Showing 192 of 192 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 Jurisidction State Cite Checked
2014-06-27 Federal

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 Jurisidction State Cite Checked
2017-01-19 Federal NY

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2010-04-13 Federal OH

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2011-10-28 Federal NY B 10/12

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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2017-02-03 Federal MA

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2011-01-01 Federal NY B 7/13

Chapter: 10.9

Case Name: Schwarz v. Commonwealth, 611 S.E.2d 631, 654 (Va. Ct. App. 2005)
("It is clear that, in providing in Code § 19.2-169.5(D) that the evaluation results, although not communications by the client to counsel's agent, are to be protected under the attorney-client privilege, the legislature recognizes that the services of the mental health experts appointed pursuant to Code § 19.2-169.5(A) are indispensable to defense counsel's effective representation of the client.")

Case Date Jurisidction State Cite Checked
2005-01-01 State VA

Chapter: 10.9

Case Name: Via v. Commonwealth, 590 S.E.2d 583, 595 (Va. Ct. App. 2004)
("'The privilege attaches to communications of the client made to the attorney's agents . . . when such agent's services are indispensable to the attorney's effective representation of the client.' Id. [Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (1988)]")

Case Date Jurisidction State Cite Checked
2004-01-01 State VA

Chapter: 10.9

Case Name: Via v. Commonwealth, 590 S.E.2d 583, 595 (Va. Ct. App. 2004)
("Via asserts that he hired Dr. Conley 'as a part of [his] preparation of the defense of these charges' 'to assist in evaluating the complainant, suggest defense theories and method of presentations of those theories at trial.' Thus, Via contends Dr. Conley's records were protected by the attorney/client privilege and constituted attorney work product. Via further contends that the Commonwealth's request for the documents equated to an 'effort to circumvent Rule 3A:11.'")

Case Date Jurisidction State Cite Checked
2004-01-01 State VA

Chapter: 10.9

Case Name: Via v. Commonwealth, 590 S.E.2d 583, 595 (Va. Ct. App. 2004)
("Via proffered no evidence for the record in any effort to establish the 'indispensability' of Dr. Conley's services. Thus, there was simply no reason for the trial court to have declared Dr. Conley an 'agent' of Via's counsel.")

Case Date Jurisidction State Cite Checked
2004-01-01 State VA B 3/16
Comment:

key case


Chapter: 10.9

Case Name: Black Decker Corp. v. United States, 219 F.R.D. 87, 89, 90, 90-91 (D. Md. 2003)
("During discovery, defendant sought documents related to the transaction from both plaintiff and Deloitte & Touche ('D&T'), the accounting firm retained by plaintiff for advice concerning the transaction."; "Beginning with United States v. Kovel, 296 F.2d 918 (2d Cir. 1961), several courts have recognized that the attorney-client privilege may protect exchanges between the client and an accountant when the accountant enables communication with the attorney by 'translating' complex accounting concepts."; "Several factors are relevant to determining the applicability of this derivative privilege: 1) to whom was the advice provided counsel or the client; 2) where client's in-house counsel is involved, whether counsel also acts as a corporate officer; 3) whether the accountant is regularly employed as the client's auditor or advisor; and 4) which parties initiated or received the communications. . . . An application of those factors to this case do not compel the clear conclusion that D&T was needed to facilitate communications between plaintiff and their attorneys. First, the communications here involved discussions among plaintiff, D&T, in-house attorneys at both, and individuals at B&D who do not appear to be attorneys. While the final opinion letters were directed to plaintiff's general counsel, Charles Fenton, the bulk of the exchanges with D&T did not involve him. Second, the primary counsel involved in the advice process, Harry Pogash, is also a corporate officer (VP of taxes). Third, a factor militating in favor of plaintiff on its privilege claim, D&T was not regularly employed by plaintiff. Finally, as to which parties initiated or received the communications, many of the communications were directed by the accountants to various individuals at B&D which could undercut the notion that B&D's in-house counsel was relying on the accountant to understand what the client was saying. In addition to analyzing these factors and considering all of the case law cited by the parties, I have reviewed the documents at issue. In my opinion, the documents reveal that D&T was not providing 'translation' services for in-house counsel. Rather, D&T was providing hybrid advice to plaintiff tax and business advice which by its nature, had a legal component. Given the complexity of the transactions at issue, it is understandable why plaintiff wanted to, and did, retain the services of D&T to help evaluate the tax and business implications of the transaction. The record does not support the conclusion that D&T's advice or the documents at issue were provided primarily to assist the plaintiff's attorneys in rendering legal advice. Therefore, the derivative privilege protection recognized by Kovel and subsequent cases is not applicable to the documents at issue.")

Case Date Jurisidction State Cite Checked
2003-01-01 Federal MD B 8/13

Chapter: 10.9

Case Name: S.W. Heischman, Inc. v. Reliance Ins. Co., 30 Va. Cir. 235, 242 (Va. Cir. Ct. 1993)
("The privilege attaches to communications of the client made to the attorney's agents, when such agent's services are indispensable to the effective representation of the client. Commonwealth v. Edwards, 235 Va. 499, 508, 370 S.E.2d 296 (1988).")

Case Date Jurisidction State Cite Checked
1993-01-01 State VA B 12/09

Chapter: 10.9

Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1305 n.13 (E.D. Va. 1992)
(enjoining a former in-house lawyer and his lawyer from disclosing privileged documents in-house lawyer retained when he was terminated for allegedly complaining about corporate misconduct; refusing to order the former in-house lawyer to return the documents to the company; "'[T]he privilege attaches to an attorney's agents when such agents' services are indispensable to the attorney's effective representation of the client.'")

Case Date Jurisidction State Cite Checked
1992-01-01 Federal VA B 8/15

Chapter: 10.9

Case Name: Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 301 (Va. 1988)
("[t]he privilege attaches to communications of the client made to the attorney's agents, including accountants, when such agent's services are indispensable to the attorney's effective representation of the client")

Case Date Jurisidction State Cite Checked
1988-01-01 State VA B 3/16
Comment:

key case


Chapter: 10.10

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 Jurisidction State Cite Checked
2015-05-28 Federal NY
Comment:

key case


Chapter: 10.10

Case Name: In re Grand Jury Subpoena Dated March 20, 2013, 13-Mc189 (Part I) 2014 U.S. Dis. LEXIS 91901, *23-24 (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 facts establish that Investigator was an agent of Lawyer and a subagent of John Doe. Lawyer testified that he not John Doe agreed with Investigator that she should act on Lawyer's behalf and subject to Lawyer's control. . . . The Court also finds that Investigator acted subject to Lawyer's primary control.")

