Showing 151 of 151 results

Chapter: 8.2

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that a United States law firm jointly represented a U.S. company and an overseas affiliate; "'The Court does not see an 'agent' theory of the attorney-client privilege present in this case. Here, the documents at issue are emails between and among employees of the various Hertz companies referenced above. The application of privilege to such communications would be more appropriately described as 'intra-' or 'inter-' corporate communications between employees and analyzed under that standard. . . . In contrast, an 'agent' is most commonly a non-lawyer third-party that assists a lawyer in providing legal services, such as an investigator, paralegal, or accountant. . . . Except for very minor exceptions identified herein, the agent theory of the attorney-client privilege is largely inapplicable to this dispute.'")

Case Date Jurisidction State Cite Checked
2017-02-28 Federal NJ

Chapter: 8.2

Case Name: Baylor v. Mitchell Rubenstein & Associates, P.C., Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. July 31, 2015)
("In her supplemental memorandum, plaintiff argues that Sunrise [a client agent retained "for the limited purpose of finding an attorney"] engaged in the unauthorized practice of law by interposing itself between Arrowood, the client, and defendant, the attorney. . . . Plaintiff then concludes that because Sunrise engaged in the unauthorized practice of law, there can be no attorney-client privilege between defendant and Sunrise or defendant and Arrowood. . . . The Court is not persuaded by this argument. Assuming without deciding that Sunrise engaged in the unauthorized practice of law, plaintiff fails to explain why such wrongdoing by Sunrise should serve to waive or eliminate Arrowood's attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-07-31 Federal DC

Chapter: 8.2

Case Name: Baylor v. Mitchell Rubenstein & Associates, P.C., Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. July 31, 2015)
("A key threshold inquiry for privilege purposes, then, is whether Sunrise acted as Arrowood's agent. If Sunrise was not Arrowood's agent, then defendant disclosed all the communications at issue to an unrelated third party. Further, the allegedly privileged materials demonstrate that Arrowood knew of defendant's communication with Sunrise. If Arrowood knowingly permitted its attorney to communicate with an unrelated third party, it would have thereby waived its privilege. . . . By contrast, if Sunrise was Arrowood's agent, then the communications between defendant and Sunrise would not be automatically disqualified from protection by the attorney-client privilege."; "The Court finds that, based on the record before it, Sunrise acted as Arrowood's agent for . . . Obtaining legal advice from defendant."; "[H]ere Arrowood hired Sunrise for the limited purpose of finding an attorney to help Arrowood collect plaintiff's debt.")

Case Date Jurisidction State Cite Checked
2015-07-31 Federal DC

Chapter: 8.2

Case Name: SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 115535, at *5 n.2 (W.D. Va. Oct. 6, 2011)
("The same is true for communications between a client and a third party retained by the client. While the United States Court of Appeals has held that the invocation of the attorney-client privilege may be appropriate in cases involving communications between a client and its agent, such communications must be 'made for the purpose of facilitating the rendition of legal services.' See In re Grand Jury Proceedings Under Seal, 947 F.2d 1188, 1191 (4th Cir. 1996).")

Case Date Jurisidction State Cite Checked
2011-10-06 Federal VA

Chapter: 8.2

Case Name: 3Com Corporation v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ct. Ch. May 31, 2010)
(applying Delaware rather than Massachusetts privilege law, and ultimately finding that the attorney-client privilege protected the client's communications with its investment banker Goldman Sachs; "This particular challenge raises a choice-of-law dispute over whether Delaware or Massachusetts law should apply. 3Com would apply the law of Delaware, which extends a wider privilege for communications made between a client and its attorney in the presence of an investment banker than that recognized by Massachusetts.")

Case Date Jurisidction State Cite Checked
2010-05-31 State DE

Chapter: 8.2

Case Name: Head v. Inova Health Care Servs., 55 Va. Cir. 43, 45 (Va. Cir. Ct. 2001)
(holding that the attorney-client privilege and the work product doctrine protected correspondence between the hospital's lawyer and a risk management analyst about an investigation of an incident that ultimately resulted in the litigation, including memoranda from the analyst to the hospital's lawyer "summarizing interviews with treating nurses"; not explaining if the analyst was an employee or consultant) [Thacher, J.]

Case Date Jurisidction State Cite Checked
2001-01-01 State VA nsvb 2/23/04

Chapter: 8.3

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that the United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is privileged."; "The subject of the document states: 'Margulis v. Hertz . . . ." This appears to be a communication by a necessary intermediary seeking information relating to the Hertz litigation. While a non-Hertz employee is involved (Mr. Slovak) he is acting as an agent in this context in the sense that he is acquiring and providing information to a Hertz employee to relay back to Hertz counsel on a legal issue in the case. Mr. Slovak's involvement is different from that of Ms. Weston's (see, e.g., Log Entry 684), because it appears that Mr. Slovak is capable of, and is, providing information to counsel that could not be provided by any other individual, rending him a necessary intermediary.")

Case Date Jurisidction State Cite Checked
2017-02-28 Federal NJ

Chapter: 8.3

Case Name: Harrington v. Bergen County, A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727 (D.N.J. Sept. 13, 2016)
November 23, 2016 (PRIVILEGE POINT)

"Plaintiff's Live-In Boyfriend was Outside Privilege Protection, but Inside Work Product Protection: Part I"

Nearly every court finds that the only client agents/consultants inside privilege protection are those necessary for the communications between the client and her lawyer. But the work product doctrine casts a wider protective net.

In Harrington v. Bergen County, A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727 (D.N.J. Sept. 13, 2016), a civil rights plaintiff suing her former employer claimed that her live-in boyfriend was inside privilege protection – so that his presence during her communications with her lawyer did not destroy the privilege. The court acknowledged that plaintiff had been involuntarily committed to a mental hospital at the pertinent time, and that her boyfriend "has provided meaningful assistance" to her. Id. at *11. But the court was "not convinced that disclosure to [her boyfriend] was necessary or essential for Plaintiff to obtain informed legal advice." Id. The court noted that the "Plaintiff offers no medical or other expert opinion" about her inability to communicate with her lawyer without her boyfriend present. Id. at *11-12. The court stripped away privilege protection from communications in her boyfriend's presence, or later shared with her boyfriend.

Most clients (both individual and corporate) do not appreciate the miniscule range for their agents/consultants to be within privilege protection. Next week's Privilege Point will address the court's work product analysis.

Case Date Jurisidction State Cite Checked
2016-09-13 Federal NJ
Comment:

key case


Chapter: 8.3

Case Name: Obeid v. La Mack, 14 cv. 6498 (LTS) (MHD), 2015 U.S. Dist. LEXIS 127327 (S.D.N.Y. Sept. 16, 2015)
("That protection extends as well to communications between (1) the attorney or his representative and (2) a representative or agent of the client, and to communications with others who are facilitating the rendition of legal services by the lawyer.").

Case Date Jurisidction State Cite Checked
2015-09-16 Federal NY

Chapter: 8.3

Case Name: Cardinal Aluminum Company v. Continental Casualty Company, Case No. 3:14-CV-857-TBR-LLK, 2015 U.S. Dist. LEXIS 95361 (W.D. Ky. July 22, 2015)
("Plaintiff's chief financial officer submitted an affidavit related to this motion. . . . In that affidavit, the CFO testified that Plaintiff 'asked [its [insurance] broker] to submit a claim to [Defendant] seeking coverage for the cost to repair the machine.' . . . Moreover, the broker negotiated on Plaintiff's behalf and advised Plaintiff concerning the claims process. . . . These specific actions do not amount to legal advice. Had an officer or employee of Plaintiff done the same, the internal communications of Plaintiff would not become privileged from discovery. The privilege only applies to communications seeking legal advice, not business advice."; "Plaintiff did not argue that its broker acted to effectuate legal representation for Plaintiff. Ky. R. Evid. 503(a)(2)(B)(iii). Based on the record before it, the Court cannot determine that the broker qualifies as a representative of Plaintiff for the purposes of Rule 503 for each or any document sought by the subpoena.")

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

key case


Chapter: 8.3

Case Name: Cohen v. Cohen, 09 Civ. 10230 (LAP), 2015 U.S. Dist. LEXIS 21319 (S.D.N.Y. Jan. 30, 2015)
(in an action by a wife against her former husband for fraud in connection with assets, analyzing the wife's communications to and from a litigation funder; finding that the funder did not meet the Kovel doctrine; "Because Ms. Napp [Funder] is neither necessary to facilitate Plaintiff's communications with counsel nor in possession of a legal claim against Defendants, her communications with Plaintiff are not privileged. With regard to her Kovel argument, Plaintiff has made no showing that Ms. Napp is 'indispensable or serve[s] some specialized purpose in facilitating the attorney client communications.'. . . Rather, her primary purpose appears initially to be making a decision as to whether her company will fund Plaintiff's legal team and thereafter reviewing and commenting on legal strategy presumably to maximize the chances of a return on her investment. These functions cannot be analogized to the interpreters or accounts of the Kovel line, who serve a specific function necessary to effectuate legal representation.")

Case Date Jurisidction State Cite Checked
2015-01-30 Federal NY

Chapter: 8.3

Case Name: Green v. Beer, No. 06 Civ. 4156 (KMW) (JCF), 2010 U.S. Dist. LEXIS 87484, at *5, *12 13, *13-14, *14 (S.D.N.Y. Aug. 24, 2010)
(reversing a portion of Magistrate Judge Francis's earlier ruling, and affirming another portion of his ruling; holding that (1) a couple did not waive their privilege protection by asking their son to print out their emails, because the son was providing necessary technical assistance to his parents (reversing Judge Francis's holding to the contrary), and (2) that the couple waived their attorney-client privilege by disclosing privileged communications to their financial advisors (affirming Judge Francis's holding); "Daniel Green, the son of the Green Plaintiffs, received email communications from counsel, which he then provided to his parents. He explained in his affidavit that his technical assistance was necessary for his parents to timely receive the email communications from counsel: 'My parents are not proficient in the use [of] electronic mail and, due to the time-sensitive nature of these communications, it was necessary for these communications to be delivered to my email address to ensure a timely receipt. My parents regularly rely on me to send and receive emails for them.'" (internal citation omitted); "The magistrate judge committed clear error by failing to apply Section 4548 of the New York Civil Practice Law and Rules, the relevant state law on attorney-client privilege and electronic communications. The magistrate judge instead applied only the two-part test for the exception to a waiver of privilege, finding that Daniel Green's involvement was not necessary to the provision of legal services given that alternative means of communication were available. This analysis is incomplete in the context of electronic communications, for which Section 4548 applies. Plaintiffs have provided sufficient evidence that the Green Plaintiffs lack proficiency in the use of email, and that their son's assistance was 'necessary for the delivery of facilitation' of counsel's emailed communications to the Green Plaintiffs. . . . Thus, under Section 4548, the Green Plaintiffs have not waived the attorney-client privilege based on Daniel Green's involvement in the delivery of the disputed emails."; "The magistrate judge also erred by not finding that Daniel Green served as an agent for the Green Plaintiffs, and that his involvement in the delivery of the otherwise confidential communications would not constitute a waiver of privilege. It is clear that the Green Plaintiffs had a reasonable expectation that the email communications would remain confidential, and that the technical assistance provided by their son, in his capacity as their agent, should not constitute a waiver of the attorney-client privilege."; "A finding that privilege has not been waived in this case is appropriate as a matter of public policy. Email permits attorneys and their clients to engage in prompt communication, often regarding time-sensitive matters. A client lacking proficiency in Internet technology should not be prevented from enjoying the advantages of email correspondence for fear that the necessary assistance of a third party -- here, the Green Plaintiff's son -- in sending or receiving such correspondence will lead to the forfeiture of the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2010-08-24 Federal NY B 7/16
Comment:

key case


Chapter: 8.3

Case Name: Parker v. Carter, 18 Va. (4 Munf.) 273, 287 n.1, 275 (1814)
("It was admitted by all the judges in conference, that the privilege equally applied to interpreters acting as the organ of communication between the client and his attorney")

Case Date Jurisidction State Cite Checked
1814-01-01 State VA

Chapter: 8.4

Case Name: Bousamra v. Excela Health, No. 1637 WDA 2015, 2017 Pa. Super. LEXIS 166 (Pa. Super. Ct. March 13, 2017)
("[T]he presence of the third party, under the rationale of the courts, must be necessary or, at the very least, useful, for purposes of the lawyer's dissemination of legal advice. There is a fatal flaw in Exela's [Client] attempt to invoke the pertinent case law. Excela decidedly failed to establish the facts necessary for application of these cases. Other than a vague affidavit contradicted by deposition testimony, Excela produced no facts to establish that Ms. Foster [Outside lawyer] or Excela hired Jarrad ["Independent public relations firm"] to aid in rendering the legal advice, i.e., whether the doctors could be named."; "Mr. Fedele [General counsel] did not indicate that he consulted with Jarrard about the legal implications of using the doctors' names. Rather, he had sought that advice from outside counsel, as evidenced by his request for an opinion letter on the subject from Ms. Foster. During his deposition, Mr. Fedele stated that he did not recall have any dialogue 'with Jarrard, Cate, Phillips between the 25th of February to the 28th of [February] eliminating the question regarding the legal issues preventing publicly identifying the physicians[.]'. . . He did not recall having legal discussions with Jarrard about any other matter. . . . Jarrard was hired by Excela to handle the media event and was not consulted to aid in the legal discussion. Jarrard's presence was not necessary or even highly useful to the question of whether to publicly name the doctors."; "Excela's position, at its essence, is that it did not waive the privilege because the disclosure was made to 'an agent assisting the attorney in giving legal advice to the client.'. . . We disagree. Jarrard was not an agent of the attorney, Ms. Foster. Ms. Foster did not seek advice or help from Jarrard in rendering her legal opinion. Jarrard was a separate legal entity, a media consulting firm, hired by Excela. Excela simply fails to establish, by reference to deposition testimony of Ms. Cates, Ms. Foster, or of any other member of the Jarrard team that Jarrard was involved in the process of the Ms. Foster's tender of legal advice."; "We find it most significant that there was no proof of any communication between Ms. Foster and Jarrard on the subject matter so that Ms. Foster did not seek Jarrard's input, to any extent, in forming her legal opinion. Likewise, Excela did not ask Jarrard's team for any feedback or response to Ms. Foster's previously-formed legal opinion. Excela does not refer to any place in the record establishing that Jarrard was involved, as a member of a team, with either Excela or Ms. Foster in connection with outside counsel's legal judgment on the matter. Thus, Excela does not support its factual position that Jarrard was in some way a participant into the question of the legal advisability of naming the two doctors during the public announcement. Its reliance upon the case law in question is therefore misguided.")

