyer retained Investigator." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2014-07-02 Federal NY

Chapter: 10.9

Case Name: In re Grand Jury Subpoena Dated March 20, 2013, 13-Mc189 (Part I) 2014 U.S. Dis. LEXIS 91901, *20-21 (S.D.N.Y. July 2, 2014)
(analyzing privilege protection for a private investigator; holding that to satisfy the Kovel doctrine the lawyer must hire and control the private investigator, although the client can pay him or her; also finding that the privilege can protect communications between the lawyer and client in the presence of the personal investigator even if the client pays him or her; "The third party must fit within a certain class of professionals whose work 'is necessary, or at least highly useful, for the effective consultation between the client and the lawyer which the privilege is designed to permit.' . . . . The archetypal examples of such professionals are interpreters and accountants. . . Investigators also fit within this category of necessary aides to the provision of legal services.")

Case Date Jurisdiction State Cite Checked
2014-07-02 Federal NY

Chapter: 10.9

Case Name: Woodard v. Victory Records, Inc., No. 11 CV 7594, 2013 U.S. Dist. LEXIS 159498, at *27 (N.D. Ill. Nov. 7, 2013)
(finding that an agent for a musical band was outside the privilege protection; "In this case, while Plaintiffs maintain that Janick acted as the Band's personal manager between late 2009 and mid-2012 and that his job 'included working with the attorneys representing the band on strategy and to facilitate communication and understanding in the relationship between the band and its attorneys,'. . . there is no evidence other than this conclusory assertion to show that Janick truly functioned in this role. There is nothing in writing showing why the Band retained Janick or that otherwise sets forth the exact nature of his employment. Nor is there any evidence demonstrating that Janick provided the Band's counsel with expertise necessary to assist counsel in the rendering legal advice. In other words, there is nothing to suggest that Janick's involvement was critical to the Band's attorneys' ability to advise the Band. Accordingly, the court declines to find that Janick -- as a consultant -- otherwise qualifies as an agent of the Band's attorneys.")

Case Date Jurisdiction State Cite Checked
2013-11-07 Federal IL B 5/14

Chapter: 10.9

Case Name: McNamme v. Clemens, No. 09 CV 1647 (SJ), 2013 U.S. Dist. LEXIS 179763, at *25-26 (E.D.N.Y. Sept. 18, 2013)
(finding that the privilege did not protect communications between Roger Clemens and his lawyer Rusty Hardin and public relations consultant (Householder) retained by Hardin or sports agent Hendricks, who Clemens retained; in addition to finding Clemens' failure to timely submit a privilege log resulted in his waiver of privilege; concluding that neither the public relations consultant nor the sports agent were necessary for Hardin's representation of Clemens; finding the work product doctrine inapplicable; "Defendant has failed to show that the work-product doctrine protects the documents at issue here. Based on the Court's in camera review of the records, the topic of litigation strategy is rarely mentioned and in the rare instances when it is brought up, it is often contained within communications predominately focused on public relations and media strategy. Although the communications sought may have ultimately 'played an important role' in Rusty Hardin's litigation strategy, 'as a general matter public relations advice, even if it bears on anticipated litigation, falls outside the ambit of protection of the so-called 'work product' doctrine. . . . That is because the purpose of the rule is to provide a zone of privacy for strategizing about the conduct of litigation itself, not for strategizing about the effects of the litigation on the client's customers, the media, or on the public generally.'. . . The Court's review of the withheld documents reveal that they deal almost exclusively with the latter.")

Case Date Jurisdiction State Cite Checked
2013-09-18 Federal NY B 2/14

Chapter: 10.9

Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *9-10, *16 (N.D. Ohio Aug. 8, 2013)
(analyzing a situation in which a bankruptcy trustee sought documents from the debtor's accountant; holding that the privilege protected communications from the accountant to a lawyer, but did not protect communications that were merely copied to the lawyer or were from the accountant to the client; finding the Kovel doctrine inapplicable, because the client retained the accountant; "Later cases interpreted Kovel [United States v. Kovel, 296 F.2d 918 (2d. Cir. 1961)] to limit the attorney-client privilege to instances when the accountant functions as a 'translator' between the client and the attorney. . . . Therefore, communications between an attorney and a third party are not privileged solely because the communication is important to the attorney's representation of the client."; "Absent proof that the attorneys directly retained Scott Snow [accountant] to translate the documents, Kovel does not apply.")