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

Chapter: 10.11

Case Name: In re Experian Data Breach Litig., SACV 15-01592 AG (DFMx), Slip Op. at 2, 3, 4, 4-5 (C.D. Cal. May 18, 2017)
(finding that the work product doctrine protected materials created by a forensic consultant hired by Jones Day to investigate Experian's data breach, making it unnecessary to analyze possible privilege protection; holding that (1) the work product doctrine protected the documents; (2) plaintiffs could not overcome the work product protection; and (3) Experian did not waive the work product protection by disclosing the forensic consultant's report internally and to fellow common interest participant T-Mobile (Experian's client); explaining that "in this circuit, a 'because-of' test is used to determine whether a document was prepared in anticipation of litigation, which means that a document doesn't need to be prepared exclusively for use in litigation."; in supporting its conclusion (1), explaining as follows: "Some background is helpful for this analysis. In September 2015, Experian learned that one of its systems was breached by an unauthorized third party. Experian immediately retained Jones Day, its outside litigation counsel, for legal advice regarding the attack. Jones Day then hired Mandiant to conduct an expert report analysis of the attack. And according to Experian, the only purpose of that report is to help Jones Day provide legal advice to Experian regarding the attack."; "On October 1, 2015, Experian announced its data breach. One day later, the first complaint was filed alleging claims related to the data breach. That complaint was then consolidated with over forty other consumer complaints, which created the pending litigation. Mandiant finished its report by the end of October 2015 and gave it to Jones Day. Then Jones Day gave the report to Experian's in-house counsel. The report has several components and includes an individual sub-report for each server image that Mandian investigated. Jones Day and Experian's in-house counsel have used and continue to use the report to develop their legal strategy."; acknowledging that "Experian . . . had duties under the law to investigate data breaches and under its contract [with] T-Mobile, Experian had the duty to remedy, investigate, and remediate any data breach. But the record before the Court makes it clear that Mandiant conducted the investigation and prepared its report for Jones Day in anticipation of litigation, even if that wasn't Mandiant's only purpose."; "Mandiant was hired by Jones Day to assist Jones Day in providing legal advice in anticipation of litigation. This is supported by declarations as well as the fact that Mandiant's full report wasn't given to Experian's Incident Response Team. If the report was more relevant to Experian's internal investigation or remediation efforts, as opposed to being relevant to defense of this litigation, then the full report would have been given to that team. The evidence here establish that Jones Day instructed Mandiant to do the investigation and, but for the anticipated litigation, the report wouldn't have been prepared in substantially the same form or with the same content."; acknowledging that Mandiant had worked previously for Experian, but finding that such earlier work did not destroy work product protection for its post-data breach work; "Plaintiffs argue that since Mandiant had previously worked for Experian, that's proof that Mandiant was just again doing work in the course of ordinary business for Experian when it created the report. But that argument isn't convincing in part because Mandiant's previous work for Experian was separate from the work it did for Experian regarding this particular data breach. . . . [T]he Court is not concluding that Mandiant's 2013 report is privileged. The Court also is not concluding that any work done by Experian or Mandiant regarding the breach before Jones Day was hired is privileged." (emphases added))

Case Date Jurisidction State Cite Checked
2017-05-18 Federal CA
Comment:

key case


Chapter: 10.11

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 Jurisidction State Cite Checked
2017-02-03 Federal MA

Chapter: 10.11

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 Jurisidction State Cite Checked
2017-02-03 Federal MA

Chapter: 10.11

Case Name: Simon v. Northwestern University, Case No. 1:15-CV-1433, 2017 U.S. Dist. LEXIS 2461 (N.D. Ill. Jan. 6, 2017)
("In Illinois, confidential communications made by a client to his attorney are privileged, as are communications made to investigators employed by the attorney.")

Case Date Jurisidction State Cite Checked
2017-01-06 Federal IL

Chapter: 10.11

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 Jurisidction State Cite Checked
2016-11-18 Federal NY

Chapter: 10.11

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 Jurisidction State Cite Checked
2016-11-18 Federal NY

Chapter: 10.11

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 Jurisidction State Cite Checked
2016-09-08 Federal AZ

Chapter: 10.11

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 Jurisidction State Cite Checked
2016-09-08 Federal AZ

Chapter: 10.11

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 Jurisidction State Cite Checked
2016-09-08 Federal AZ

Chapter: 10.11

Case Name: Johnson v. Zurich Am. Ins. Co., Case No. 14-cv-1095-MJR-SCW, 2016 U.S. Dist. LEXIS 10754m at *3-4 (S.D. Ill. Jan. 28, 2016)
("The dispositive question was whether the broker, Hylant[, was] an agent of Triple Crown [defendant] -- and specifically Triple Crown's counsel -- for the purpose of providing legal advice. The Court agreed with Plaintiff's counsel that policies in question were ultimately purchased by Triple Crown drivers, who were the insured. Thus there could be no argument that the privilege attached due to an insured/insurer arrangement. Nevertheless the Court concluded that Hylant was Triple Crown's agent, and agent for Triple Crown's counsel Burns. . . . The Court determined that Hylant was acting at the behest of Triple Crown for the purpose of providing advice on the conversion from a worker's compensation to an occ/acc model. As Triple Crown's broker[,] Hylant provided advice to Triple Crown but ultimate decision making was in the hands of Triple Crown. Additionally, while not dispositive of the issue, evidence that Hylant was paid a retainer as an agent for Triple Crown, supports the conclusion that there was an agency relationship.")