Case Date Jurisidction State Cite Checked
2017-03-13 State PA

Chapter: 8.4

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that the United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is privileged."; "The subject of the document states: 'Margulis v. Hertz . . . ." This appears to be a communication by a necessary intermediary seeking information relating to the Hertz litigation. While a non-Hertz employee is involved (Mr. Slovak) he is acting as an agent in this context in the sense that he is acquiring and providing information to a Hertz employee to relay back to Hertz counsel on a legal issue in the case. Mr. Slovak's involvement is different from that of Ms. Weston's (see, e.g., Log Entry 684), because it appears that Mr. Slovak is capable of, and is, providing information to counsel that could not be provided by any other individual, rending him a necessary intermediary.")

Case Date Jurisidction State Cite Checked
2017-02-28 Federal NJ

Chapter: 8.4

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
Comment:

key case


Chapter: 8.4

Case Name: Valenzuela v. Union Pacific Railroad Co., No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640, at *20 (D. Ariz. Dec. 21, 2016)
February 15, 2017 (PRIVILEGE POINT)

"What Client Agents Deserve Privilege Protection?"

Nearly every court considers client agents outside privilege protection unless those agents are necessary for facilitating privileged communications between clients and their lawyers. Some courts occasionally take a broader view – but without starting a trend.

In In re Riddell Concussion Reduction Litigation, the court assessed privilege protection for defendant's communications with "a public relations firm that consults with clients on communication strategies." Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457, at *21 (D.N.J. Dec. 5, 2016). Most courts find such agents outside privilege protection, but the Riddell court held that "it is unquestionably the case that communications between and amongst Riddell and [the PR agency] for the purpose of securing legal advice are privileged." Id. at *14-15. A few weeks later, Valenzuela v. Union Pacific Railroad Co. held that a company's "right-of-way agent" deserved privilege protection under both Arizona and California law. No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640, at *20 (D. Ariz. Dec. 21, 2016). But between those two decisions, a New York court applied the majority rule – holding that the plaintiff's brother (who was also funding the plaintiff's litigation) was outside privilege protection, because the plaintiff "cannot show that [his brother/litigation funder] served to facilitate attorney-client communications or representation," or acted as an agent "whose services are necessary for the provision or receipt of legal services." Kagan v. Minkowitz, No. 500940/2016, 2016 N.Y. Misc. LEXIS 4577, at *6-7 (N.Y. Sup. Ct. Dec. 9, 2016).

Many corporate executives mistakenly believe that they can share privileged communications with corporate agent/consultants without waiving the privilege. A handful of cases now and then provides a tempting sign that courts are becoming more forgiving, but the majority continues to find nearly all such agent/consultants outside privilege protection.

Case Date Jurisidction State Cite Checked
2016-12-21 Federal AZ
Comment:

key case


Chapter: 8.4

Case Name: Kagan v. Minkowitz, 500940/2016, 2016 N.Y. Misc. LEXIS 4577, 2016 NY Slip Op 32429(U) (N.Y. Dec. 9, 2016)
(finding that plaintiff's brother was outside privilege protection, and did not share a common interest with the plaintiff; in contrast, finding that disclosure to the brother did not waive work product protection; "Here, Kagan has submitted to the Court, for in camera review, various email exchanges between himself and his counsel that were either forwarded to Gam [Plaintiff's brother and funder of the litigation] or wherein Gam was copied. Upon review of the papers submitted and consideration of the foregoing principles, the Court finds that the attorney-client emails which were forwarded to Gam are not protected by the attorney-client privilege because no counsel was present when Gam received the information. Kagan fails to provide support for the proposition that the attorney-client privilege applies to email communications between a client and his attorney that were later forwarded to a third party. Moreover, even if the attorney-client privilege were applicable, because these attorney-client emails were forwarded to Gam after the fact, Kagan cannot show that Gam served to facilitate attorney-client communication or representation at the time such communication took place so that the agency exception would apply. In any case, Kagan has failed to establish that Gam, generally, is his agent or his counsel's agent whose services are necessary for the provision or receipt of legal services.")

Case Date Jurisidction State Cite Checked
2016-12-09 State NY

Chapter: 8.4

Case Name: In re Riddell Concussion Reduction Litigation, Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457, at *21 (D.N.J. Dec. 5, 2016)
February 15, 2017 (PRIVILEGE POINT)

"What Client Agents Deserve Privilege Protection?"

Nearly every court considers client agents outside privilege protection unless those agents are necessary for facilitating privileged communications between clients and their lawyers. Some courts occasionally take a broader view – but without starting a trend.

In In re Riddell Concussion Reduction Litigation, the court assessed privilege protection for defendant's communications with "a public relations firm that consults with clients on communication strategies." Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457, at *21 (D.N.J. Dec. 5, 2016). Most courts find such agents outside privilege protection, but the Riddell court held that "it is unquestionably the case that communications between and amongst Riddell and [the PR agency] for the purpose of securing legal advice are privileged." Id. at *14-15. A few weeks later, Valenzuela v. Union Pacific Railroad Co. held that a company's "right-of-way agent" deserved privilege protection under both Arizona and California law. No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640, at *20 (D. Ariz. Dec. 21, 2016). But between those two decisions, a New York court applied the majority rule – holding that the plaintiff's brother (who was also funding the plaintiff's litigation) was outside privilege protection, because the plaintiff "cannot show that [his brother/litigation funder] served to facilitate attorney-client communications or representation," or acted as an agent "whose services are necessary for the provision or receipt of legal services." Kagan v. Minkowitz, No. 500940/2016, 2016 N.Y. Misc. LEXIS 4577, at *6-7 (N.Y. Sup. Ct. Dec. 9, 2016).

Many corporate executives mistakenly believe that they can share privileged communications with corporate agent/consultants without waiving the privilege. A handful of cases now and then provides a tempting sign that courts are becoming more forgiving, but the majority continues to find nearly all such agent/consultants outside privilege protection.

Case Date Jurisidction State Cite Checked
2016-12-05 Federal NJ
Comment:

key case


Chapter: 8.4

Case Name: Rao v. The Bd. of Trustees of the Univ. of Ill., No. 14-cv-0066, 2016 U.S. Dist. LEXIS 145298 (N.D. Ill. Oct. 20, 2016)
(holding that plaintiff's wife did not share a common interest with her husband, and was not within the privilege protection as her husband's agent, and had admitted that lawyer/children were not acting as her lawyer during the communications; inexplicably not addressing work product protection; "Plaintiff argues that Ms. Jasti's presence on communications between Plaintiff and his lawyers does not destroy the privilege because she 'has driven [Plaintiff] to all meetings with attorneys in this matter,' and 'has also been extremely helpful to counsel in communicating with Dr. Rao, locating and transmitting documents to his counsel, filling in factual gaps when Dr. Rao cannot recall a relevant incident, typing documents for Dr. Rao, providing information about the family's finances, conducting internet research on issues and parties in the case, among other things.". . . The Court does not believe that Plaintiff has carried his burden of proving that Ms. Jasti's role in this litigation is the type that preserves the privilege despite her third party status. This Court's review of the case law in the Seventh Circuit suggests that the privilege protects communications with third parties when the third party is an agent, employee, or outside expert retained for the purposes of litigation. . . . While the exception appears to be flexible, the Court has found no case law that would stretch the exception to reach Ms. Jasti's role in this case."; "The Court has found no case in this circuit where the privilege has extended to family members of parties who are primarily assisting with basic ministerial and administrative tasks, which appears to Ms. Jasti's role in this litigation. The Court accepts that Ms. Jasti was important to the litigation, but that alone is not enough to preserve the privilege. . . . While it is possible that Ms. Jasti was acting as an agent of the Plaintiff, neither the factual recitation nor the legal arguments in Plaintiff's brief present any such assertion. Nor has Plaintiff argued that Ms. Jasti acted as an interpreter or expert that was necessary for Plaintiff's counsel to provide adequate and meaningful legal advice. Given Plaintiff's burden to show that the privilege should apply, and the Seventh Circuit's admonition that the attorney-client privilege should be construed narrowly, the Court cannot find that Plaintiff's communications with his lawyer in the presence of Ms. Jasti were made 'in confidence.' As such, they are not protected by the attorney-client privilege. Ms. Jasti is ordered to produce the documents sought in the Defendants' third-party subpoena on or before October 24, 2016.")

Case Date Jurisidction State Cite Checked
2016-10-20 Federal IL
Comment:

key case


Chapter: 8.4

Case Name: In re International Oil Trading Company, LLC, Case No. 15-21596-EPK, Ch. 7, 2016 Bankr. LEXIS 1856 (S.D. Fla. April 28, 2016)
("The Court believes the case law applying the broader approach to the 'agency exception' is more consistent with the purpose for the exception and thus better reasoned. The broader approach to the 'agency exception' is also in agreement with Florida law."; "In this case, Mr. Al-Saleh possesses a judgment against IOTC USA and is attempting to collect on that judgment. IOTC USA is an entity that has demonstrated an ability and willingness to resist Mr. Al-Saleh's collection efforts. In order to obtain counsel and collect the money he is owed, Mr. Al-Saleh secured outside funding from a lender. In order to determine whether to lend money to Mr. Al-Saleh, the litigation funder must assess the potential litigation, both at the outset and on an ongoing basis, using information provided by Mr. Al-Saleh and his counsel. With that information, the funder may advise Mr. Al-Saleh as to the cost of pursuing collection, the risks involved, and the best strategies to pursue in litigation. The thousands of pages of communications at issue in the Third Motion to Compel imply that the funder's involvement has significant value to Mr. Al-Saleh and is integral to his pursuit of legal advice."; "Communications with a litigation funder fall within the agency exception for the very reason that litigation funders exist -- because without litigation funders, parties owed money, or otherwise stymied by deep-pocketed judgment debtors, might have reduced or no ability to pursue their claims. Litigation funders may be essential to the provision of legal advice in such cases. . . . Mr. Al-Saleh has engaged Burford 'in furtherance of the rendition of legal services,' and the communication of otherwise privileged information to Burford did not result in waiver of the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2016-04-28 Federal FL
Comment:

key case


Chapter: 8.4

Case Name: In re International Oil Trading Co. 548 B.R. 825 (Bankr. S.D. Fla. 2016)
June 22, 2016 (PRIVILEGE PONT)

"Court Takes a Liberal View of Privilege for Communications Between a Plaintiff and a Litigation Funder"

With litigants' increasing reliance on litigation funders, courts have had to wrestle with privilege and work product issues, including whether litigants and their litigation funders share a "common interest" allowing the former to avoid a waiver when disclosing privileged communications to the latter, and whether litigation funders can create protected work product.

In In re International Oil Trading Co. 548 B.R. 825 (Bankr. S.D. Fla. 2016), the court held that the plaintiff and its litigation funder Burford Capital shared a sufficiently common legal interest, so that the plaintiff did not waive its privilege protection by disclosing privileged communications to Burford. And the court even went beyond that — finding that Burford was a protected client agent assisting the company "'in furtherance of the rendition of legal services,'" and therefore within the privilege on that separate ground. Id. At 834 (citation omitted). The court also held that Burford could create protected work product, concluding that "[i]t does not matter that Burford's obvious purpose is to obtain a return on its investment, just as it does not matter that counsel's purpose typically is to earn a fee." Id. At 836.

Not all courts share this liberal attitude toward privilege and work product protection in the context of litigation funders, but the trend seems to be in that direction.

Case Date Jurisidction State Cite Checked
2016-01-01 Federal FL
Comment:

key case


Chapter: 8.4

Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("Under the third-party consultant exception, disclosure does not waive the attorney-client privilege so long as 'disclosure is necessary to further the goal of enabling the client to seek informed legal assistance.'")

Case Date Jurisidction State Cite Checked
2015-12-14 Federal PA

Chapter: 8.4

Case Name: Las Olas River House Condo Assoc., Inc. v. Lorh, LLC, No. 4D15-2289, 2015 Fla. App. LEXIS 18400 (Fla. App. 4d Dec. 9, 2015)
(finding that disclosure to a condominium's property manager did not automatically waive privilege protection, and remanding; "Under our Evidence Code, '[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client. § 90.502(2), Fla. Stat. (2014) (emphasis added)."; "'A communication between lawyer and client is 'confidential' if it is not intended to be disclosed to third persons other than: (1) Those to whom disclosure is in furtherance of the rendition of legal services to the client. (2) Those reasonably necessary for the transmission of the communication.'"; "§ 90.502(2), Fla. Stat. (2014) (emphasis added). The second exception applies to agents of the client -- for example, when a family member acts on behalf of an incapacitated relative . . . Or when a messenger is needed for a client to contact counsel.")

Case Date Jurisidction State Cite Checked
2015-12-09 Federal FL

Chapter: 8.4

Case Name: Heinzl v. Cracker Barrel Old Country Store, Inc., Civ. A. No. 2:14-cv-1455, 2015 U.S. Dist. LEXIS 146825 (W.D. Pa. Oct. 29, 2015)
(in connection with a Rule 30(b)(6) deposition; holding that a third party consultant's ADA report did not deserve privilege or work product protection; rejecting an affidavit by a Cracker Barrel lawyer supporting such protections; "For instance, Mr. Dorsey [Cracker Barrel's witness] testified at the Rule 30(b)(6) deposition that Robert Buck, a third-party consultant hired by Defendant, surveyed about a dozen Cracker Barrel stores for ADA compliance issues. Mr. Dorsey explained that Mr. Buck provided the inspection reports to Mr. Dorsey, Defendant's Senior Director of Construction Facility Services, and Jeff Smith, Mr. Dorsey's predecessor. . . . Plaintiff notes that Mr. Dorsey did not testify that Defendant's counsel received Mr. Buck's reports."; "Plaintiff notes that Mr. Dorsey's testimony also reveals that Defendant largely relied on the surveys to provide financial guidance for undertaking remediation projects and to monitor store conditions. . . . In other words, the surveys helped facilitate business decisions, not legal decisions. Plaintiff argues that the surveys cannot be considered communications for purposes of obtaining legal advice and that the attorney-client privilege does not apply.")