Case Date Jurisdiction State Cite Checked
2013-08-08 Federal OH B 4/14

Chapter: 10.9

Case Name: In re Behr Dayton Thermal Prods., LLC, Case No. 3:08-cv-326, 2013 U.S. Dist. LEXIS 81069, at *14 (S.D. Ohio June 10, 2013)
(holding that a litigant claiming work product protection had to specify the exact date on which it first anticipated litigation; rejecting defendant Aramark's claim that it anticipated litigation when plaintiff filed its complaint, because Aramark denied the allegations; "The privilege applies to factual investigations conducted by counsel at a corporate client's request (to provide legal advice to that client), and also to agents of an attorney who are assisting in rendering legal advice to the client.")

Case Date Jurisdiction State Cite Checked
2013-06-10 Federal OH B 4/14

Chapter: 10.9

Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK) (JCF), 2013 U.S. Dist. LEXIS 65335, at *5, *11-12 (S.D.N.Y. May 7, 2013)
(holding that the plaintiff could depose Kroll, described as "an investigative and risk management company that Chevron retained in connection with the various related litigations."; "Under some circumstances, communications to or from a lawyer's agent may be privileged just as if they were communications with the lawyer. . . . This is commonly the case where the agent acts as a 'translator,' analyzing and interpreting technical information in order to facilitate the attorney's provision of legal advice. . . . Some courts have construed Kovel [United States v. Kovel, 296 F.2d 918 (2d Cir. 1961)] broadly, applying it to factual investigations conducted by an attorney's agent. . . . Others have limited its application to circumstances where communications with the agent were necessary to improve the comprehension of the communications between attorney and client.")

Case Date Jurisdiction State Cite Checked
2013-05-07 Federal NY B 3/14

Chapter: 10.9

Case Name: Bryan Corp. v. Chemwerth, Inc., 296 F.R.D. 31, 35, 36 (D. Mass. 2013)
(quoting successful affidavits supporting plaintiff's lawyer's contention that it needed the assistance of plaintiff's long-time FDA consultant in providing legal advice to plaintiff; "Attorneys Flanagan and Johnson determined that in order to understand the dispute between Bryan and ChemWerth, and to provide legal advice to Bryan, they needed the assistance of someone who could understand and interpret Bryan's application to the FDA, the FDA's requirements and practices concerning new drug applications, DMFs [drug master files] and other data, and the impact that ChemWerth's alleged failure to provide documents had on Bryan's application to the FDA and the amount of money spent on the application. . . . They also determined that they would need someone to interpret all of the relevant communications involving ChemWerth, Bryan, Bryan's manufacturers, Bryan's testing laboratories, and the FDA."; "Waldman took on the task of translating and interpreting various communications involving Bryan, ChemWerth and the FDA, including communications in which Dr. Waldman [plaintiff's FDA consultant] had participated in his capacity as Bryan's agent on the TS project."; "Both MLA [plaintiff's outside law firm] and Bryan viewed Waldman's assistance as indispensable to MLA's ability to provide its client with legal advice regarding its dispute with ChemWerth and its potential communications with the FDA. . . . [B]oth MLA and Bryan understood that only MLA, Bryan and Waldman had access to those communications."; "Following ChemWerth's filing of a third-party complaint against Waldman on September 24, 2012, counsel for Bryan and Waldman agreed orally that their clients had a common interest in the case. . . . [A]lthough all of the documents which ChemWerth is seeking were created before Waldman retained its own counsel, Bryan took steps to preserve its claims of privilege over those documents in the event they were shared with Waldman's counsel.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal MA B 5/14

Chapter: 10.9

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 327 (M.D. Pa. 2013)
("'As a general matter, the privilege is not destroyed when a person other than the lawyer is present at a conversation between an attorney and his or her client if that person is needed to make the conference possible or to assist the attorney in providing legal services.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal PA B 5/14

Chapter: 10.9

Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 469 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "[T]here is no question that the attorney-client privilege extends not only to the lawyer giving advice but to any persons assisting the lawyer in providing legal services. It also extends to the client's in-house counsel and agents." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 3/14