Case Date Jurisidction State Cite Checked
2016-01-28 Federal IL B 7/16

Chapter: 10.11

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 Jurisidction State Cite Checked
2016-01-11 Federal NY
Comment:

key case


Chapter: 10.11

Case Name: United States v. Christensen, No. 08-50531, No. 08-50570, No. 09-50115, No. 09-50125, No. 09-50128, No. 09-50159, No. 10-50434, No. 10-50462, No. 10-50464, No. 10-50472, 2015 U.S. App. LEXIS 14961 (9th Cir. Aug. 25, 2015)
("[A] communication from the attorney to a third party acting as his agent 'for the purpose of advising and defending his clients' also may be protected if it reveals confidential client communications.")

Case Date Jurisidction State Cite Checked
2015-08-25 Federal

Chapter: 10.11

Case Name: United States v. Christensen, No. 08-50531, No. 08-50570, No. 09-50115, No. 09-50125, No. 09-50128, No. 09-50159, No. 10-50434, No. 10-50462, No. 10-50464, No. 10-50472, 2015 U.S. App. LEXIS 14961 (9th Cir. Aug. 25, 2015)
("The government does not dispute that communications between a lawyer and a private investigator retained by that lawyer to assist the lawyer's representation of a client may be covered by the privilege.")

Case Date Jurisidction State Cite Checked
2015-08-25 Federal

Chapter: 10.11

Case Name: Grand Canyon Skywalk Development LLC v. Cieslak, Case Nos.: 2:15-cv-01189-JAD-HWF2:13-cv-00596-JAD-GWF, 2015 U.S. Dist. LEXIS 107457 (D. Nev. Aug. 13, 2015)
(analyzing many opinions dealing with the role of public relations consultants in privilege and work product analyses; ultimately concluding that a public relations consultant was the "functional equivalent" of an employee, and therefore was within privilege protection; "Courts are divided on whether the attorney-client privilege extends to communications between a client's counsel and a public relations consultant that the client or its counsel hires to assist in ongoing or anticipated legal matters or disputes. In support of its position, Gallagher & Kennedy relies on In re Grand Jury Subpoenas Dated March 24, 2003 ('In re Grand Jury Subpoenas'), 265 F.Supp.2d 321 (S.D.N.Y. 2003); F.T.C. v. Glaxosmithkline, 294 F.3d 141, 352 U.S. App. D.C. 343 (D.C.Cir. 2002); and In re Copper Market Antitrust Litigation, 200 F.R.D. 213 (S.D.N.Y. 2001). In opposing the application of the privilege, Plaintiffs rely on Scott v. Chipotle Mexican Grill Inc., 2015 U.S. Dist. LEXIS 40176, 2015 WL 1424009, *3 (S.D.N.Y. 2015); Egiazaryan v. Zalmayev, 290 F.R.D. 421, 431 (S.D.N.Y. 2013); Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 54-55 (S.D.N.Y. 2000); Fine v. ESPN, Inc., 2015 U.S. Dist. LEXIS 68704, 2015 WL 3447690, *11 (N.D.N.Y. 2015); and McNamee v. Clemens, 2013 U.S. Dist. LEXIS 179736, 2013 WL 6572899, *1, 6 (E.D.N.Y. 2013). The decisions cited by the parties chiefly emanate from federal district courts in New York. The Court has found two decisions from federal districts in other circuits that also address this issue. See Hadjih v. Evenflo Company, Inc., 2012 U.S. Dist. LEXIS 76100, 2012 WL 1957302 (D.Colo. 2012); and Schaeffer v. Gregory Village Partners, L.P., 2015 U.S. Dist. LEXIS 3966, 2015 WL 349039 (N.D.Cal. 2015)."; "The cases that support application of the attorney-client privilege to communications with public relations consultants retained by the party or its counsel do so on two grounds that are not necessarily mutually exclusive. Some courts find that in high profile cases a public relations strategy is an important element in the preparation or presentation of a party's claim or defense. These courts are therefore willing to extend the protection of the attorney-client privilege to a party's and its counsel's communications with a public relations consultant which are directed at supporting the client's legal position in the case or dispute."; "Other courts have upheld the assertion of the attorney-client privilege to communications with a public relations consultant on the grounds that the consultant is the functional equivalent of the client's employee."; "Nevada has adopted the Upjohn test for applying the attorney-client privilege to confidential communications with corporate employees. The functional equivalent test extends Upjohn to agents where the circumstances indicate that they should be treated the same as employees. This Court predicts the Nevada Supreme Court will apply the functional equivalent test in appropriate circumstances."; "An attorney for a corporation or governmental entity should be able to provide confidential legal advice to employees or agents in performing their duties on behalf of the corporation or governmental entity. In the case of a public relations consultant who is hired to conduct a media relations campaign on behalf of the client with respect to a lawsuit or legal dispute, it is important that the client's counsel be able to provide confidential legal advice to the consultant so that he can perform his duties on behalf of the client in accordance with that legal advice."; inexplicably pointing to the fact that the public relations consultant did not provide general advice to the company, but rather provided advice only about a specific issue; "There is no evidence that Scutari & Cieslak undertook to provide general public relations services to the Tribe beyond the legal dispute with the Plaintiffs. Under these circumstances, the confidential legal advice that Gallagher & Kennedy provided to Scutari & Cieslak with respect to the legal dispute is within the scope of the attorney-client privilege and is protected from disclosure unless the privilege has otherwise been waived by the Tribe.")

Case Date Jurisidction State Cite Checked
2015-08-13 Federal NV
Comment:

key case


Chapter: 10.11

Case Name: Grand Canyon Skywalk Development LLC v. Cieslak, Case Nos. 2:15-cv-01189- & 2:13-cv-00596-JAD-GWF, 2015 U.S. Dist. LEXIS 107457, at *22 (D. Nev. Aug. 13, 2015)
October 14, 2015 (PRIVILEGE POINT)

"Court Analyzes Possible Privilege Protection for Communications with Public Relations Consultants"

Corporations and their lawyers frequently work with public relations consultants when facing ongoing or anticipated litigation. In the work product context, courts agree that disclosing preexisting work product to such consultants does not waive that robust protection, but disagree about whether the consultants can themselves create protected work product.