Case Date Jurisidction State Cite Checked
2015-10-29 Federal PA

Chapter: 8.4

Case Name: Heinzl v. Cracker Barrel Old Country Store, Inc., Civ. A. No. 2:14-cv-1455, 2015 U.S. Dist. LEXIS 146825 (W.D. Pa. Oct. 29, 2015)
(in connection with a Rule 30(b)(6) deposition; holding that a third party consultant's ADA report did not deserve privilege or work product protection; rejecting an affidavit by a Cracker Barrel lawyer supporting such protections; "Wilson [Cracker Barrel's Associate General Counsel responsible for ADA Compliance] explains that several of the documents are contracts for services between Cracker Barrel and engineering firms (the Buck Group, QPM and D&E) and that the reports, evaluations and other documents listed on the Privilege Log were all prepared pursuant to those contracts in order to assist her in her capacity as Cracker Barrel's in-house legal counsel; that the experts were engaged in anticipation of litigation such as the instant case when, in 2011, Wilson and other Cracker Barrel representatives concluded that they needed expert evaluations to determine if any stores were vulnerable to accessibility litigation following the effective date of the 2010 ADA Standards for Accessible Design and associated governmental regulations."; "Mr. Dorsey confirmed that monitoring the compliance of parking lots with the ADA has been ongoing. . . . Mr. Dorsey testified that Defendant hired Mr. Buck, the third party consultant, 'sometime in 2012,' which was years before Plaintiff filed her Complaint against Defendant."; "Additionally, even if Defendant investigated issues that could involve litigation in the future, courts have held that such investigations do not warrant protection under the work product doctrine because they were done in the ordinary course of business."; "Defendant has not demonstrated that the documents at issue constitute attorney work-product, as opposed to ordinary business documents created during routine renovations at facilities or when certain stores received complaints from customers. Ms. Wilson's statement that she 'subjectively believed that litigation was a real possibility when the 2010 ADA Guidelines went into effect' is at odds with Mr. Dorsey's testimony that the documents were created during the normal course of business, without any involvement of counsel and contemporaneous documents discussing the project which do not reflect the involvement of counsel. Defendant's argument should be rejected and Plaintiff's motion to compel these documents should be granted.")

Case Date Jurisidction State Cite Checked
2015-10-29 Federal PA
Comment:

key case


Chapter: 8.4

Case Name: Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015)
December 2, 2015 (PRIVILEGE POINT)

"Decision Highlights a Key Difference Between Attorney-Client Privilege and Work Product Doctrine Protection"

The attorney-client privilege provides absolute but fragile protection. In contrast, work product doctrine protection can be overcome — but offers more robust safety than the privilege. This distinction affects the impact of third parties' participation, and disclosure of protected communications or documents to third parties.

In Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015), the court dealt with plaintiff's communications with his lawyer — in the plaintiff's father-in-law's presence. The court found that the father-in-law's participation rendered the privilege unavailable — holding that the father-in-law "was not necessary to Plaintiff's communications with his counsel and [therefore] does not fall within the privilege." Id. at *6. In addressing the work product doctrine, the court applied the universal rule that "unlike the more sensitive attorney-client privilege, waiver of work product protection does not occur simply because a document is shared with a third person." Id. At *10. Because the father-in-law's "interests are aligned with Plaintiff's," disclosing work product to the father-in-law did not waive that separate protection. Id. At *11. In fact, the court concluded that the plaintiff's father-in-law could himself prepare protected work product under Fed. R. Civ. P. Rule 26(b)(3)(A) — which can cover documents prepared in anticipation of litigation "for" a party (such as the plaintiff). Id. At *7.

The attorney-client privilege and the work product doctrine apply in dramatically different ways in the context of friendly third parties — who are generally outside privilege protection but inside work product protection, and who, even themselves, can create protected work product. Corporate lawyers should remember these rules when considering their corporate clients' friendly third parties such as accountants, consultants, or other agents.

Case Date Jurisidction State Cite Checked
2015-09-29 Federal AZ
Comment:

key case


Chapter: 8.4

Case Name: Obeid v. Mack, 14-cv-6498 (LTS) (MHD), 2015 U.S. Dist. LEXIS 127327 (S.D.N.Y. Sept. 16, 2015)
("That protection extends as well to communications between (1) the attorney or his representative and (2) a representative or agent of the client, and to communications with others who are facilitating the rendition of legal services by the lawyer.").

Case Date Jurisidction State Cite Checked
2015-09-16 Federal NY

Chapter: 8.4

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: 8.4

Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015)
("The third-party communications 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.'")

Case Date Jurisidction State Cite Checked
2015-06-09 Federal CA

Chapter: 8.4

Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015)
("The attorney-client privilege can extend to communications between representatives of the client or between the client and a representative of the client, if the communication was made in confidence for the primary purpose of obtaining legal advice.")

Case Date Jurisidction State Cite Checked
2015-06-09 Federal CA

Chapter: 8.4

Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015)
("The third-party communications must be interpretive and serve to translate informative information between the client and the attorney.")

Case Date Jurisidction State Cite Checked
2015-06-09 Federal CA

Chapter: 8.4

Case Name: Smith v. Unilife Corp., Civ. A. No. 13-5101, 2015 U.S. Dist. LEXIS 18755 (E.D. Pa. Feb. 13, 2015)
(finding that the attorney-client privilege protected draft 10-K filings, and that the nonlawyer consultants were the functional equivalent of employees; "A trial judge is not in a good position to second-guess a corporate decision to rely on an independent consultant or an employee to accomplish a specific task and/or to make recommendations to the CEO or general counsel. A review of the documents demonstrated that the communications were with counsel and were made for the purpose of assisting the corporation in securing legal advice or making legal decisions.")

Case Date Jurisidction State Cite Checked
2015-02-13 Federal PA
Comment:

key case


Chapter: 8.4

Case Name: Cohen v. Cohen, 09 Civ. 10230 (LAP), 2015 U.S. Dist. LEXIS 21319 (S.D.N.Y. Jan. 30, 2015)
(in an action by a wife against her former husband for fraud in connection with assets, analyzing the wife's communications to and from a litigation funder; finding that the funder did not meet the Kovel doctrine; finding the agreement between the wife and the litigation funder not assure privilege protection; "Nor can Plaintiff rely on Ms. Napp's Consulting Agreements to create such a privilege where there is none. . . . Although the expectation of confidentiality and expressions of need reflected in those Agreements may be relevant to this Court's analysis, the core of the inquiry must focus on the actual substance of Ms. Napp's role in the attorney-client relationship. Viewed as a whole, there is nothing about Ms. Napp's advice or commentary that is critical to Plaintiff's ability to seek and receive legal advice from her counsel.")

Case Date Jurisidction State Cite Checked
2015-01-30 Federal NY

Chapter: 8.4

Case Name: Cohen v. Cohen, 09 Civ. 10230 (LAP), 2015 U.S. Dist. LEXIS 21319 (S.D.N.Y. Jan. 30, 2015)
(in an action by a wife against her former husband for fraud in connection with assets, analyzing the wife's communications to and from a litigation funder; finding that the funder did not meet the Kovel doctrine; "Because Ms. Napp [Funder] is neither necessary to facilitate Plaintiff's communications with counsel nor in possession of a legal claim against Defendants, her communications with Plaintiff are not privileged. With regard to her Kovel argument, Plaintiff has made no showing that Ms. Napp is 'indispensable or serve[s] some specialized purpose in facilitating the attorney client communications.'. . . Rather, her primary purpose appears initially to be making a decision as to whether her company will fund Plaintiff's legal team and thereafter reviewing and commenting on legal strategy presumably to maximize the chances of a return on her investment. These functions cannot be analogized to the interpreters or accounts of the Kovel line, who serve a specific function necessary to effectuate legal representation.")

Case Date Jurisidction State Cite Checked
2015-01-30 Federal NY

Chapter: 8.4

Case Name: Woodard v. Victory Records, Inc., No. 11 CV 7594, 2013 U.S. Dist. LEXIS 159498, at *25-26 (N.D. Ill. Nov. 7, 2013)
(finding that an agent for a musical band was outside the privilege protection; "The court turns next to Plaintiffs' assertion that even if Janick were deemed a consultant, consultants can also serve as agents under certain circumstances. The court agrees with Plaintiffs that consultants can serve as agents under certain circumstances and thus fall within the ambit of the attorney-client privilege. However, Plaintiffs have not shown that the circumstances here elevate Janick to the status of an agent. Most applicable are those cases in which third parties such as accountants and investment banking firms have qualified as agents based upon a showing that they 'assist[ed] a lawyer in giving legal advice,' and that their 'participation was required to enable the attorney to render legal advice.'" (citation omitted))

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

Chapter: 8.4

Case Name: In re Baugher, No. 353909/P, 2013 N.Y. Slip Op. 51622(U), at 8 (N.Y. Sur. Ct. Sept. 30, 2013)
(analyzing the fiduciary exception; "As to disclosure to a relative or friend, the test to determine whether the privilege was waived is whether the participation of a third person was 'reasonably necessary for the protection of the client's interests.'" (citation omitted); "The estate has failed to establish that there was an agency relationship. The court makes no finding of fact as to the capacity of Phebe Baugher or her dependency on others, except for the purpose of determining the motions for pretrial disclosure."; "The privilege was waived by disclosure of the correspondence. The court declines to find that disclosure was waived as to all privileged communications on the same subject.")

Case Date Jurisidction State Cite Checked
2013-09-30 State NY B 5/14

Chapter: 8.4

Case Name: Swift Spindrift, Ltd. v. Alvada Ins., Inc., No. 09 Civ. 9342 (AJN) (FM), 2013 U.S. Dist. LEXIS 104296, at *21-22, *22-23, *23 (S.D.N.Y. July 24, 2013)
("Swift is correct in observing that the attorney-client privilege may extend to communications shared with its agents, but it makes no attempt to identify which emails it believes are protected under this theory. Rather, Swift merely states generally that all of the third parties included on the shared communications were 'acting as [its] agents.'. . . Swift does not explain, however, how including V-Ships [management company hired by plaintiff] on their attorney-client emails assisted the process, or even make clear which entries on the privilege log relate to the V-Ships communications."; "Swift similarly has failed to demonstrate that disclosure to V-Ships was necessary in order for it to obtain informed legal advice. 'Necessary,' in the context of third party disclosures, 'means more than just useful and convenient, but rather requires that the involvement of the third party be indispensable or serve some specialized purpose in facilitating the attorney-client communications.'. . . It does not appear that V-Ships served any specialized purpose here other than perhaps to provide factual information to Cumming [in-house lawyer] and Swift's principals. That, however, is insufficient to avoid a privilege waiver."; "Additionally, because Swift has failed to show that the disclosure of emails to third parties other than V-Ships was necessary to facilitate the attorney-client relationship, the privilege also has been waived with respect to such communications. Any communications disclosed to third parties other than V-Ships consequently also must be produced.")

Case Date Jurisidction State Cite Checked
2013-07-24 Federal NY B 4/14

Chapter: 8.4

Case Name: Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at *43, *43-44, *44, *45, *46, *47, *48 (S.D. Ga. May 8, 2013)
(in an employment discrimination case against celebrity Paula Deen and her brother "Bubba" Hiers, ultimately concluding that Deen's three outside consultants were outside the attorney-client privilege protection; "[T]he defendants rely on Paula Deen's affidavit. . . . She attests that Barry Weiner is her 'agent and business adviser.'. . . Lucie Salhany is 'a business consultant for' Paula Deen Enterprises, LLC (PDE)), . . . and she works 'with designated PDE personnel on staffing and salary issues, and the improvement of hiring practices,' plus marketing and public relations functions. . . . She is 'an integral person in a group dealing with issues that are completely intertwined with PDE's litigation and legal strategies.' . . . And Jeff Rose is affiliated with 'The Rose Group,' which is a 'brands relation agency.' . . . That group provides 'marketing and public relations services for PDE.' . . . Rose thus is an integral part of the Weiner-Salhany-Rose cluster that gathers 'to discuss litigation and legal strategies.' . . . Rose, then, 'must hear the advice of legal counsel regarding these matters.'"; "Those three contractors, Deen concludes, 'are indistinguishable from my employees because each, in their individual capacity, acts for me and my business entities and possesses the information needed by attorneys in rendering legal advice.'"; "Plaintiff insists that the documents Gerard copied to them are discoverable because Deen's affidavit at most speaks of her general reliance on them, while they themselves have not provided affidavits showing they possess sufficient, specific knowledge of this case to place them within that protection zone."; "It is true that there is no per se rule restricting a corporation's assertion of its attorney-client based privilege to employees, as it is common to seek legal assistance from third parties who are neither employees nor lawyers."; "Those third parties, however, must be nearly indispensable to that effort."; "Significant here is what the defendants do not say. They do not supply: (a) any affidavit from any of the agents showing what specific role they have played with respect to this case; and (b) what communications in fact were sent to them and for what purpose. There is a difference, for example, between helping to formulate and factually support a legal strategy versus damage control-based, publicity management -- a patently commercial endeavor."; "Deen's affidavit, meanwhile, speaks only in general terms. Nothing approaching the 'nearly indispensable role' is described."; "Waiver thus has occurred, so defendants must disclose all of Gerard's communications regarding Jackson's complaints, where these individuals were in the loop.")

Case Date Jurisidction State Cite Checked
2013-05-08 Federal GA B 8/13

Chapter: 8.4

Case Name: Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at *45 (S.D. Ga. May 8, 2013)
(in an employment discrimination case against celebrity Paula Deen and her brother "Bubba" Hiers, ultimately concluding that Deen's three outside consultants were outside the attorney-client privilege protection; rejecting Deen's functional equivalent argument; "Those third parties, however, must be nearly indispensable to that effort.")

Case Date Jurisidction State Cite Checked
2013-05-08 Federal GA B 8/13

Chapter: 8.4

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: 8.4

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: 8.4

Case Name: Caruso v. Grace, No. 11 Civ. 2353 (SAS) (KNF), 2012 U.S. Dist. LEXIS 89176, at *17 (S.D.N.Y. June 27, 2012)
(holding that the participation of Nancy Grace's talent agency representative in otherwise privileged discussions between Nancy Grace and her lawyer meant that the privilege did not protect those communications; applying New York law in a diversity case without a choice of laws analysis; finding that the talent agency employee was not a necessary client agent, was not the functional equivalent of an employee, and was not assisting the lawyer in providing legal advice; "That Perry might have been an expert in syndication deals who advised Grace on her business deals would not establish, by itself, that Perry facilitated Grace's seeking or obtaining legal advice or services from Shire.")

Case Date Jurisidction State Cite Checked
2012-06-27 Federal NY B 10/12

Chapter: 8.4

Case Name: Green v. Beer, No. 06 Civ. 4156 (KMW) (JCF), 2010 U.S. Dist. LEXIS 87484, at *11-12, *12 (S.D.N.Y. Aug. 24, 2010)
(reversing a portion of Magistrate Judge Francis's earlier ruling, and affirming another portion of his ruling; holding that (1) a couple did not waive their privilege protection by asking their son to print out their emails, because the son was providing necessary technical assistance to his parents (reversing Judge Francis's holding to the contrary), and (2) that the couple waived their attorney-client privilege by disclosing privileged communications to their financial advisors (affirming Judge Francis's holding); "The magistrate judge did not err in finding that Plaintiffs failed to establish that the sharing of the documents with Plaintiffs' Financial Advisors was 'necessary, let alone 'nearly indispensable[,]' to the provision of legal advice' to Plaintiffs. . . . The affidavits submitted by Plaintiffs do not establish that Plaintiffs' Financial Advisors' involvement was 'necessary,' or that Plaintiffs' Financial Advisors 'serve[d] some specialized purpose in facilitating the attorney-client communication' and the provision of proper legal advice. . . . There is also no evidence that Plaintiffs' Financial Advisors played a 'necessary' role in the delivery of facilitation of the emails. See N.Y.C.P.L.R. § 4548."; "Accordingly, the rejection of Plaintiffs' assertion of privilege as to the documents disclosed to Plaintiffs' Financial Advisors was not clearly erroneous, and is therefore affirmed.")