Chapter: 10.9

Case Name: Columbia Data Prods., Inc. v. Autonomy Corp., Civ. A. No. 11 12077 NMG, 2012 U.S. Dist. LEXIS 175920, at *46-47 (D. Mass. Dec. 12, 2012)
(concluding that an audit prepared by PWC for plaintiff CDP did not deserve privilege or work product protection, although CDP's law firm Greenberg Traurig retained PWC; "[T]he plaintiff has not presented any supporting evidence or pointed to any facts showing that PWC played an interpretive role between Greenberg Traurig and CDP. The fact that PWC's auditing work may have aided CDP's counsel in its ability to advise the plaintiff does not shield the audit related materials from discovery under the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2012-12-12 Federal MA B 9/13

Chapter: 10.9

Case Name: Columbia Data Prods., Inc. v. Autonomy Corp., Civ. A. No. 11 12077 NMG, 2012 U.S. Dist. LEXIS 175920, at *44-45, *45-46 (D. Mass. Dec. 12, 2012)
(concluding that an audit prepared by PWC for plaintiff CDP did not deserve privilege or work product protection, although CDP's law firm Greenberg Traurig retained PWC; "The only evidence that CDP points to is the February 25, 2011 engagement letter from PWC to Greenberg Traurig. . . . While the letter indicates that PWC agreed to perform services intended to assist counsel with its provision of legal advice to CDP, neither the letter nor any other evidence set forth in the record suggests that PWC 'was necessary, or at least highly useful, in facilitating the legal advice' or that Greenberg Traurig was relying on PWC to translate or interpret information between the lawyers and CDP. . . . As described in the engagement letter, PWC specifically declined to provide legal advice or to assist with legal matters. . . . Rather, its stated role was limited 'to analyz[ing] and quantif[ing] software license fees payable to [CDP] by Iron Mountain[.] . . . Nothing in the materials submitted by either of the parties undermines that description. Therefore, PWC's function 'was not to put information gained from [plaintiff] into usable form for [its] attorneys to render legal advice, but rather, to collect information not obtainable directly from [plaintiff].'" (citation omitted); "The record further demonstrates that PWC 'acted to provide accounting advice rather than to assist [Greenberg Traurig] in providing legal advice.'. . . PWC's role was described repeatedly to Iron Mountain as that of an independent auditor whose sole purpose was to conduct a royalty audit pursuant to the parties' License Agreement. . . . There is no dispute that PWC fulfilled that role by conducting the royalty audit and delivering an audit report to CDP. . . . What is missing, however, is any evidence that PWC participated in, much less facilitated or translated, the lawyers' provision of legal advice to their client. Thus, PWC was not retained for the purpose of rendering legal advice.")

Case Date Jurisdiction State Cite Checked
2012-12-12 Federal MA B 9/13

Chapter: 10.9

Case Name: Columbia Data Products v. Autonomy Corp., Civ. A. No. 11-12077-NMG, 2012 U.S. Dist. LEXIS 175920 (D. Mass. Dec. 12, 2012)
February 13, 2013 (PRIVILEGE POINT)

"Another Court Takes a Narrow View of Privilege Protection for a Lawyer's Agent/Consultant"

Nearly every court finds that client agents/consultants usually stand outside the privilege protection, unless they are necessary for the transmission of privileged communications. In contrast, most courts have been more willing to extend privilege protection to a lawyer's agent/consultant assisting the lawyer in providing legal advice.

However, some courts recognize only a limited number of such lawyer agents/consultants who are within the privilege. In Columbia Data Products v. Autonomy Corp., Civ. A. No. 11-12077-NMG, 2012 U.S. Dist. LEXIS 175920 (D. Mass. Dec. 12, 2012), plaintiff's law firm Greenberg Traurig retained PriceWaterhouse Coopers ("PWC") to conduct an audit of royalty payments defendant owed Greenberg's client. Greenberg Traurig's retainer letter indicated that "PWC agreed to perform services intended to assist counsel with its provision of legal advice" to the client. Id. At *45. The court nevertheless rejected plaintiff's privilege claim for communications relating to the audit – concluding that "neither the [retainer] letter nor any other evidence set forth in the record suggested that PWC 'was necessary, or at least highly useful, in facilitating the legal advice' or that Greenberg Traurig was relying on PWC to translate or interpret information between the lawyers" and the client. Id. (citation omitted). The court later reiterated that the client had not "presented any supporting evidence or pointed to any facts showing that PWC played an interpretive role between Greenberg Traurig" and the client. Id. At *46.