The analysis in the attorney-client privilege context involves even more judicial disagreements. In Grand Canyon Skywalk Development LLC v. Cieslak, the District of Nevada extensively dealt with this issue, starting with an understatement: "Courts are divided on whether the attorney-client privilege extends to communications between a client's counsel and the public relations consultant that the client or its counsel hires to assist in ongoing or anticipated legal matters or disputes." Case Nos. 2:15-cv-01189- & 2:13-cv-00596-JAD-GWF, 2015 U.S. Dist. LEXIS 107457, at *22 (D. Nev. Aug. 13, 2015). The court catalogued many cases dealing with this issue — noting that some decisions protect such communications either (1) because the lawyers needed the consultants' assistance in providing legal advice, or (2) because "the consultant is the functional equivalent of the client's employee." Id. At *27. The court ultimately extended privilege protection using the second approach. Ironically, the court described as a helpful fact that "[t]here is no evidence that [the public relations consultant] undertook to provide general public relations services to the [defendant] beyond the legal dispute with the Plaintiffs." Id. At *40. That fact actually cuts against the "functional equivalent" standard.

Most courts consider public relations consultants outside privilege protection. The good news is that corporations most frequently call upon such consultants during or in anticipation of litigation, making the work product doctrine protection available in many cases.

Case Date Jurisidction State Cite Checked
2015-08-13 Federal NV
Comment:

key case


Chapter: 10.11

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. 14016 (D.C. App. Aug. 11, 2015)
(issuing a writ of mandamus and reversing the trial court's holding that KBR waived protections by disclosing documents while preparing its Rule 30(b)(6) deponent, and by inferring in a pleading footnote that its investigation did not uncover any wrongdoing; "Some of the COBC [KBR Code of Business Conduct documents] documents in this case involve communications from an investigator, acting at the direction of in-house counsel, to an attorney who is in-house counsel. In such a circumstance, the investigator effectively steps into the shoes of the attorney.")

Case Date Jurisidction State Cite Checked
2015-08-11 Federal DC

Chapter: 10.11

Case Name: Beachfront North Condominium Assoc., Inc. v. Lexington Ins. Co., Civ. No. 14-6706 (RBK/JS), 2015 U.S. Dist. LEXIS 102917 (D.N.J. Aug. 5, 2015)
("A question has arisen as to whether counsel's communications with Weidlinger and Tremaine [Consultants hired by the plaintiff to prepare a claim to the defendant insurance company] may be protected by the attorney-client privilege. The answer is yes, but not necessarily so. . . . Thus, communications between and amongst BNCA's counsel and their agents Weidlinger and Tremaine for the purpose of securing legal advice are privileged. As a corollary, however, communications primarily for a non-legal purpose, e.g., to prepare the claim to be submitted to Lexington, are not privileged. . . . The key issue regarding the applicability of the attorney-client privilege is the purpose of the work of BNCA's [Condominium association] attorneys. If the purpose was to provide legal advice or to prepare for litigation, the privilege applies. If the purpose was to prepare an insurance claim to present to Lexington, the privilege does not apply.")

Case Date Jurisidction State Cite Checked
2015-08-05 Federal NJ

Chapter: 10.11

Case Name: United States ex rel. Landis v. Tailwind Sports Corp., Case No. 1:10-cv-00976 (CRC) (D.D.C. July 13, 2015)
(concluding that Lance Armstrong's agent/consultant was inside privilege protection; "Landis also asserts that W&C's communications with the CSE Defendants are not covered by attorney-client privilege because they were not themselves W&C clients. Armstrong counters that the communications are nonetheless protected because CSE and its principals, William Stapleton and Barton Knaggs, were communicating with W&C as Armstrong's agents. Under the intermediary doctrine, 'attorney-client privilege . . . Covers communications between an attorney and a client made through an agent' when the agent acts 'merely as an intermediary.'. . . To determine whether an agent acts as an intermediary, courts focus on whether the communications were made 'in confidence for the purpose of obtaining legal advice from the lawyer.'. . . Stapleton and Knaggs represent that they have served as Armstrong's business agents since 1995 and 2001, respectively. . . . Armstrong maintains that he 'relied on Stapleton to communicate with [his] lawyers and convey to [him] necessary information relating to his legal interests' and that 'Knaggs and CSE have frequently assisted [his] attorneys by providing information relevant to Armstrong's legal representation.'. . . Landis primarily responds that Stapleton and Knaggs acted as agents of Tailwind, the owner of USPS cycling team, during the relevant time period. . . . But even if that is so, Stapleton and Knaggs could have served as agents of both Tailwind and Armstrong. The representations of Armstrong, Stapleton, and Knaggs facially satisfy the intermediary doctrine. And because Landis offers no evidence that would contradict them, he has not overcome W&C's assertion of privilege with respect to its communications with the CSE Defendants.").

Case Date Jurisidction State Cite Checked
2015-07-13 Federal DC

Chapter: 10.11

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 Jurisidction State Cite Checked
2015-05-13 Federal OR
Comment:

key case


Chapter: 10.11

Case Name: Malbco Holdings, LLC v. Patel, 6:14-cv-00947-PK, 2015 U.S. Dist. LEXIS 62501 (D. Ore. May 13, 2015)
("The resolution of this argument turns on a determination of whether Linton [Accountant] was assisting Kinkade [Defendants' lawyer] in the rendition of his legal services or whether Kinkade was enlisted to advise Linton in her work preparing gift tax returns. In the latter case, Linton is not a client and she was not assisting Kinkade in rendition of his legal services. Given the evidence and arguments provided by Malbco and Malbco's request in the alternative to review these communications in camera . . . .")

Case Date Jurisidction State Cite Checked
2015-05-13 Federal OR

Chapter: 10.11

Case Name: Perino v. Edible Arrangements International, Inc., Civ. No. 3:13CV1411 (JBA), 2015 U.S. Dist. LEXIS 39131, at *23 (D. Conn. Mar. 27, 2015)
May 20, 2015 (PRIVILEGE POINT)

“Accountants Can be Either Inside or Outside Privilege Protection”

Lawyers and accountants have always had an uneasy relationship, and that tension extends to the attorney-client privilege context. Accountants can either be inside or outside privilege protection.