Case Date Jurisidction State Cite Checked
2010-08-24 Federal NY B 7/16
Comment:

key case


Chapter: 8.4

Case Name: Schwarz & Schwarz of Va., L.L.C. v. Certain Underwriters at Lloyd's, London, Civ. A. No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, at *15 (W.D. Va. Apr. 16, 2009)
("The attorney-client '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.' Edwards, 235 Va. at 509, 370 S.E.2d at 301." (citations omitted))

Case Date Jurisidction State Cite Checked
2009-04-16 Federal VA B 3/16
Comment:

key case


Chapter: 8.4

Case Name: Campbell v. Dastoor, 79 Va. Cir. 569, 570, 572 (Va. Cir. Ct. 2009)
(analyzing the privilege and work product implications of a doctor sued for medical malpractice moving to another employer (PCA), which was the named insured patient in the medical malpractice insurance policy; explaining that the new employer's president and CEO attended the defendant doctor's deposition and mediation, and "has been involved in face-to-face and telephone conversations with counsel for Defendant and with the claim specialist for Hudson [medical malpractice insurance carrier]. Dr. Polverino [CEO] also received electronic mail from defense counsel, Hudson, and Defendant." (footnotes omitted); ultimately rejecting the doctor's argument that the new employer's president/CEO was an agent within the attorney-client relationship; "There is no evidence that Dr. Polverino's role was 'indispensable.' More significantly, Defendant did not possess the power to control Dr. Polverino's actions. Absent that element of control, there was no agency relationship between Defendant and Dr. Polverino."; "Dr. Polverino may be an agent for PCA, but is not an agent for Defendant personally. Furthermore, the lawsuit is between Defendant and a former patient. PCA is not named as a party to this suit. Therefore, since Dr. Polverino is neither an agent of Defendant nor an agent of Defendant's counsel, the communications between Dr. Polverino, counsel for Defendant, and Hudson are not covered."; also finding that the new employer's president/CEO was not within the attorney-client relationship, and did not share a common interest with the defendant doctor)

Case Date Jurisidction State Cite Checked
2009-01-01 Federal VA B 10/10

Chapter: 8.4

Case Name: Campbell v. Dastoor, 79 Va. Cir. 569, 570, 571 (Va. Cir. Ct. 2009)
(analyzing the privilege and work product implications of a doctor sued for medical malpractice moving to another employer (PCA), which was the named insured in the medical malpractice insurance policy; explaining that the new employer's president and CEO attended the defendant doctor's deposition and mediation, and "has been involved in face-to-face and telephone conversations with counsel for Defendant and with the claim specialist for Hudson [the medical malpractice insurance carrier]. Dr. Polverino [CEO] also received electronic mail from defense counsel, Hudson, and Defendant." (footnotes omitted); concluding that the attorney-client privilege did not protect communications between the new employer's president/CEO and the doctor's lawyer; "'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.' The Defendant asks the Court to extend the privilege to communications involving Dr. Polverino." (footnote omitted))

Case Date Jurisidction State Cite Checked
2009-01-01 State VA B 3/16
Comment:

key case


Chapter: 8.4

Case Name: Haugh v. Schroder Investment Management North Am. Inc., 02 Civ. 7955 (DLC), 2003 U.S. Dist. LEXIS 14586 (S.D.N.Y. Aug. 25, 2003)
(holding that a public relations consultant could not claim privilege protection for her documents but could claim work product protection; "This motion concerns the involvement of Laura J. Murray ('Murray'), a public relations consultant who is also a lawyer licensed to practice in the state of Texas. Plaintiff's former counsel, Arkin Kaplan LLC ('Arkin'), retained Murray in September 2002, and sent Murray a formal retention letter on October 3, 2002. The retention letter states that Murray will 'provide us advice to assist us in providing legal services to Ms. Haugh.' The letter provided that Murray would look only to Haugh for payment. It included the following statement regarding confidentiality: 'You further understand that our communications with you are confidential and privileged.'"; "Plaintiff has not shown that Murray performed anything other than standard public relations services for Haugh, and more importantly, she has not shown that her communications with Murray or Murray's with Arkin were necessary so that Arkin could provide Haugh with legal advice. The conclusory descriptions of Murray's role supplied by plaintiff fail to bring the sixteen documents within the ambit of the attorney-client privilege. The documents transmitted from plaintiff to Murray and one document from Murray to Arkin are consistent with the design of the public relations campaign. Plaintiff has not shown that Murray was 'performing functions materially different from those that any ordinary public relations' advisor would perform. Calvin Klein Trademark Trust v. Wachner et al., 198 F.R.D. 53, 55 (S.D.N.Y. 2000). As such, Haugh's transmission of documents to Murray, even simultaneously with disclosure to former counsel, and Murray's transmission of a meeting agenda to Arkin, vitiates the application of the attorney-client privilege to these documents.")

Case Date Jurisidction State Cite Checked
2003-08-25 Federal NY

Chapter: 8.4

Case Name: Bradford v. Goodwin, 56 Va. Cir. 370 (Vir. Cir. Ct. 2001)
(assessing plaintiffs’ motion to compel discovery of communications between the defendant’s lawyer and the defendant’s real estate agent; noting that the privilege can cover communication between the clients and agents of the lawyer, "'when such agent’s services are indispensable to the attorney’s effective representation of the client'"(citation omitted); explaining that "[i]f a communication would have been privileged had it been made directly between an attorney and his client, it would be equally privileged when it is made through the client’s agent or employee"; deferring a ruling until further factual development)

Case Date Jurisidction State Cite Checked
2001-01-01 State VA nsvb 2/23/04
Comment:

key case


Chapter: 8.5

Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kansas June 13, 2017)
("As a general rule, the presence of third parties breaches the confidentiality of communications between an attorney and client and waives the privilege. However, '[t]he presence of a third-party, such as a consultant, does not destroy the attorney-client privilege where that party is the client's agent or possesses 'a commonality of interest with the client.' 'The presence of a third party in an e-mail transmission, for instance, will not destroy the attorney-client privilege if the third party is the attorney's or client's agent. . . .' Syngenta has presented Nadel's declaration stating that Syngenta engaged the VHB and URI employees as consultants 'to provide . . . scientific assistance sought by Syngenta's legal department regarding regulatory requirements.' The court has no reason to question this representation. The court finds Syngenta met its burden of demonstrating these particular third parties are Syngenta's agents for purposes of this litigation, and their presence on the e-mail communication did not destroy the attorney-client privilege applicable to PRIV003553.")

Case Date Jurisidction State Cite Checked
2017-06-13 Federal KS

Chapter: 8.5

Case Name: Audi of Am., Inc. v. Bronsberg & Hughes Pontiac, Inc., Civ. No. 3:16-CV-2470, 2017 U.S. Dist. LEXIS 87740 (M.D. Pa. June 8, 2017)
(finding that a broker was inside privilege protection; "Wyoming Valley has asserted that six other documents that were shared between its counsel and its broker, the Tim Lamb Group, which was engaged to advise the dealership with respect to the Purchase Agreement, may be withheld pursuant to the attorney-client privilege. Because the Court finds that the attorney-client privilege extends to such correspondence, Wyoming Valley's assertion of the privilege will be sustained, and Audi's efforts to compel production of these six documents will be denied."; "[T]he nature of the communications that Wyoming Valley seeks to withhold from production make clear that they were not exchanged solely or even primarily in furtherance of negotiating a commercial transaction, but rather to develop a coordinated response to the threat of litigation from a party that had expressed specific concerns about the deal they had negotiated. As such, the Court is not troubled by finding that the common-interest privilege may shield these discrete pieces of communication between counsel from disclosure, as these documents related directly to the parties' shared legal interests, rather than to their divergent commercial interests. We also note that Audi is not unfairly prejudiced by the invocation of this privilege in this particular since the privilege that we find only extends to communications which took place after Audi created this common legal interest by alleging that this transaction violated the law and constituted a material breach of contract."; "In this case, Wyoming Valley represents that it has already produced communications involving Rob Lee [Broker] that arose in a non-privileged context, including those that involved Lee and Napleton. On the privilege log, however, Wyoming Valley has identified only six documents, which are email communications, involving Lee and Wyoming Valley's counsel. Each of these emails was generated in June 2016, at a time when Wyoming Valley's outside counsel was helping to facilitate negotiations of the Purchase Agreement. The content of the emails themselves makes clear that Lee should be deemed a privileged person who was engaged for purposes of assisting the client and its counsel specifically with respect to Wyoming Valley's negotiations of its interests under the Purchase Agreement. As such, these six pieces of correspondence are privileged, and Wyoming Valley will not be required to disclose them to Audi.")

Case Date Jurisidction State Cite Checked
2017-06-08 Federal PA

Chapter: 8.5

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that the United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is privileged."; "The subject of the document states: 'Margulis v. Hertz . . . ." This appears to be a communication by a necessary intermediary seeking information relating to the Hertz litigation. While a non-Hertz employee is involved (Mr. Slovak) he is acting as an agent in this context in the sense that he is acquiring and providing information to a Hertz employee to relay back to Hertz counsel on a legal issue in the case. Mr. Slovak's involvement is different from that of Ms. Weston's (see, e.g., Log Entry 684), because it appears that Mr. Slovak is capable of, and is, providing information to counsel that could not be provided by any other individual, rending him a necessary intermediary.")

Case Date Jurisidction State Cite Checked
2017-02-28 Federal NJ

Chapter: 8.5

Case Name: Huntington Chase Condominium Assoc. v. Mid-Century Ins. Co., No. 16 C 4877, 2017 U.S. Dist. LEXIS 14082 (N.D. Ill. Feb. 1, 2017)
(inexplicably finding that roofing contractor's principal was within the control group of a condo association; "Mr. Argento, as a non-employee agent, served as an advisor to plaintiff's top management. The consulting agreement between plaintiff and Mr. Argento, dated October 31, 2014, was signed by plaintiff's president and states in relevant part that plaintiff 'authorize[d] and retain[ed]' Mr. Argento to [d]etermine the availability of proceeds payable for construction services . . . arising from the damage at the Property'. . . . The agreement further authorizes its insurer to communicate with Mr. Argento 'on matters related to the damage to the Property and repair services.'"; "[I]t is clear from the entire agreement that plaintiff's top management would not normally have made a decision regarding the scope of available coverage or amount of repairs to be made without Mr. Argento's opinion or advice.")

Case Date Jurisidction State Cite Checked
2017-02-01 Federal IL

Chapter: 8.5

Case Name: Huntington Chase Condominium Assoc. v. Mid-Century Ins. Co., No. 16 C 4877, 2017 U.S. Dist. LEXIS 14082 (N.D. Ill. Feb. 1, 2017)
(inexplicably finding that roofing contractor's principal was within the control group of a condo association; "Mr. Argento is not an attorney or member of plaintiff's control group. Plaintiff responds that its relationship with Mr. Argento was formalized through a written consulting agreement that provided Mr. Argento acted as plaintiff's representative during communications with defendant and that Mr. Argento thus is within plaintiff's control group."; "Under the Consolidation Coal [Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103, 432 N.E.2d 250, 257, 59 Ill. Dec. 666 (Ill. 1982) (citation omitted)] analysis as adapted for non-employee agents, the Court finds Mr. Argento was part of plaintiff's control-group for purposes of the application of the attorney-client privilege to the discovery at issue.")

Case Date Jurisidction State Cite Checked
2017-02-01 Federal IL

Chapter: 8.5

Case Name: Valenzuela v. Union Pacific Railroad Co., No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640, at *20 (D. Ariz. Dec. 21, 2016)
February 15, 2017 (PRIVILEGE POINT)

"What Client Agents Deserve Privilege Protection?"

Nearly every court considers client agents outside privilege protection unless those agents are necessary for facilitating privileged communications between clients and their lawyers. Some courts occasionally take a broader view – but without starting a trend.

In In re Riddell Concussion Reduction Litigation, the court assessed privilege protection for defendant's communications with "a public relations firm that consults with clients on communication strategies." Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457, at *21 (D.N.J. Dec. 5, 2016). Most courts find such agents outside privilege protection, but the Riddell court held that "it is unquestionably the case that communications between and amongst Riddell and [the PR agency] for the purpose of securing legal advice are privileged." Id. at *14-15. A few weeks later, Valenzuela v. Union Pacific Railroad Co. held that a company's "right-of-way agent" deserved privilege protection under both Arizona and California law. No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640, at *20 (D. Ariz. Dec. 21, 2016). But between those two decisions, a New York court applied the majority rule – holding that the plaintiff's brother (who was also funding the plaintiff's litigation) was outside privilege protection, because the plaintiff "cannot show that [his brother/litigation funder] served to facilitate attorney-client communications or representation," or acted as an agent "whose services are necessary for the provision or receipt of legal services." Kagan v. Minkowitz, No. 500940/2016, 2016 N.Y. Misc. LEXIS 4577, at *6-7 (N.Y. Sup. Ct. Dec. 9, 2016).

Many corporate executives mistakenly believe that they can share privileged communications with corporate agent/consultants without waiving the privilege. A handful of cases now and then provides a tempting sign that courts are becoming more forgiving, but the majority continues to find nearly all such agent/consultants outside privilege protection.

Case Date Jurisidction State Cite Checked
2016-12-21 Federal AZ
Comment:

key case


Chapter: 8.5

Case Name: Valenzuela v. Union Pacific Railroad Co., No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640 (D. Ariz. Dec. 21, 2016)
(finding that a plaintiff's right-of-way agents were inside the privilege protection; "Plaintiffs contend that the privilege does not extend to both Union Pacific and Kinder Morgan, but do not dispute Defendants' assertion that they were sister corporations at the time of the communications, owned by a single corporate parent. Nor do Plaintiffs dispute that the attorneys involved were employed by the parent. Finally, Plaintiffs contend that Exhibit F was written by EMI, an unrelated third-party, but do not dispute that EMI was retained by Kinder Morgan's predecessor as its right-of-way agent. Both Arizona and California law include agents within the corporate attorney-client privilege. See A.R.S. § 12-2234(B) (corporate privilege includes agents); Nemirofsky v. Seok Ki Kim, 523 F. Supp. 2d 998, 1002 (N.D. Cal. 2007), as amended (Nov. 24, 2007) (privilege 'includes communications with the entity's agent, at least where the agent is acting within the scope of his agency.').")