Cases taking such a narrow approach to privilege protection for lawyer agents/consultants represent a very troubling view – both because they ignore explicit retainer letters in which lawyers hire agents/consultants, and because they require that the agents/consultants essentially "interpret" raw data that the lawyers would not otherwise understand.

Case Date Jurisdiction State Cite Checked
2012-12-12 Federal MA
Comment:

key case


Chapter: 10.9

Case Name: Krys v. Sugrue (In re Refco Sec. Litig.), 280 F.R.D. 102, 105(S.D.N.Y. 2011)
(in an opinion by Judge Rakoff, holding that a party's consultant did not meet the Kovel standard; "[T]here is no evidence suggesting Ginsberg [client's lawyer] relied on Knight [former hedge fund manager] to translate or interpret information given to him by his clients. At oral argument, Ginsberg represented to the Court that Knight 'understood an awful lot about Ms. Farquharson's [client] professional duties and operations,' and that he 'was extremely knowledgeable about Standard & Poor's' and 'a platform and an investment mechanism that I . . . Was not particularly familiar with. He also had a wealth of information from his 40 years or so in the field that I could only scratch the surface.'. . . From this and Ginsberg's Revised Declaration dated August 31, 2011 . . ., it appears Ginsberg relied on Knight's experience and specialized knowledge. What does not appear, however, is any evidence that there was information Ginsberg could not understand without Knight translating or interpreting the raw data for him. Accordingly, by sharing his client's information with a third party, Ginsberg waived attorney-client privilege for that information.")

Case Date Jurisdiction State Cite Checked
2011-01-01 Federal NY B 7/13

Chapter: 10.9

Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; pointing to E&Y's retainer letter language in concluding that E&Y was within privilege protection because it assisted Household's in-house counsel in giving legal advice; "'We understand that you will be utilizing the Work Product in order to provide legal advice to your client, Household, in your capacity as General Counsel. As such, all Work Product shall be deemed covered by the attorney-client privilege. Furthermore, it is our understanding that Household companies are currently involved in various types of litigation for which the Work Product may be used and anticipate such litigation in the future. As such, all Work Product shall be treated by E&Y as privileged under the attorney work product privilege.'"; "According to Defendants, Household's General Counsel needed E&Y's assistance in conducting the compliance study because it required expertise in sophisticated quantitative analyses and in identifying and addressing compliance issues, as well as a substantial commitment of personnel. In Defendants' view, 'it would not have been possible for Household personnel to have performed all of the tasks that E&Y performed.'"; also quoting Household's explanation of E&Y's role in a letter to State Attorney's General who was then pursuing an action against Household: "'The Ernst & Young engagement is designed to monitor the company's compliance with certain company policies and state regulation. In addition, Ernst & Young shall (1) identify the root causes of noncompliance; and (ii) recommend process improvements to enhance controls over compliance.'"; concluding as follows: "It is clear from the Compliance Engagement letter that E&Y was acting as an agent of Household's General Counsel's office. . . . Both Household and E&Y understood that the engagement was to assist in-house counsel in providing legal advice regarding pending or anticipated litigation."; "The mere fact that it took Household's counsel and E&Y a couple of weeks to finalize a retention agreement does not demonstrate that the retention letter is a sham. Nor is the court persuaded that the arrangement was false based on a single internal email stating generically that 'HI' retained E&Y."; "Plaintiffs argue that E&Y's assistance was not necessary for Household's in-house lawyers to understand the Company's business practices or to calculate refunds. . . . The court is satisfied, however, that Defendants have demonstrated the necessity of E&Y's services in this case. Household retained E&Y to conduct complex quantitative analyses and extensive information-gathering that was beyond Household counsel's resources and abilities, but was uniquely within E&Y's qualifications."; "Plaintiffs also object that Household offered to make the E&Y compliance audit available to the Multistate Working Group for their review, and that Household cannot now claim that it intended to keep the documents confidential. . . . This is not entirely accurate. The Settlement Agreement with the Attorneys General provided that Household would retain an 'independent monitor' whose future reports generated in connection with the Settlement Audit would be provided to the Attorneys General upon request. . . . There is nothing to indicate that Household was willing to, or did in fact provide the Working Group with the audit results of the Compliance Engagement. Indeed, Defendants confirm that Household never shared