In Perino v. Edible Arrangements International, Inc., the court held that a lawyer had properly "engaged an outside forensic accounting firm to assist with the investigation" of plaintiff's activities — meaning that related communications deserved privilege protection. Civ. No. 3:13CV1411 (JBA), 2015 U.S. Dist. LEXIS 39131, at *23 (D. Conn. Mar. 27, 2015). However, ten days earlier, another court addressed the implications of a trade association disclosing privileged communications to its accountant. Kan. Tag-Along Action Only Associated Wholesale Grocers, Inc. v. United Potato Growers of Am., Inc. (In re Fresh & Process Potatoes Antitrust Litig.), Case Nos. 4:10-md-2186-BLW-CWD & 4:13:cv-00251-BLW, 2015 U.S. Dist. LEXIS 33577 (D. Idaho Mar. 17, 2015). That court bluntly stated that the privileged "information was freely shared with [the association's] accountants, and therefore the privilege was waived because it was shared with third parties." Id. at *33.

Accountants normally fall outside privilege protection, unless they legitimately assist lawyers in providing legal advice. On the other hand, disclosing work product to an accountant normally does not waive that more robust protection. Ironically, even an accountant who is outside privilege protection normally can create protected work product — as a client "representative."

Case Date Jurisidction State Cite Checked
2015-03-27 Federal CT
Comment:

key case


Chapter: 10.11

Case Name: Kan. Tag-Along Action Only Associated Wholesale Grocers, Inc. v. United Potato Growers of Am., Inc. (In re Fresh & Process Potatoes Antitrust Litig.), ...
... Case Nos. 4:10-md-2186-BLW-CWD & 4:13:cv-00251-BLW, 2015 U.S. Dist. LEXIS 33577 (D. Idaho Mar. 17, 2015)

May 20, 2015 (PRIVILEGE POINT)

“Accountants Can be Either Inside or Outside Privilege Protection”

Lawyers and accountants have always had an uneasy relationship, and that tension extends to the attorney-client privilege context. Accountants can either be inside or outside privilege protection.

In Perino v. Edible Arrangements International, Inc., the court held that a lawyer had properly "engaged an outside forensic accounting firm to assist with the investigation" of plaintiff's activities — meaning that related communications deserved privilege protection. Civ. No. 3:13CV1411 (JBA), 2015 U.S. Dist. LEXIS 39131, at *23 (D. Conn. Mar. 27, 2015). However, ten days earlier, another court addressed the implications of a trade association disclosing privileged communications to its accountant. Kan. Tag-Along Action Only Associated Wholesale Grocers, Inc. v. United Potato Growers of Am., Inc. (In re Fresh & Process Potatoes Antitrust Litig.), Case Nos. 4:10-md-2186-BLW-CWD & 4:13:cv-00251-BLW, 2015 U.S. Dist. LEXIS 33577 (D. Idaho Mar. 17, 2015). That court bluntly stated that the privileged "information was freely shared with [the association's] accountants, and therefore the privilege was waived because it was shared with third parties." Id. at *33.

Accountants normally fall outside privilege protection, unless they legitimately assist lawyers in providing legal advice. On the other hand, disclosing work product to an accountant normally does not waive that more robust protection. Ironically, even an accountant who is outside privilege protection normally can create protected work product — as a client "representative."

Case Date Jurisidction State Cite Checked
2015-03-17 Federal ID
Comment:

key case


Chapter: 10.11

Case Name: DeAngelis v. Corzine; In re MF Global Holdings Ltd. Investment Litig., 11 Civ. 7866 (VM) (JCF), 12 MD 2338, 2015 U.S. Dist. LEXIS 18207 (S.D.N.Y. Feb. 9, 2015)
(in an opinion by Judge Francis, analyzing defendants' efforts to obtain background documents prepared by bankruptcy trustee's consultant E&Y's investigation into the trustee's causes of action against the defendants; "'The Individual Defendants appear to concede the Ernst & Young was functioning as an agent of the attorneys.'")

Case Date Jurisidction State Cite Checked
2015-02-09 Federal NY

Chapter: 10.11

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 Jurisidction State Cite Checked
2015-01-23 Federal MI

Chapter: 10.11

Case Name: The Little Hocking Water Assoc., Inc. v. E.I. DuPont De Nemours and Co., Case No. 2:09-cv-1081, 2014 U.S. Dist. LEXIS 159313 (S.D. Ohio Nov. 12, 2014)
("Plaintiff argues that the Magistrate Judge's findings were clearly erroneous and contrary to law because the record, including two declarations and a detailed privilege log, sets forth the communication in which the litigation consultants were involved. . . . Defendant argues, however, that because there is no way to distinguish the litigation consultants, and not all consultants were retained to assist counsel in providing legal advice and formulating legal strategy, attorney-client privilege does not apply. The Court agrees. The Magistrate Judge did not take issue with Plaintiff's failure to identify the litigation consultants, but the failure to distinguish which consultants were actually opining on litigation strategy and therefore engaging in protected communication. Therefore, the Court finds that the Magistrate Judge's Opinion and Order is neither clearly erroneous nor contrary to law with respect to the challenged portion regarding the litigation consultants.")

Case Date Jurisidction State Cite Checked
2014-11-12 Federal OH

Chapter: 10.11

Case Name: In re Grand Jury Subpoena Dated March 20, 2013, 13-Mc189 (Part I) 2014 U.S. Dis. LEXIS 91901, *23-24 (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 facts establish that Investigator was an agent of Lawyer and a subagent of John Doe. Lawyer testified that he not John Doe agreed with Investigator that she should act on Lawyer's behalf and subject to Lawyer's control. . . . The Court also finds that Investigator acted subject to Lawyer's primary control.")

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

Chapter: 10.11

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 Jurisidction State Cite Checked
2014-06-27 Federal DC

Chapter: 10.11

Case Name: Federal Housing Finance Agency v. HSBC North America Holdings Inc., 11 Civ. 6189 (DLC),11 Civ. 6190 (DLC),11 Civ. 6193 (DLC),11 Civ. 6198 (DLC),11 Civ. 6200 (DLC),11 Civ. 6201 (DLC),11 Civ. 7010 (DLC), 2014 U.S. Dist. LEXIS 46519 (S.D.N.Y. April 3, 2014)
("Attorney-client privilege may encompass those who assist a lawyer in representing a client.")