Case Date Jurisidction State Cite Checked
2016-12-21 Federal AZ

Chapter: 8.5

Case Name: In re Riddell Concussion Reduction Litig., Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457 (D.N.J. Dec. 5, 2016)
(acknowledging that a public relations agent can be within privilege protection, but finding that the public relations consultant in this case was providing independent public relations advice in some of the withheld documents rather than assisting a lawyer in giving legal advice; also finding that some other consultants could be within privilege; "Cohn & Wolfe, Empire Green and Headrush Creative."; "These companies served as marketing agents or consultants for Riddell. . . . Their 21 documents reflect that Riddell consulted with the companies with regard to a documentary video and some literature. For the reasons already discussed the documents merely reflect business and commercial communications that are not privileged. However, a number of these documents reflect and discuss privileged attorney advice and communications.")

Case Date Jurisidction State Cite Checked
2016-12-05 Federal NJ

Chapter: 8.5

Case Name: In re Riddell Concussion Reduction Litigation, Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457, at *21 (D.N.J. Dec. 5, 2016)
February 15, 2017 (PRIVILEGE POINT)

"What Client Agents Deserve Privilege Protection?"

Nearly every court considers client agents outside privilege protection unless those agents are necessary for facilitating privileged communications between clients and their lawyers. Some courts occasionally take a broader view – but without starting a trend.

In In re Riddell Concussion Reduction Litigation, the court assessed privilege protection for defendant's communications with "a public relations firm that consults with clients on communication strategies." Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457, at *21 (D.N.J. Dec. 5, 2016). Most courts find such agents outside privilege protection, but the Riddell court held that "it is unquestionably the case that communications between and amongst Riddell and [the PR agency] for the purpose of securing legal advice are privileged." Id. at *14-15. A few weeks later, Valenzuela v. Union Pacific Railroad Co. held that a company's "right-of-way agent" deserved privilege protection under both Arizona and California law. No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640, at *20 (D. Ariz. Dec. 21, 2016). But between those two decisions, a New York court applied the majority rule – holding that the plaintiff's brother (who was also funding the plaintiff's litigation) was outside privilege protection, because the plaintiff "cannot show that [his brother/litigation funder] served to facilitate attorney-client communications or representation," or acted as an agent "whose services are necessary for the provision or receipt of legal services." Kagan v. Minkowitz, No. 500940/2016, 2016 N.Y. Misc. LEXIS 4577, at *6-7 (N.Y. Sup. Ct. Dec. 9, 2016).

Many corporate executives mistakenly believe that they can share privileged communications with corporate agent/consultants without waiving the privilege. A handful of cases now and then provides a tempting sign that courts are becoming more forgiving, but the majority continues to find nearly all such agent/consultants outside privilege protection.

Case Date Jurisidction State Cite Checked
2016-12-05 Federal NJ
Comment:

key case


Chapter: 8.5

Case Name: In re International Oil Trading Company, LLC, Case No. 15-21596-EPK, Ch. 7, 2016 Bankr. LEXIS 1856 (S.D. Fla. April 28, 2016)
("The Court believes the case law applying the broader approach to the 'agency exception' is more consistent with the purpose for the exception and thus better reasoned. The broader approach to the 'agency exception' is also in agreement with Florida law."; "In this case, Mr. Al-Saleh possesses a judgment against IOTC USA and is attempting to collect on that judgment. IOTC USA is an entity that has demonstrated an ability and willingness to resist Mr. Al-Saleh's collection efforts. In order to obtain counsel and collect the money he is owed, Mr. Al-Saleh secured outside funding from a lender. In order to determine whether to lend money to Mr. Al-Saleh, the litigation funder must assess the potential litigation, both at the outset and on an ongoing basis, using information provided by Mr. Al-Saleh and his counsel. With that information, the funder may advise Mr. Al-Saleh as to the cost of pursuing collection, the risks involved, and the best strategies to pursue in litigation. The thousands of pages of communications at issue in the Third Motion to Compel imply that the funder's involvement has significant value to Mr. Al-Saleh and is integral to his pursuit of legal advice."; "Communications with a litigation funder fall within the agency exception for the very reason that litigation funders exist -- because without litigation funders, parties owed money, or otherwise stymied by deep-pocketed judgment debtors, might have reduced or no ability to pursue their claims. Litigation funders may be essential to the provision of legal advice in such cases. . . . Mr. Al-Saleh has engaged Burford 'in furtherance of the rendition of legal services,' and the communication of otherwise privileged information to Burford did not result in waiver of the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2016-04-28 Federal FL
Comment:

key case


Chapter: 8.5

Case Name: Berens v. Berens, 785 S.E.2d 733, 735, 736, 737, 741 (N.C. Ct. App. 2016)
("This appeal presents the question of whether a party to litigation who engages her friend as an agent to participate in meetings with her attorney waives the protections of attorney-client communications and attorney work product for information arising from the meeting with her attorney and any work product created with the assistance of or shared with the agent as a result of those meetings. Based on our caselaw and the record here, the answer in this case is no."; "Ms. Adams, an attorney who is now on inactive status with the North Carolina State Bar, is a friend of Defendant's and asserted in an affidavit that she had been 'acting as a consultant/agent on behalf of [Defendant] and the Tom Bush Law Group, and acting in a supporting role for [Plaintiff].' Ms. Adams stated that her friendship with Defendant began prior to the current proceedings."; "Attached to her affidavit was a copy of the 'Confidentiality Agreements and Acknowledgement of Receipt of Privileged Information' (the 'confidentiality agreement') that Ms. Adams entered into with Defendant, identifying Ms. Adams as Defendant's agent, emphasizing that the privileged information she received would be used 'solely for the purpose[] of settling or litigating' the divorce proceedings, and affirming the expectation that Ms. Adams's presence and involvement were 'necessary for the protection of [Defendant's] interest' and the expectation that all communications would be 'protected by the attorney-client privilege.'"; "The trial court failed to conduct the essential analysis as to whether the affidavit, confidentiality agreement, and other evidence established an agency relationship. We are aware of no caselaw, nor has Plaintiff cited any authority, that being a client's 'good friend' and being a client's agent are mutually exclusive. Nor does our caselaw prohibit a non-practicing attorney from acting as an agent for purposes of assisting another person in communications with legal counsel. Our holding would be the same if Ms. Adams had been a friend trained as an accountant, a psychologist, or an appraiser who agreed to assist with the litigation without charge. Consequently, we must reverse the trial court's order concluding that the attorney-client privilege does not apply in this case.")

Case Date Jurisidction State Cite Checked
2016-04-19 Federal NC B 8/16

Chapter: 8.5

Case Name: In re Hugh Larkin, No. 01-15-00392-CV, 2016 Tex. App. LEXIS 2810 (Tex. App. March 17, 2016)
(finding that a landlord's grant of power of attorney to his daughter who was living in the father's condo meant that the daughter was inside privilege protection; "It is undisputed that Larkin owns the condominium that his daughter occupies. Larkin presented proof to the court that he had appointed his daughter as his attorney-in-fact to act on his behalf for 'in all capacity for all matters' for the condominium. Larkin further presented proof that his daughter, acting 'as attorney-in-fact for' Larkin, hired a law firm to handle the underlying dispute. She corresponded with the attorneys in the firm, and it is the correspondence between her and that firm that has become the subject of the discovery request at issue."; "Here, the power of attorney from Larkin to his daughter expressly gives his daughter the authority to act on his behalf 'in all capacity for all matters' for the condominium. We hold this necessarily includes the authority to retain legal counsel and to discuss legal matters with them. Larkin has not challenged his daughter's authority to retain counsel and communicate with them on his behalf. Instead, he has supported it."; "Larkin's daughter, then, fits within the definition of 'client's representative' in Rule 503. See TEX. R. EVID. 503(a)(2)(A) ('A 'client's representative' is . . . A person who has authority to obtain professional legal services for the client or to act for the client on the legal advice rendered.'). Because she is Larkin's representative, her communications with Larkin's attorneys are privileged.")

Case Date Jurisidction State Cite Checked
2016-03-17 Federal TX

Chapter: 8.5

Case Name: In re Queen's University at Kingston, 2015-145, 2016 U.S. App. LEXIS 4259 (Fed. Cir. App. March 7, 2016)
(holding that the attorney-client privilege covered non-lawyer patent agents' communications relating to patent prosecution, but not related to infringement opinions or communications about the sale or purchase of a patent; "Notably, application of the rules of privilege to communications between non-attorney patent agents and their clients must be carefully construed."; "Communications between non-attorney patent agents and their clients that are in furtherance of the performance of these tasks, or 'which are reasonably necessary and incident to the preparation and prosecution of patent applications or other proceeding before the Office involving a patent application or patent in which the practitioner is authorized to participate' receive the benefit of the patent-agent privilege."; "Communications that are not reasonably necessary and incident to the prosecution of patents before the Patent Office fall outside the scope of the patent-agent privilege. For instance, communications with a patent agent who is offering an opinion on the validity of another party's patent in contemplation of litigation or for the sale or purchase of a patent, or on infringement, are not 'reasonably necessary and incident to the preparation and prosecution of patent applications or other proceeding before the Office.'")

Case Date Jurisidction State Cite Checked
2016-03-07 Federal TX
Comment:

key case


Chapter: 8.5

Case Name: In re Queen's University at Kingston, 2015-145, 2016 U.S. App. LEXIS 4259 (Fed. Cir. App. March 7, 2016)
(holding that the attorney-client privilege covered nonlawyer patent agents' communications relating to patent prosecution, but not related to infringement opinions or communications about the sale or purchase of a patent; "To the extent Congress has authorized non-attorney patent agents to engage in the practice of law before the Patent Office, reason and experience compel us to recognize a patent-agent privilege that is coextensive with the rights granted to patent agents by Congress.")

Case Date Jurisidction State Cite Checked
2016-03-07 Federal TX

Chapter: 8.5

Case Name: In re Queen's University at Kingston, 2015-145, 2016 U.S. App. LEXIS 4259 (Fed. Cir. App. March 7, 2016)
(holding that the attorney-client privilege covered nonlawyer patent agents' communications relating to patent prosecution, but not related to infringement opinions or communications about the sale or purchase of a patent; "Samsung concedes that, where a patent agent communicates with counsel or receives communications between his client and counsel, the attorney-client privilege may protect those communications from discovery. . . . It contends, however, that, where counsel is not involved in the communications -- as Queen's University concedes is the case here -- we should neither expand the scope of the attorney-client privilege nor recognize an independent patent-agent privilege to protect such communications from discovery. For the reasons we explain, we find that the unique roles of patent agents, the congressional recognition of their authority to act, the Supreme Court's characterization of their activities as the practice of law, and the current realities of patent litigation counsel in favor of recognizing an independent patent-agent privilege.")

Case Date Jurisidction State Cite Checked
2016-03-07 Federal TX
Comment:

key case


Chapter: 8.5

Case Name: Fosbre v. Las Vegas Sands Corp., Case No. 2:10-cv-00765-APG-GWF c/w Case No. 2:10-cv-01210-APG-GWF, 2016 U.S. Dist. LEXIS 5422 (D. Nev. Jan. 14, 2016)
March 23, 2016 (PRIVILEGE POINT)

"How Far Does the "Functional Equivalent" Standard Extend?"

Many previous Privilege Points have addressed the corporate-friendly "functional equivalent" doctrine, under which non-employees who essentially act as employees are inside privilege protection. An equal number of Privilege Points have explained that disclosure even to friendly client consultant/agents normally waives privilege protection (although not work product protection). One might think that these two types of non-employees would be easy to distinguish, but some courts blur the line.

In Fosbre v. Las Vegas Sands Corp., Case No. 2:10-cv-00765-APG-GWF c/w Case No. 2:10-cv-01210-APG-GWF, 2016 U.S. Dist. LEXIS 5422 (D. Nev. Jan. 14, 2016), the court addressed Sands’ privilege claims for its communications with Goldman Sachs employees who helped it deal with the 2007-2008 financial crisis. After describing Goldman Sachs' relationship with Sands as "that of a financial advisor in developing its complex financial strategy," the court surprisingly found that "Goldman Sachs' personnel performing these duties were the functional equivalent of [Sands] employees." Id. At *19. The court required Sands to supplement its privilege log and demonstrate that the individual Goldman Sachs employees (among other things) "understood the communications were for purposes of obtaining legal advice and were intended to be confidential."Id. At *45.

Most courts would not go this far — instead finding that disclosing of privileged communications to Goldman Sachs employees waived privilege protection. But corporations and their lawyers should consider claiming that friendly third parties such as financial advisors are inside privilege protection under an expansive "functional equivalent" doctrine.

Case Date Jurisidction State Cite Checked
2016-01-14 Federal NV
Comment:

key case


Chapter: 8.5

Case Name: In re International Oil Trading Co. 548 B.R. 825 (Bankr. S.D. Fla. 2016)
June 22, 2016 (PRIVILEGE PONT)

"Court Takes a Liberal View of Privilege for Communications Between a Plaintiff and a Litigation Funder"

With litigants' increasing reliance on litigation funders, courts have had to wrestle with privilege and work product issues, including whether litigants and their litigation funders share a "common interest" allowing the former to avoid a waiver when disclosing privileged communications to the latter, and whether litigation funders can create protected work product.

In In re International Oil Trading Co. 548 B.R. 825 (Bankr. S.D. Fla. 2016), the court held that the plaintiff and its litigation funder Burford Capital shared a sufficiently common legal interest, so that the plaintiff did not waive its privilege protection by disclosing privileged communications to Burford. And the court even went beyond that — finding that Burford was a protected client agent assisting the company "'in furtherance of the rendition of legal services,'" and therefore within the privilege on that separate ground. Id. At 834 (citation omitted). The court also held that Burford could create protected work product, concluding that "[i]t does not matter that Burford's obvious purpose is to obtain a return on its investment, just as it does not matter that counsel's purpose typically is to earn a fee." Id. At 836.

Not all courts share this liberal attitude toward privilege and work product protection in the context of litigation funders, but the trend seems to be in that direction.

Case Date Jurisidction State Cite Checked
2016-01-01 Federal FL
Comment:

key case


Chapter: 8.5

Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("Turning now to the issue of waiver, we find that Besins did not waive the attorney-client privilege by disclosing the communication to third-party consultants, Wepierre and Besse."; "'According to Besins, at the time of this communication, Wepierre 'was a professor in the pharmacy school/division of the University of Paris-Sud and an expert in pharmacological toxicology' and '[a]t the request of Besins, in the mid-1990s, he worked on early testing of a testosterone gel formulation.' 'Jerome Besse was an employee of Galenix Innovations, a research laboratory with which Besins worked in developing various hormone based products including those involving testosterone.'")