Case Date Jurisidction State Cite Checked
2014-04-03 Federal NY

Chapter: 10.11

Case Name: Genesco, Inc. v. Visa U.S.A., Inc., 296 F.R.D. 559, 571 (M.D. Tenn. 2014)
(holding that the attorney-client privilege and the work product doctrine protected communications relating to a forensic expert's investigation into a cyberattack in Genesco's computer network; "Earlier, on December 3, 2010, Roger Sisson, Genesco's general counsel, engaged the Stroz Friedberg firm ('Stroz') to provide consulting and technical services to assist Sisson and Genesco's outside counsel [Kilpatrick Townsend & Stockton] in rendering legal advice to Genesco about the Intrusion and Trustwave's report.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal TN B 6/14

Chapter: 10.11

Case Name: Genesco, Inc. v. Visa U.S.A., Inc., 296 F.R.D. 559, 581, 582, 582 n.5, 584, 584-85 (M.D. Tenn. 2014)
(holding that the attorney-client privilege and the work product doctrine protected communications relating to a forensic expert's investigation into a cyberattack in Genesco's computer network; also concluding a non-testifying expert's disclosure did not waive the expert's protection; "Genesco next asserts the attorney client and work product privileges to bar Visa's discovery requests for Sisson's [Genesco's General Counsel] deposition and his records and communications during his investigation of the cyberattack and Visa's assessments and fines. Attorneys' factual investigations 'fall comfortably within the protection of the attorney-client privilege.'. . . This privilege extends to the Stroz firm [outside consultant who assisted inside counsel and outside counsel Kilpatrick Townsend & Stockton in investigating a cyberattack on Genesco's computer system] that assisted counsel in his investigation."; "For most actions, this Court requires a privilege log, but a study of the history of law reflects that most rules eventually give rise to exceptions where the facts warrant. Moreover, Rule 26(b)(4)(D) does not require a privilege log, only information that 'describes the nature of the documents, communications, or tangible things not produced or disclosed -- and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.' Rule 26(b)(5)(A)(ii) also does not require a privilege log."; "'Moreover, to disclose the details for a privilege log of documents exchanged between Sisson and Stroz would infringe upon Genesco's counsel and his consultant's mental processes that are entitled to absolute protection in this Circuit. . . . Thus, to require a privilege log for the assertion of these privileges for Genesco's counsel and his agent, the Stroz firm, would itself violate the work product privilege.'"; "These privileges arise from the relationship between Genesco and the Stroz firm for which Genesco's affidavits are appropriate and sufficient to enable the Court to decide whether the privilege attaches."; "This Court and other courts require a privilege log for most cases, but here given the international scope of this controversy and the circumstances of the retention of a consultant computer expert to assist Genesco's counsel in a complex computer investigation, this action fits squarely within Upjohn [Upjohn Co. v. United States, 449 U.S. 383 (1981)]. Given that this controversy involves Genesco's retail establishments through the world, the individual listing of each document to Genesco's counsel for determining privilege seems impracticable and unnecessary to decide this privilege issue in light of Upjohn. The Court, however, will require a privilege log for any document that was prepared by a Genesco employee, but was not addressed directly to Genesco's counsel as such factual circumstances fall outside of Upjohn. Genesco also cannot withhold documents prepared in its ordinary business, as reflected by the Court's ruling that remedial measures that Genesco took in response to Trustwave's report must be produced because the Trustwave [outside forensic investigator of cyber attack] report reflects that those measures were undertaken in the ordinary course of business, not for Genesco's counsel."; "Based upon Precision of New Hampton [Precision of New Hampton. Inc. v. Tri Component Prods. Corp., No. C12-2020, 2013 U.S. Dist. LEXIS 79847 (N.D. Iowa June 5, 2013)], the Court concludes that there is not any waiver of the attorney client privilege. Assuming a waiver based upon disclosure of the Stroz report, the limitation on the nontestifying expert consultant would still bar the Stroz discovery,as that protection arises under Rule 26(b)(4)(D) that serves different purposes and does not permit of waiver. Precision of New Hampton. Inc., 2013 U.S. Dist. LEXIS 79847, 2013 WL 2444047, at *3 ('where a party enjoys protection under Rule 26(b)(4)(D), the protection is not subject to waiver.').")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal TN B 6/14

Chapter: 10.11

Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *19 (N.D. Ohio Aug. 8, 2013)
(holding that the attorney-client privilege protected communications to a lawyer from the client's accountant, thus implicitly holding that the accountant was a protected client agent -- but describing the relationship in a paragraph that does not seem to support the holding; "The Court finds the documents where Scott Snow [Accountant] provided information to the attorneys to be subject to attorney-client privilege. In these instances, Scott Snow was acting directly as agent to Debtor and Karen Myers and communicating to their attorneys when Debtor and Karen Myers could have communicated to their attorneys themselves.")

Case Date Jurisidction State Cite Checked
2013-08-08 Federal OH

Chapter: 10.11

Case Name: Chevron Corp. v Donziger, No. 11 Civ. 0691 (LAK) (JCF), 2013 U.S. Dist. LEXIS 65335, at *12 (S.D.N.Y. May 7, 2013)
July 24, 2013 (PRIVILEGE POINT)

"Federal and State Courts Analyze the Privilege Impact of Third Parties: Lawyer Agents"

Last week's Privilege Point described the risk of involving client agents in privileged communications. The same danger arises when lawyers rely on agents and consultants.

As with client agents, some courts take a broad view. In Bank of New York Mellon, Index No. 651786/11, N.Y. Slip Op. 30996U (N.Y. Sup. Ct. May 6, 2013), the court held that a technology company was within the protection because it assisted the plaintiff's law firm Mayer Brown. The court quoted an earlier New York state court case, which explained that "'[t]he scope of the privilege is not defined by the third parties' employment or function,'" but rather "'depends on whether the client had an expectation of confidentiality under the circumstances.'" Id. At 5 (citation omitted). Just one day later, the Southern District of New York took its typically narrow view – allowing an adversary to depose plaintiff Chevron's investigative and risk management consultant Kroll. In Chevron Corp. v Donziger, the court acknowledged that some courts take a broad view of privilege protection for lawyer agents, but warned that other courts "have limited [privilege protection] to circumstances where communications with the agent are necessary to improve the comprehension of the communications between attorney and client." No. 11 Civ. 0691 (LAK) (JCF), 2013 U.S. Dist. LEXIS 65335, at *12 (S.D.N.Y. May 7, 2013).

Lawyers hoping to maintain privilege protection in this context should weigh the risks, and carefully document the rationale for involving their agents or consultants.

Case Date Jurisidction State Cite Checked
2013-05-07 Federal NY
Comment:

key case


Chapter: 10.11

Case Name: Bank of New York Mellon, Index No. 651786/11, N.Y. Slip Op. 30996U (N.Y. Sup. Ct. May 6, 2013)
July 24, 2013 (PRIVILEGE POINT)

"Federal and State Courts Analyze the Privilege Impact of Third Parties: Lawyer Agents"

Last week's Privilege Point described the risk of involving client agents in privileged communications. The same danger arises when lawyers rely on agents and consultants.

As with client agents, some courts take a broad view. In Bank of New York Mellon, Index No. 651786/11, N.Y. Slip Op. 30996U (N.Y. Sup. Ct. May 6, 2013), the court held that a technology company was within the protection because it assisted the plaintiff's law firm Mayer Brown. The court quoted an earlier New York state court case, which explained that "'[t]he scope of the privilege is not defined by the third parties' employment or function,'" but rather "'depends on whether the client had an expectation of confidentiality under the circumstances.'" Id. At 5 (citation omitted). Just one day later, the Southern District of New York took its typically narrow view – allowing an adversary to depose plaintiff Chevron's investigative and risk management consultant Kroll. In Chevron Corp. v Donziger, the court acknowledged that some courts take a broad view of privilege protection for lawyer agents, but warned that other courts "have limited [privilege protection] to circumstances where communications with the agent are necessary to improve the comprehension of the communications between attorney and client." No. 11 Civ. 0691 (LAK) (JCF), 2013 U.S. Dist. LEXIS 65335, at *12 (S.D.N.Y. May 7, 2013).

Lawyers hoping to maintain privilege protection in this context should weigh the risks, and carefully document the rationale for involving their agents or consultants.

Case Date Jurisidction State Cite Checked
2013-05-06 State NY
Comment:

key case


Chapter: 10.11

Case Name: Bank of N.Y. Mellon, Index No. 651786/11, 2013 NY Slip Op. 30996(U), at 5, 6-7 (N.Y. Sup. Ct. May 6, 2013)
(explaining that under New York privilege law a consultant assisting the law firm of Mayer Brown was within the privilege and work product protection; explaining that the consultant ETI was retained; explaining that under New York law "'[t]he scope of the privilege is not defined by the third parties' employment or function; however, it depends on whether the client had an expectation of confidentiality under the circumstances.' Matter of Stenovich v. Wachtell, Lipton, Rosen & Katz, 195 Misc2d 99, 110, 756 N.Y.S.2d 367 (Sup Ct, NY Co 2003)"; "After careful review of the documents submitted for in camera review, this Court finds that all are properly withheld on the basis of the attorney-client privilege, the work product privilege or both. Those documents and/or testimony being withheld on the basis of the attorney-client privilege are appropriately withheld because, under the circumstances, the Court finds that ETI was serving as an agent of Mayer Brown, and all of the communications in which ETI was 'present,' reflect the client's 'expectation of confidentiality' within the context of the communications. As such, ETI's 'presence' does not constitute a waiver of the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-05-06 State NY B 3/14

Chapter: 10.11

Case Name: Baird v. Dolgencorp, L.L.C., No. 4:11 CV 1589 DDN, 2013 U.S. Dist. LEXIS 17269, at *3 (E.D. Mo. Feb. 5, 2013)
(finding that a plaintiff could depose the defendant's investigator, who had videotaped plaintiff as part of the investigation; "The privilege also extends to communications between investigators and attorneys.")

Case Date Jurisidction State Cite Checked
2013-02-05 Federal MO B 2/14

Chapter: 10.11

Case Name: Prowess, Inc. v. Raysearch Labs. AB, Civ. Case No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 14433, at *9-10 (D. Md. Jan. 18, 2013)
(recognizing courts' different approaches to privilege protection for communications to and from patent agents, and ultimately concluding that the privilege did not protect them unless a patent agent was acting as a lawyer's agent; "Courts are split on the question of whether a client's communications with patent agents receive the same protection as a client's communications with attorneys. . . . While the Fourth Circuit has not directly addressed the issue, district courts in this circuit have held that there is no patent agent privilege. . . . Of course, communications between a patent agent and a client may be privileged where the patent agent is acting as an agent of an attorney, or where 'the patent proceeding is before the United States Patent Office and the patent agent is registered with that office.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-01-18 Federal MD B 1/14

Chapter: 10.11

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 Jurisidction State Cite Checked
2013-01-01 Federal MA B 5/14

Chapter: 10.11

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 332-33 (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. 36 is an annotated transcript of a September 9, 2010, interview between a University public safety officer and K.S. [student accusing plaintiff], with her attorney in attendance. According to the privilege log, the transcript was annotated by Dempsey's mother at the direction of Attorney Becker. . . . Based on the document description in the privilege log and the Court's review of the document in camera, the preparation of this document involved confidential communication between Dempsey's mother, acting as an agent of his attorneys, and Dempsey's attorneys for the purpose of providing legal assistance to Dempsey.")

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

Chapter: 10.11

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 333 (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. 43 is an undated transcript of an interview of K.S. by local police and University public safety officers, apparently conducted in the presence of another student and a University official. Portions of the transcript are highlighted. According to the privilege log, the highlighted portions are relevant to Dempsey's criminal case, and the highlighting was performed by Dempsey's father at the direction of Attorney Becker. . . . Based on the document description in the privilege log and the Court's review of the document in camera, the preparation of this document involved confidential communication between Dempsey's father, acting as an agent of his attorneys, and Dempsey's attorneys for the purpose of providing legal assistance to Dempsey.")