Case Date Jurisidction State Cite Checked
2015-12-14 Federal PA

Chapter: 8.5

Case Name: Baylor v Mitchell Rubenstein & Assocates, P.C., Civ. A. No. 13-1995 (ABJ), 2015 U.S. Dist. LEXIS 124152 (D.D.C. Sept. 17, 2015)
(finding that a client's agent was within privilege protection, because the agent was a "forwarder" of claims for collection by a collection lawyer; "[P]laintiff here is not seeking communications between the creditor-client (Arrowood), and the collection agency (Sunrise); she is seeking communications between the attorney (defendant) and the collection agency (Sunrise), made on behalf of the creditor-client (Arrowood). The Magistrate Judge specifically found that when Sunrise hired defendant on Arrowood's behalf, it was not 'in a business capacity,' as the plaintiff's use of its in-house counsel was in E.I. du Pont [E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 718 A.2d 1129, 1138 (Md. 1998)]; it was for the specific purpose of obtaining legal advice and procuring legal services. . . . And in contrast to the collection agency in E.I. du Pont, defendant here is an attorney, is authorized to practice law, and is the one asserting the privilege over documents in its possession on its client's behalf. Thus, the Court finds that it was not clearly erroneous for the Magistrate Judge to determine, based on E.I. du Pont and other cases, that an attorney-client relationship existed in this case and that the communications between Sunrise and defendant were subject to the attorney-client privilege.").

Case Date Jurisidction State Cite Checked
2015-09-17 Federal DC

Chapter: 8.5

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

Chapter: 8.5

Case Name: Baylor v. Mitchell Rubenstein & Associates, P.C., Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. July 31, 2015)
("In her supplemental memorandum, plaintiff argues that Sunrise [a client agent retained "for the limited purpose of finding an attorney"] engaged in the unauthorized practice of law by interposing itself between Arrowood, the client, and defendant, the attorney. . . . Plaintiff then concludes that because Sunrise engaged in the unauthorized practice of law, there can be no attorney-client privilege between defendant and Sunrise or defendant and Arrowood. . . . The Court is not persuaded by this argument. Assuming without deciding that Sunrise engaged in the unauthorized practice of law, plaintiff fails to explain why such wrongdoing by Sunrise should serve to waive or eliminate Arrowood's attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-07-31 Federal DC

Chapter: 8.5

Case Name: Baylor v. Mitchell Rubenstein & Associates, P.C., Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. July 31, 2015)
("A key threshold inquiry for privilege purposes, then, is whether Sunrise acted as Arrowood's agent. If Sunrise was not Arrowood's agent, then defendant disclosed all the communications at issue to an unrelated third party. Further, the allegedly privileged materials demonstrate that Arrowood knew of defendant's communication with Sunrise. If Arrowood knowingly permitted its attorney to communicate with an unrelated third party, it would have thereby waived its privilege. . . . By contrast, if Sunrise was Arrowood's agent, then the communications between defendant and Sunrise would not be automatically disqualified from protection by the attorney-client privilege."; "The Court finds that, based on the record before it, Sunrise acted as Arrowood's agent for . . . Obtaining legal advice from defendant."; "[H]ere Arrowood hired Sunrise for the limited purpose of finding an attorney to help Arrowood collect plaintiff's debt.")

Case Date Jurisidction State Cite Checked
2015-07-31 Federal DC

Chapter: 8.5

Case Name: Spear v. Fenkell, Civ. A. No. 13-02391, 2015 U.S. Dist. LEXIS 79648 (E.D. Pa. June 19, 2015)
(holding that Deloitte was inside the privilege as a lawyer's consultant; "Fenkell argues that communications with Deloitte are not privileged. He is incorrect. Deloitte was hired by Ballard, Spahr, counsel for Alliance, to conduct an internal investigation into Mr. Fenkell's conduct. . . . The investigation required high level forensic accounting expertise. Deloitte supplied the need to Ballard, Spahr. . . . Deloitte acted as Ballard, Spahr's agent, and communications with Deloitte in connection with the investigation are protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-06-19 Federal PA

Chapter: 8.5

Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015)
("The attorney-client privilege can extend to communications between representatives of the client or between the client and a representative of the client, if the communication was made in confidence for the primary purpose of obtaining legal advice.")

Case Date Jurisidction State Cite Checked
2015-06-09 Federal CA

Chapter: 8.5

Case Name: In re Lululemon Athletica Inc. 220 Litig., Consol. C.A. No. 9039-VCP, 2015 Del. Ch. LEXIS 127 (Del. Ct. Chan. April 30, 2015)
(analyzing the Garner doctrine and a common interest doctrine in connection with a retailer's investigation into the sale of its stock by the company's founder and CEO; also finding that an executive of the CEO's family office was inside privilege protection; "Trading Plan, Swinton [Employee of CEO's family office] received notifications from Merrill Lynch every time there was a trade. Moreover, even though Merrill Lynch apparently had sole discretion to sell Wilson's lululemon stock under the Plan, Swinton, as one of the agents in charge of Wilson's Family Office, had responsibility over matters relating to Wilson's trading activity generally. In that respect, the subject matter of the WSJ Email Chain, Wilson's Trading Plan and whether the sales complied with it, generally falls within Swinton's area of responsibility. As Wilson's agent for the Trading Plan, Swinton received privileged advice regarding the Plan and the particular trades in question that appears to have been directed toward crafting a coordinated response to the Wall Street Journal inquiry. Thus, I conclude that inclusion of Swinton on the WSJ Email Chain did not waive privilege as to that document.")

Case Date Jurisidction State Cite Checked
2015-04-30 State DE

Chapter: 8.5

Case Name: Walnut Housing Associates 2003 L.P. v. MCAP Walnut Housing LLC, No. 653945/2013, 2015 N.Y. Misc. LEXIS 820 (N.Y. Sup. Ct. March 18, 2015)
(finding that two independent contractors were within the privilege protection; "[D]efendants contend that since Wertheimer's [Insurance coverage consultant] involvement was a necessary part of the legal advice, no waiver occurred.")

Case Date Jurisidction State Cite Checked
2015-03-18 State NY

Chapter: 8.5

Case Name: Smith v. Unilife Corp., Civ. A. No. 13-5101, 2015 U.S. Dist. LEXIS 18755 (E.D. Pa. Feb. 13, 2015)
(finding that the attorney-client privilege protected draft 10-K filings, and that the nonlawyer consultants were the functional equivalent of employees; "A trial judge is not in a good position to second-guess a corporate decision to rely on an independent consultant or an employee to accomplish a specific task and/or to make recommendations to the CEO or general counsel. A review of the documents demonstrated that the communications were with counsel and were made for the purpose of assisting the corporation in securing legal advice or making legal decisions.")

Case Date Jurisidction State Cite Checked
2015-02-13 Federal PA
Comment:

key case


Chapter: 8.5

Case Name: Sundance Energy Oklahoma, LLC v. Dan D. Drilling Corp., Case No. CIV-13-991-R, 2015 U.S. Dist. LEXIS 8462 (W.D. Okla. Jan. 26, 2015)
(holding that an insurance broker was inside the privilege as a client agent)

Case Date Jurisidction State Cite Checked
2015-01-26 Federal OK

Chapter: 8.5

Case Name: Baylor v. Mitchell Rubenstein & Associates, Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. 2015)
(holding that the privilege protected communications between a law firm and the client's agent who acted as "forwarder" lining up a law firm to help collect debts; "Defendant asserts the attorney-client privilege as to numerous communications between itself and Sunrise Credit Services, Inc. ('Sunrise'). Defendant asserts that this entity served as a 'forwarder' for Arrowood, meaning that Arrowood contacted Sunrise so that Sunrise would find and obtain the services of a local D.C. debt collector, namely, defendant. . . . Such 'forwarding' companies have become more popular in recent times to help creditors easily access a large network of collection agencies across the country. The record in this case does not reflect that Sunrise ever undertook direct collection actions against plaintiff such as sending a dunning letter or making collection calls. Thus, Sunrise's role appears limited to that of an intermediary between Arrowood and defendant. "A key threshold inquiry for privilege purposes, then, is whether Sunrise acted as Arrowood's agent. If Sunrise was not Arrowood’s agent, then defendant disclosed all the communication at issue to an unrelated third party. Further, the allegedly privileged materials demonstrate that Arrowood knew of defendant’s communication with Sunrise. If Arrowood knowingly permitted its attorney to communicate with an unrelated third party, it would have thereby waived its privilege. Sunrise was Arrowood's agent, then the communications between defendant and Sunrise would not be automatically disqualified from protection by the attorney-client privilege."; "The Court finds that, based on the record before it, Sunrise acted as Arrowood's agent for obtaining legal advice from defendant. . . . Arrowood hired Sunrise for the limited purpose of finding an attorney to help Arrowood collect plaintiff’s debt . . . ."; "Defendant communicated with Sunrise in order that Sunrise would communicate with Arrowood. Thus, although defendant’s communications passed through Sunrise to Arrowood, the presence of an intermediary does not destroy the confidential relationship between Arrowood and defendant.")

Case Date Jurisidction State Cite Checked
2015-01-01 Federal DC

Chapter: 8.5

Case Name: Kleen Prods. LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill. Nov. 12, 2014)
("'This is a communication between counsel, senior SSCC executives, and The Levin Group, L.P. ('Levin'), a third-party strategic and financial advisory firm that was retained by SSCC for assistance during prior bankruptcy proceedings. Since Levin was employed for purposes of assisting counsel with bankruptcy matters and the e-mail correspondence at issue appears to relate to the development of a model for SSCC's plan of reorganization, the Court finds that these communications are privileged.'")

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

Chapter: 8.5

Case Name: In re Grand Jury Subpoena Dated March 20, 2013, 13-Mc189 (Part I) 2014 U.S. Dis. LEXIS 91901, *22 n.2 (S.D.N.Y. July 2, 2014)
(analyzing privilege protection for a private investigator; holding 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; "Communications between attorney and client in the presence of an investigator will remain privileged even if the client retained the investigator.")

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

Chapter: 8.5

Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *11-12, *12 (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; "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."; "The Court finds the documents where Scott Snow was merely copied by either Debtor, Karen Myers, or their attorneys, and where the subject was discussing litigation plans to be not subject to attorney-client privilege. In these instances, the Court finds Scott Snow was not acting as agent to Debtor and Karen Myers and that the attorney-client privilege was waived because the communications were revealed to a third party. Similarly, communications between only Debtor and Scott Snow or Karen Myers and Scott Snow are not subject to attorney-client privilege because the attorneys were not included in the communications and, therefore, while Scott Snow may have been acting as their agent in those instances, without an attorney included in the communications, the privilege does not apply. Finally, in instances where Scott Snow, Debtor, or Karen Myers, communicated with third parties, those documents are not subject to attorney-client privilege.")

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

Chapter: 8.5

Case Name: Leone v. Owsley, Civ. A. No. 12-cv-02961-PAB-KMT, 2013 U.S. Dist. LEXIS 75432, at *10, *10-11 (D. Colo. May 29, 2013)
("Courts applying the rationale of the Upjohn [Upjohn v. United States, 449 U.S. 385 (1981)] and Bieter [In re Bieter, 16 F.3d 929 (8th Cir. 1994)] cases to third party communications with an attorney have held that confidential communications between a party's counsel and a non-testifying expert or consultant, hired in anticipation of litigation, are protected by the attorney-client privilege."; "Defendants are not entitled to communications between Plaintiff and his counsel and experts hired for the purposes of litigation.")

Case Date Jurisidction State Cite Checked
2013-05-29 Federal CO B 8/13

Chapter: 8.5

Case Name: Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at *42 (S.D. Ga. May 8, 2013)
July 17, 2013 (PRIVILEGE POINT)

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

One of the greatest threats to the attorney-client privilege's creation and preservation involves the role of agents assisting clients or their lawyers. If such agents fall outside privilege protection, the client's or lawyer's communications with the agent will not be protected; the agent's presence during otherwise privileged communications will abort the privilege; and disclosure of preexisting privileged communications to the agent will waive the privilege.

Courts frequently assess the privilege implications of a client agent's involvement in otherwise privileged communications. Some courts take a broad view of client agents who are considered inside privilege protection. In Adler v. Greenfield, 2013 IL App (1st) 121066, an Illinois state court held that JP Morgan was within privilege protection when it acted as an elderly woman's agent. The court explained that "JP Morgan acted as Muriel's agent in communicating with [her lawyer] about Muriel's estate plan." Id. ¶ 54. Interestingly, the court also held that "under agency principles, the death of the principle terminates the authority of the agent" – meaning that the privilege protection evaporated upon the client's death. Id. Most courts take a much more restrictive view of client agents who are within privilege protection. In Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at *42 (S.D. Ga. May 8, 2013), the court held that Paula Deen had waived her privilege protection by "include[ing] in the communications loop" three of her assistants. Deen argued that these various business consultants and public relations advisors "'are indistinguishable from my employees.'" Id. At *43 (internal citation omitted). The court rejected Deen's argument, holding that the privilege only covers third parties who are "'nearly indispensable'" in facilitating attorney-client communications. Id. At *46 (citation omitted). The court pointedly criticized Deen's affidavit, which "speaks only in general terms" – noting that "[n]othing approaching the 'nearly indispensable role' is described." Id. At *47 (citation omitted).

The narrow majority rule on privilege protection for client agents represents perhaps the most counterintuitive aspect of privilege law. Lawyers should warn their clients not to include such third parties in privileged communications or share privileged communications with them. Next week's Privilege Point will discuss lawyer agents.

Case Date Jurisidction State Cite Checked
2013-05-08 Federal GA
Comment:

key case


Chapter: 8.5

Case Name: VGFC Realty II, LLC v. D'Angelo, Index No. 28211/2011, 2013 NY Slip Op. 30359(U), at 4 (N.Y. Sup. Ct. Feb. 14, 2013)
(holding that an insurance company's third-party claims administrator is within the privilege; "The affidavit of QBE's [insurance company] Claims Program Manager establishes that QBE retained Rockville [QBE's third-party claims administrator and agent] in February 2007, as its third party claims administrator. Rockville was given the authority to manage claims on behalf of QBE, and to investigate, adjust and defend claims made on policies issued by QBE[.] Rockville, on behalf of its principal QBE, retained AGF &J on October 13, 2008, in order to advis[e] the insurer, and said law firm owes no duty of loyalty to VGFC. Rockville, acting as QBE's agent, and upon the advice of the insurer's counsel[,] issued the disclaimer letters to VGFC and A-Val.")