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

Chapter: 10.11

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 329-30 (M.D. Pa. 2013)
("[I]t is clear from the record before the Court that Dempsey's parents played two different roles in his legal defense, both of which permitted them to participate in or receive disclosure of confidential communications without waiver of the attorney-client privilege. From the earliest stages of this affair, Dempsey's parents played an essential role in securing legal representation for Dempsey. After the retention of legal counsel, Dempsey's parents actively assisted his attorneys in preparing a defense to criminal charges and, later, student conduct charges against Dempsey. In particular, the Court notes Attorney Stephen Becker's unrebutted affidavit . . . in which Becker stated that, due to their professional backgrounds (John Dempsey is a forensic investigator and Shelley Dempsey is a retired attorney) and their relationship and knowledge of their son, he enlisted the assistance of Dempsey's parents in gathering and analyzing information and helping to prepare Dempsey's defense. It is also abundantly clear from the Court's in camera review of the documents at issue that Dempsey's parents functioned just as Attorney Becker represented, operating in concert with and at the direction of defense counsel, and providing substantial assistance in preparation of the case. Whether they came upon these roles as paid professionals or as family member volunteers is immaterial.")

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

Chapter: 10.11

Case Name: Farzan v. Wells Fargo Bank, No. 12 Civ. 1217 (RJS) (JLC), 2012 U.S. Dist. LEXIS 183623, at *7 (S.D.N.Y. Dec. 28, 2012)
(holding that communications to and from a bank's EEO consultant working under the supervision of the law department deserved privilege protection, because the consultant was working as the lawyer's agent; "Under these circumstances, it would cause unnecessary time and expense for Bernard [EEO consultant working under supervision of defendant's legal department] to be forced to appear for what would be a fruitless deposition. Thus, Defendants' request for a protective order under Rule 26(c) precluding Farzan from deposing Bernard is granted.")

Case Date Jurisidction State Cite Checked
2012-12-28 Federal NY B 5/13

Chapter: 10.11

Case Name: Farzan v. Wells Fargo Bank, No. 12 Civ. 1217 (RJS) (JLC), 2012 U.S. Dist. LEXIS 183623, at *4 (S.D.N.Y. Dec. 28, 2012)
(holding that communications to and from a bank's EEO consultant working under the supervision of the law department deserved privilege protection, because the consultant was working as the lawyer's agent; "[I]t is well-settled that '[f]actual investigations conducted by an agent of the attorney, such as 'gathering statements from employees, clearly fall within the attorney-client rubric.'"; "Although Defendant Bernard [EEO consultant working under supervision of defendant's legal department] is not an attorney, it is undisputed that she conducted the internal investigation on behalf of Wells Fargo's in-house counsel for the purpose of representing Wells Fargo in its proceedings before the EEOC. Thus, her conversations with Wells Fargo employees are plainly protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2012-12-28 Federal NY B 5/13

Chapter: 10.11

Case Name: Talent Ocean Int'l, LLC v. FDIC, Case No. 3:12-cv-144-J-32MCR, 2012 U.S. Dist. LEXIS 171797, at *4 (M.D. Fla. Dec. 4, 2012)
(holding the plaintiff's real estate agent was inside the privilege protection; "As an intermediary between Plaintiff and Defendant, Ms. Atkins's inclusion in attorney-client communications regarding the above-listed topics appears to be in furtherance of legal services rendered to Plaintiff.")

Case Date Jurisidction State Cite Checked
2012-12-04 Federal FL B 9/13

Chapter: 10.11

Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *47 (S.D. Ohio Nov. 13, 2012)
(finding that an audit by a third party consultant hired by a company's outside lawyer deserved privilege protection; "ERM [third party consultant] was specifically hired by outside counsel (Tosi) for the very purpose of performing an audit to assist Tosi in the rendition of legal advice on compliance issues. The attorney-client privilege extends to agents of the attorney where the confidential communication was made for the purpose of assisting the attorney in rendering legal advice to the client.")

Case Date Jurisidction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 10.11

Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *28 (S.D. Ohio Nov. 13, 2012)
(holding that some documents prepared during a third party consultant's audit deserved privilege protection; "Further, URS was advised that the audit documents should be discretely maintained and not intermingled with any other day-to-day business as the information contained therein was intended to aid counsel in providing legal advice. . . . Consequently, the documents provided by URS to SunCoke's counsel 'for the specific purpose of explaining or interpreting technical data so as to allow counsel to provide legal advice' to SunCoke are protected by the attorney-client privilege." (citation omitted))

Case Date Jurisidction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 10.11

Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *30 (S.D. Ohio Nov. 13, 2012)
(holding that some documents prepared during a third party consultant's audit deserved privilege protection; "[T]his document, the 'retainer' letter from SunCoke's outside counsel seeking advice and opinions from URS, is also protected by the attorney-client privilege. The letter from Mr. Sullivan explains URS's role as a consultant to SunCoke's attorneys for the purpose of providing legal advice to SunCoke.")

Case Date Jurisidction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 10.11

Case Name: Petter v. Acevedo, 31 Va. Cir. 7, 8 (Va. Cir. Ct. 1993)
("[T]he weight of authority supports such an extension [of the attorney-client privilege to cover communications between an insurance carrier and the insured and insured's counsel], and the policy reasons for the privilege support its extension to communications made by an insured to his carrier, if the carrier is required by contract to defend him and the information conveyed is intended to assist counsel in defending the insured." (citing State ex rel. Cain v. Barker, 540 S.W.2d 50 (Mo. 1976))

Case Date Jurisidction State Cite Checked
1993-01-01 State VA

Chapter: 10.11

Case Name: United States v. Bornstein, 977 F.2d 112, 117 (4th Cir. 1992)
(holding that accounting services "performed ancillary to legal advice" may be within the attorney-client privilege)

Case Date Jurisidction State Cite Checked
1992-01-01 Federal

Chapter: 10.12

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 Jurisidction State Cite Checked
2017-03-14 Federal CA
Comment:

key case


Chapter: 10.12

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.")