Case Date Jurisidction State Cite Checked
2013-02-14 State NY B 6/13

Chapter: 8.5

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: 8.5

Case Name: Adler v. Greenfield, 990 N.E.2d 1219, 1231-32, 1233 (Ill. App. Ct. 2013)
(holding JP Morgan was a representative of an individual in estate matters, and therefore within the privilege; but was outside the privilege after the individual died; "With regard to communications occurring prior to Muriel's death, we find that JP Morgan was acting as Muriel's agent."; "Thus, the record demonstrates that JP Morgan, and Cueno specifically, was acting as Muriel's agent during communications with Greenfield. Accordingly, communications between JP Morgan as Muriel's agent and Greenfield are privileged as though the communications were directly between Muriel and Greenfield."; "With regard to communications after Muriel's death on May 2, 2008, we find that the communications are not privileged. . . . [W]e agree that JP Morgan acted as Muriel's agent in communicating with Greenfield about Muriel's estate plan. However, under agency principles, the death of the principal terminates the authority of the agent. . . . Accordingly, even if JP Morgan was Muriel's agent during her lifetime, its agency ended at her death. At that point, JP Morgan was acting as trustee of Muriel's trust and communications with it would not be protected by Muriel's attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-01-01 State IL B 4/14

Chapter: 8.5

Case Name: Adler v. Greenfield, 2013 IL App (1st) 121066
July 17, 2013 (PRIVILEGE POINT)

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

One of the greatest threats to the attorney-client privilege's creation and preservation involves the role of agents assisting clients or their lawyers. If such agents fall outside privilege protection, the client's or lawyer's communications with the agent will not be protected; the agent's presence during otherwise privileged communications will abort the privilege; and disclosure of preexisting privileged communications to the agent will waive the privilege.

Courts frequently assess the privilege implications of a client agent's involvement in otherwise privileged communications. Some courts take a broad view of client agents who are considered inside privilege protection. In Adler v. Greenfield, 2013 IL App (1st) 121066, an Illinois state court held that JP Morgan was within privilege protection when it acted as an elderly woman's agent. The court explained that "JP Morgan acted as Muriel's agent in communicating with [her lawyer] about Muriel's estate plan." Id. ¶ 54. Interestingly, the court also held that "under agency principles, the death of the principle terminates the authority of the agent" – meaning that the privilege protection evaporated upon the client's death. Id. Most courts take a much more restrictive view of client agents who are within privilege protection. In Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at *42 (S.D. Ga. May 8, 2013), the court held that Paula Deen had waived her privilege protection by "include[ing] in the communications loop" three of her assistants. Deen argued that these various business consultants and public relations advisors "'are indistinguishable from my employees.'" Id. At *43 (internal citation omitted). The court rejected Deen's argument, holding that the privilege only covers third parties who are "'nearly indispensable'" in facilitating attorney-client communications. Id. At *46 (citation omitted). The court pointedly criticized Deen's affidavit, which "speaks only in general terms" – noting that "[n]othing approaching the 'nearly indispensable role' is described." Id. At *47 (citation omitted).

The narrow majority rule on privilege protection for client agents represents perhaps the most counterintuitive aspect of privilege law. Lawyers should warn their clients not to include such third parties in privileged communications or share privileged communications with them. Next week's Privilege Point will discuss lawyer agents.

Case Date Jurisidction State Cite Checked
2013-01-01 State IL
Comment:

key case


Chapter: 8.5

Case Name: Humphries v. Chicarelli, Case No. 1:10 cv 749, 2012 U.S. Dist. LEXIS 168038, at *13-14 (S.D. Ohio Nov. 27, 2012)
("[T]he members-elect were analogous to agents of the City of Carlisle and their presence does not defeat the attorney-client privilege. . . . However, permitting Green [Member-elect] to participate at the executive session hearing does not demonstrate the City Council's intention to make the executive session discussions a matter of public record.")

Case Date Jurisidction State Cite Checked
2012-11-27 Federal OH B 8/13

Chapter: 8.5

Case Name: IP Telesis Inc. v. Velocity Networks Inc., No. CV 11 09950 RGK (AJWx), slip op. at 3-4 (C.D. Cal. Nov. 5, 2012)
("Plaintiff argues Velocity waived attorney-client privilege when the underlying transactions were discussed with Lyle Maul, a third party who is not a director or an officer, at a board of directors meeting on October 25, 2011. However, Plaintiff's argument fails because the facts show that Maul was a corporate advisor, and not merely an outsider. Velocity did not carelessly disclose confidential information while Maul was present. Rather, Maul received privileged information during confidential meetings because Velocity's CEO trusted him as a business advisor. As an advisor, Maul attended multiple board meetings and was copied on emails addressed to the board by Wolfgang. He also participated in discussions with Velocity's CPAs and attorneys. The nature and extent of these discussions, and the absence of any formal objection to Maul's involvement with the Corporation, support that he was not an outsider. Therefore Maul's presence at the board meeting furthered Velocity's interests through his role as a business advisor. See Ins. Co. of N. Am. v. Super. Ct., 108 Cal. App. 3d 758, 771 (1980) (holding that attorney-client communications in the presence of an unpaid legal consultant remained privileged because the consultant was present to further the interest of the corporation). Thus, disclosure to Maul did not waive attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2012-11-05 Federal CA B 5/13

Chapter: 8.5

Case Name: Gama Aviation Inc. v. Sandton Capital Partners, L.P., 951 N.Y.S.2d 519, 520 (N.Y. App. Div. 2012)
("[T]he affidavit of Gama's principle shows that Ittihadieh was acting as Gama's agent and that Gama had a reasonable expectation that he would keep the communication confidential.")

Case Date Jurisidction State Cite Checked
2012-01-01 State NY B 9/13

Chapter: 8.5

Case Name: 3Com Corporation v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ct. Ch. May 31, 2010)
(applying Delaware rather than Massachusetts privilege law, and utlimately finding that the attorney-client privilege protected the client's communications with its investment banker Goldmman Sachs; "The case law is clear, however, that insofar as Goldman Sachs was involved in communications between 3Com and its attorneys involving legal matters, those communications are privileged. Goldman Sachs' precise role in a specific communication is not critical as long as it involved legal issues regarding the transaction and participation by 3Com's attorneys. Indeed, 3Com states that it has not asserted the privilege over communictions with Goldman Sachs that addressed purely financial or business matters.")

Case Date Jurisidction State Cite Checked
2010-05-31 State DE
Comment:

key case


Chapter: 8.5

Case Name: 3Com Corporation v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ct. Ch. May 31, 2010)
(applying Delaware rather than Massachusetts privilege law, and ultimately finding that the attorney-client privilege protected the client's communications with its investment banker Goldman Sachs; "Delaware law sanctions the privilege's application to attorney-client communications including an investment banker, especially within the context of a pending transaction. . . . Following Jedwab [Jedwab v. MGM Grand Hotels, Inc., 1986 Del. Ch. LEXIS 383, 1986 WL 3426, at *2 (Del. Ch. Mar. 20, 1986)], Delaware courts have applied the attorney-client privilege to protect communications disclosed to the client's financial advisor in the corporate transactional context.")

Case Date Jurisidction State Cite Checked
2010-05-31 State DE
Comment:

key case


Chapter: 8.6

Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kansas June 13, 2017)
("[T]his court has ruled that communications by third-party consultants 'working at the direction of' attorneys, may be protected by the attorney-client privilege if the communications are 'for the purpose of assisting [the] attorneys in rending legal advice.'"; "Plaintiffs argue Syngenta's privilege assertions are belied by documents showing Syngenta retained Informa to help Syngenta develop business strategy, not to provide legal advice. The court agrees. Although Nadel states in his declaration that the Informa analysis was for the purpose of formulating legal strategy, this assertion is unsupported by any documents in the record. The analysis itself contains no legal analysis. And Syngenta has submitted no documents indicating that anyone on Syngenta's legal team worked with Informa on the analysis."; "Syngenta has failed to satisfy its burden of proving the applicability of the attorney-client privilege to the Informa analysis. The fact that Syngenta's 'Market Insight' group, rather than legal group, appears to have sought and used the analysis suggests the analysis was commissioned and communicated primarily for business, rather than legal, purposes. The sentence in Sandlin's May 16, 2014 e-mail directing non-attorney employees to discuss distribution of the related documents with Nadel does not change the business nature of the documents. Even if the court were to find some legal purpose in the communication, the attorney-client privilege would not protect the document because the legal purpose would not predominate over the business purpose. Syngenta's privilege assertion over PRIV003591 is overruled, and Syngenta shall produce this document.")

Case Date Jurisidction State Cite Checked
2017-06-13 Federal KS

Chapter: 8.6

Case Name: Valley Force Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006-RLM-SLC, 2017 U.S. Dist. LEXIS 57370 (N.D. Ind. April 14, 2017)
(holding that the environmental consultant was outside privilege protection, but could create protected work product; "Hartford Iron claims that all of the withheld emails are protected by the attorney-client privilege, asserting that the emails were confidential communications, between its counsel and an agent hired by counsel, to aid counsel in providing legal advice to Hartford Iron. Valley Forge disagrees, contending that the primary purpose in retaining Keramida [Environmental contractor] and CH2M [Environmental contractor] was not to provide legal advice, but rather, to provide environmental remediation services -- that is, to design and construct a new stormwater control system."; "Here, although Dameron's [Plaintiff's counsel selected by plaintiff insurance company to represent Hartford Iron] firm initially retained Keramida and CH2M, 'retention or employment by the attorney alone is insufficient to bring the consultant within the scope of the attorney-client privilege.'"; "Keramida and CH2M -- like HydroTech and August Mack before them -- were hired to design, build, and install a stormwater remediation plan that would be acceptable to IDEM and the EPA. In doing so, they 'were not simply putting into usable form information obtained from the client.'. . . In fact, it is evident that the assistance rendered by Keramida and CH2M 'was based on factual and scientific evidence obtained through studies and observation of the physical condition of the [Hartford Iron] site, and not through client confidences.'"; "The provision of environmental consulting advice or services falls outside the attorney-client privilege, which is to be 'strictly confined within the narrowest possible limits.'"; "It is apparent that Dameron employed language at times in a deliberate effort to bring Keramida and CH2M within the privilege. . . . But labeling communications as 'privileged and confidential' or 'attorney-client work product' 'does not render the documents privileged when they contain no communication made or work done for the purpose of providing informed legal advice.'"; "In fact, at times, Dameron's role as defense counsel appeared to morph into that of an environmental consultant, most likely due to her extensive experience performing clean ups as an environmental consulting geologist prior to practicing law. . . . Ultimately, Dameron's initial retention of Keramida did not appear to be because she needed information translated into a useable form so that she could render legal advice; rather, Dameron quickly spotted problems with August Mack's stormwater collection system and urged Valley Forge and Hartford Iron to get a second opinion from another environmental contractor.")

Case Date Jurisidction State Cite Checked
2017-04-14 Federal IN

Chapter: 8.6

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; "The common interest doctrine applies where the individuals involved in a communication have common interests such that disclosures between them are reasonably necessary to accomplish the purposes for which they are consulting counsel."; "Behunin [Plaintiff] and Levick [Public relations agency]do not have a common interest "'in securing legal advice related to the same [shared] matter.'. . . There is no evidence, however, that Levick sought legal advice from Steiner or that there was an attorney-client relationship between Steiner and Levick. To the contrary, Behunin stated in his declaration that Steiner hired Levick on behalf of Behunin without knowing anything about the content of the website Levick was to create. Although Levick, as a paid consultant, may have wanted its public relations campaign to succeed, that is not the kind of common interest contemplated by sections 912 and 952.")

Case Date Jurisidction State Cite Checked
2017-03-14 Federal CA

Chapter: 8.6

Case Name: Bousamra v. Excela Health, No. 1637 WDA 2015, 2017 Pa. Super. LEXIS 166 (Pa. Super. Ct. March 13, 2017)
("[T]he presence of the third party, under the rationale of the courts, must be necessary or, at the very least, useful, for purposes of the lawyer's dissemination of legal advice. There is a fatal flaw in Exela's [Client] attempt to invoke the pertinent case law. Excela decidedly failed to establish the facts necessary for application of these cases. Other than a vague affidavit contradicted by deposition testimony, Excela produced no facts to establish that Ms. Foster [Outside lawyer] or Excela hired Jarrad ["Independent public relations firm"] to aid in rendering the legal advice, i.e., whether the doctors could be named."; "Mr. Fedele [General counsel] did not indicate that he consulted with Jarrard about the legal implications of using the doctors' names. Rather, he had sought that advice from outside counsel, as evidenced by his request for an opinion letter on the subject from Ms. Foster. During his deposition, Mr. Fedele stated that he did not recall have any dialogue 'with Jarrard, Cate, Phillips between the 25th of February to the 28th of [February] eliminating the question regarding the legal issues preventing publicly identifying the physicians[.]'. . . He did not recall having legal discussions with Jarrard about any other matter. . . . Jarrard was hired by Excela to handle the media event and was not consulted to aid in the legal discussion. Jarrard's presence was not necessary or even highly useful to the question of whether to publicly name the doctors."; "Excela's position, at its essence, is that it did not waive the privilege because the disclosure was made to 'an agent assisting the attorney in giving legal advice to the client.'. . . We disagree. Jarrard was not an agent of the attorney, Ms. Foster. Ms. Foster did not seek advice or help from Jarrard in rendering her legal opinion. Jarrard was a separate legal entity, a media consulting firm, hired by Excela. Excela simply fails to establish, by reference to deposition testimony of Ms. Cates, Ms. Foster, or of any other member of the Jarrard team that Jarrard was involved in the process of the Ms. Foster's tender of legal advice."; "We find it most significant that there was no proof of any communication between Ms. Foster and Jarrard on the subject matter so that Ms. Foster did not seek Jarrard's input, to any extent, in forming her legal opinion. Likewise, Excela did not ask Jarrard's team for any feedback or response to Ms. Foster's previously-formed legal opinion. Excela does not refer to any place in the record establishing that Jarrard was involved, as a member of a team, with either Excela or Ms. Foster in connection with outside counsel's legal judgment on the matter. Thus, Excela does not support its factual position that Jarrard was in some way a participant into the question of the legal advisability of naming the two doctors during the public announcement. Its reliance upon the case law in question is therefore misguided.")

Case Date Jurisidction State Cite Checked
2017-03-13 State PA

Chapter: 8.6

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
Comment:

key case


Chapter: 8.6

Case Name: Valenzuela v. Union Pacific Railroad Co., No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640, at *20 (D. Ariz. Dec. 21, 2016)
February 15, 2017 (PRIVILEGE POINT)

"What Client Agents Deserve Privilege Protection?"

Nearly every court considers client agents outside privilege protection unless those agents are necessary for facilitating privileged communications between clients and their lawyers. Some courts occasionally take a broader view – but without starting a trend.

In In re Riddell Concussion Reduction Litigation, the court assessed privilege protection for defendant's communications with "a public relations firm that consults with clients on communication strategies." Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457, at *21 (D.N.J. Dec. 5, 2016). Most courts find such agents outside privilege protection, but the Riddell court held that "it is unquestionably the case that communications between and amongst Riddell and [the PR agency] for the purpose of securing legal advice are privileged." Id. at *14-15. A few weeks later, Valenzuela v. Union Pacific Railroad Co. held that a company's "right-of-way agent" deserved privilege protection under both Arizona and California law. No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640, at *20 (D. Ariz. Dec. 21, 2016). But between those two decisions, a New York court applied the majority rule – holding that the plaintiff's brother (who was also funding the plaintiff's litigation) was outside privilege protection, because the plaintiff "cannot show that [his brother/litigation funder] served to facilitate attorney-client communications or representation," or acted as an agent "whose services are necessary for the provision or receipt of legal services." Kagan v. Minkowitz, No. 500940/2016, 2016 N.Y. Misc. LEXIS 4577, at *6-7 (N.Y. Sup. Ct. Dec. 9, 2016).

Many corporate executives mistakenly believe that they can share privileged communications with corporate agent/consultants without waiving the privilege. A handful of cases now and then provides a tempting sign that courts are becoming more forgiving, but the majority continues to find nearly all such agent/consultants outside privilege protection.

Case Date Jurisidction State Cite Checked
2016-12-21 Federal AZ
Comment:

key case


Chapter: 8.6

Case Name: In re Riddell Concussion Reduction Litigation, Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457, at *21 (D.N.J. Dec. 5, 2016)
February 15, 2017 (PRIVILEGE POINT)

"What Client Agents Deserve Privilege Protection?"

Nearly every court considers client agents outside privilege protection unless those agents are necessary for facilitating privileged communications between clients and their lawyers. Some courts occasionally take a broader view – but without starting a trend.

In In re Riddell Concussion Reduction Litigation, the court assessed privilege protection for defendant's communications with "a public relations firm that consults with clients on communication strategies." Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457, at *21 (D.N.J. Dec. 5, 2016). Most courts find such agents outside privilege protection, but the Riddell court held that "it is unquestionably the case that communications between and amongst Riddell and [the PR agency] for the purpose of securing legal advice are privileged." Id. at *14-15. A few weeks later, Valenzuela v. Union Pacific Railroad Co. held that a company's "right-of-way agent" deserved privilege protection under both Arizona and California law. No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640, at *20 (D. Ariz. Dec. 21, 2016). But between those two decisions, a New York court applied the majority rule – holding that the plaintiff's brother (who was also funding the plaintiff's litigation) was outside privilege protection, because the plaintiff "cannot show that [his brother/litigation funder] served to facilitate attorney-client communications or representation," or acted as an agent "whose services are necessary for the provision or receipt of legal services." Kagan v. Minkowitz, No. 500940/2016, 2016 N.Y. Misc. LEXIS 4577, at *6-7 (N.Y. Sup. Ct. Dec. 9, 2016).

Many corporate executives mistakenly believe that they can share privileged communications with corporate agent/consultants without waiving the privilege. A handful of cases now and then provides a tempting sign that courts are becoming more forgiving, but the majority continues to find nearly all such agent/consultants outside privilege protection.

Case Date Jurisidction State Cite Checked
2016-12-05 Federal NJ
Comment:

key case


Chapter: 8.6

Case Name: In re Riddell Concussion Reduction Litig., Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457 (D.N.J. Dec. 5, 2016)
(acknowledging that a public relations agent can be within privilege protection, but finding that the public relations consultant in this case was providing independent public relations advice in some of the withheld documents rather than assisting a lawyer in giving legal advice; "MSL is a public relations firm that consults with clients on communication strategies, Riddell claims 178 MSL documents are privileged. For the same reasons most of Riddell's sales employees' documents are not privileged, the same is true for MSL. Simply stated, even if an attorney was copied on a MSL email chain, the predominant purpose of MSL's documents was to provide business and communication advice, not legal advice. In fact, MSL acknowledged it was hired 'to assist in public relations effort.'. . . This is evident by the subject matter of MSL's documents which concern, inter alia, how to respond to media inquiries, updates on relevant media coverage, preparing for testimony before Congress, updates on Congressional developments and general governmental affairs issues. Indeed, MSL acknowledged it was tasked to recommend a comprehensive communications program and media relations strategy. . . . To the extent attorneys were copied on MSL's documents it was merely for information purposes or for general comments on P.R. strategy. For the most part the attorneys did not provide legal advice or input. If they did it is not apparent their input was a material consideration."; "All of the illustrative examples Riddell relies upon support the Court's conclusion that the purpose of MSL's documents relate to standard P.R. and messaging issues rather than legal advice, opinions or issues. The fact that Riddell, like all businesses, wants to portray itself in a helpful light is not worthy of attorney-client privilege protection, even if an attorney is copied on an email. A 'media campaign is not a litigation strategy' even if an attorney deems it advisable. . . . Further, a public relations campaign and media strategy to bolster a party's public image and reputation is also not privileged."; "This is not the first case, nor will it be the last, where lawyers claim communications with public relations consultants are privileged. The common theme in the cases that protects these communications is if the public relations consultants' communications are made in connection with ongoing or anticipated litigation and the advice is directed at supporting the client's litigation position, or the P.R. input is necessary for an attorney to provide legal advice. . . . Whether or not MSL is the 'functional equivalent' of Riddell's in-house P.R. department is not determinative here. If MSL simply provided ordinary public relations advice its communications are not privileged. . . . On the other hand, if MSL provided information needed by Riddell's attorneys to render legal advice its information is privileged. . . . At bottom, most of MSL's documents are not privileged because they reflect ordinary public relations services done for business purposes. The documents do not reflect or even mention that the services were needed for legal advice. 'If a communication would have been made even if legal advice were not explicitly sought, then it is difficult to say that the communication's primary purpose was to seek legal advice.'")

Case Date Jurisidction State Cite Checked
2016-12-05 Federal NJ

Chapter: 8.6

Case Name: In re Riddell Concussion Reduction Litig., Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457 (D.N.J. Dec. 5, 2016)
(acknowledging that a public relations agent can be within privilege protection, but finding that the public relations consultant in this case was providing independent public relations advice in some of the withheld documents rather than assisting a lawyer in giving legal advice; "[I]t is unquestionably the case that communications between and amongst Riddell and MSL [Public relations firm], et al., for the purpose of securing legal advice are privileged. It is clear, however, that not all communications with an attorney's agent are protected. To be protected communications with a third-party agent must be made in confidence for the purpose of obtaining legal advice from the lawyer. Id. If the communication would have been made in the normal course of business even if the attorney did not need the information to give legal advice, the communication is not privileged."; "Having reviewed the 62 documents at issue, the Court finds that most of the documents are not privileged. At bottom, most of the challenged documents address corporate 'messaging' concerns and not legal issues or advice. This accounts for why most of the documents were prepared by sales personnel and communications managers. Without summarizing each document, the documents generally concern non-legal business issues such as communications between and about high schools and colleges, comments on competitors' helmets and literature, responses to media inquiries, content of press releases, marketing slides, and content of marketing documents. These are all business and not legal topics.")

Case Date Jurisidction State Cite Checked
2016-12-05 Federal NJ

Chapter: 8.6

Case Name: Rao v. The Bd. of Trustees of the Univ. of Ill., No. 14-cv-0066, 2016 U.S. Dist. LEXIS 145298 (N.D. Ill. Oct. 20, 2016)
(holding that plaintiff's wife did not share a common interest with her husband, and was not within the privilege protection as her husband's agent, and had admitted that lawyer/children were not acting as her lawyer during the communications; inexplicably not addressing work product protection; "Plaintiff argues that Ms. Jasti's presence on communications between Plaintiff and his lawyers does not destroy the privilege because she 'has driven [Plaintiff] to all meetings with attorneys in this matter,' and 'has also been extremely helpful to counsel in communicating with Dr. Rao, locating and transmitting documents to his counsel, filling in factual gaps when Dr. Rao cannot recall a relevant incident, typing documents for Dr. Rao, providing information about the family's finances, conducting internet research on issues and parties in the case, among other things.". . . The Court does not believe that Plaintiff has carried his burden of proving that Ms. Jasti's role in this litigation is the type that preserves the privilege despite her third party status. This Court's review of the case law in the Seventh Circuit suggests that the privilege protects communications with third parties when the third party is an agent, employee, or outside expert retained for the purposes of litigation. . . . While the exception appears to be flexible, the Court has found no case law that would stretch the exception to reach Ms. Jasti's role in this case."; "The Court has found no case in this circuit where the privilege has extended to family members of parties who are primarily assisting with basic ministerial and administrative tasks, which appears to Ms. Jasti's role in this litigation. The Court accepts that Ms. Jasti was important to the litigation, but that alone is not enough to preserve the privilege. . . . While it is possible that Ms. Jasti was acting as an agent of the Plaintiff, neither the factual recitation nor the legal arguments in Plaintiff's brief present any such assertion. Nor has Plaintiff argued that Ms. Jasti acted as an interpreter or expert that was necessary for Plaintiff's counsel to provide adequate and meaningful legal advice. Given Plaintiff's burden to show that the privilege should apply, and the Seventh Circuit's admonition that the attorney-client privilege should be construed narrowly, the Court cannot find that Plaintiff's communications with his lawyer in the presence of Ms. Jasti were made 'in confidence.' As such, they are not protected by the attorney-client privilege. Ms. Jasti is ordered to produce the documents sought in the Defendants' third-party subpoena on or before October 24, 2016.")

Case Date Jurisidction State Cite Checked
2016-10-20 Federal IL
Comment:

key case


Chapter: 8.6

Case Name: Harrington v. Bergen County, A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727 (D.N.J. Sept. 13, 2016)
November 23, 2016 (PRIVILEGE POINT)

"Plaintiff's Live-In Boyfriend Was Outside Privilege Protection, But Inside Work Product Protection: Part I"

Nearly every court finds that the only client agents/consultants inside privilege protection are those necessary for the communications between the client and her lawyer. But the work product doctrine casts a wider protective net.

In Harrington v. Bergen County, A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727 (D.N.J. Sept. 13, 2016), a civil rights plaintiff suing her former employer claimed that her live-in boyfriend was inside privilege protection – so that his presence during her communications with her lawyer did not destroy the privilege. The court acknowledged that plaintiff had been involuntarily committed to a mental hospital at the pertinent time, and that her boyfriend "has provided meaningful assistance" to her. Id. at *11. But the court was "not convinced that disclosure to [her boyfriend] was necessary or essential for Plaintiff to obtain informed legal advice." Id. The court noted that the "Plaintiff offers no medical or other expert opinion" about her inability to communicate with her lawyer without her boyfriend present. Id. at *11-12. The court stripped away privilege protection from communications in her boyfriend's presence, or later shared with her boyfriend.

Most clients (both individual and corporate) do not appreciate the miniscule range for their agents/consultants to be within privilege protection. Next week's Privilege Point will address the court's work product analysis.

Case Date Jurisidction State Cite Checked
2016-09-13 Federal NJ
Comment:

key case


Chapter: 8.6

Case Name: Harrington v. Bergen County, A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727 (D.N.J. Sept. 13, 2016)
(finding that plaintiff's roommate's presence during plaintiff's communications with her lawyer prevented privilege protection; also inexplicably finding that the roommate could not prepare protected work product; "Plaintiff contends that 'Martin [Plaintiff's friend and colleague with whom she resided] helped [her] navigate the administrative process[]' such that 'the communications between, and among, each of' Plaintiff, Martin, and her attorney for the administrative proceeding, Michael J. Muller, are privileged because 'Martin's assistance was necessary and he was acting as a conduit between Muller and Plaintiff, [and] Plaintiff and Muller believed the communications would be subject to the attorney-client" and work product privileges. . . . Plaintiff accordingly seeks an order preventing Defendants from discovering communications and documents involving Martin because the attorney client and work product privileges apply here and have not been waived."; "[A]s to the attorney-client privilege, the Court is not convinced that disclosure to Martin was necessary or essential for Plaintiff to obtain informed legal advice and therefore concludes that the privilege did not attach. The Court credits Plaintiff's earnest desire for Martin's assistance on account of her state of mind. . . . The Court likewise does not doubt that Martin has provided meaningful assistance to Plaintiff in the administrative proceeding and generally in the time since the alleged events giving rise to this case. However, as Defendants point out . . . Plaintiff's claim of privilege is undermined by her varied interactions with Attorney Muller as well as the latter's ability to confer with her remotely. . . . And though she emphasizes her mental illness, Plaintiff offers no medical or other expert opinion addressing the particular circumstance presented -- i.e., her incapacitation and the apparent concomitant necessity of having a layperson assist her. Plaintiff similarly offers no evidence of failures to communicate or attempts to memorialize Martin's role.")

Case Date Jurisidction State Cite Checked
2016-09-13 Federal NJ

Chapter: 8.6

Case Name: Harrington v. Bergen County, A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727 (D.N.J. Sept. 13, 2016)
(finding that plaintiff's roommate's presence during plaintiff's communications with her lawyer prevented privilege protection; also inexplicably finding that the roommate could not prepare protected work product; "Plaintiff contends that 'Martin [Plaintiff's friend and colleague with whom she resided] helped [her] navigate the administrative process[]' such that 'the communications between, and among, each of' Plaintiff, Martin, and her attorney for the administrative proceeding, Michael J. Muller, are privileged because 'Martin's assistance was necessary and he was acting as a conduit between Muller and Plaintiff, [and] Plaintiff and Muller believed the communications would be subject to the attorney-client" and work product privileges. . . . Plaintiff accordingly seeks an order preventing Defendants from discovering communications and documents involving Martin because the attorney client and work product privileges apply here and have not been waived."; "[A]s to the attorney-client privilege, the Court is not convinced that disclosure to Martin was necessary or essential for Plaintiff to obtain informed legal advice and therefore concludes that the privilege did not attach. The Court credits Plaintiff's earnest desire for Martin's assistance on account of her state of mind. . . . The Court likewise does not doubt that Martin has provided meaningful assistance to Plaintiff in the administrative proceeding and generally in the time since the alleged events giving rise to this case. However, as Defendants point out . . . Plaintiff's claim of privilege is undermined by her varied interactions with Attorney Muller as well as the latter's ability to confer with her remotely. . . . And though she emphasizes her mental illness, Plaintiff offers no medical or other expert opinion addressing the particular circumstance presented -- i.e., her incapacitation and the apparent concomitant necessity of having a layperson assist her. Plaintiff similarly offers no evidence of failures to communicate or attempts to memorialize Martin's role.")

Case Date Jurisidction State Cite Checked
2016-09-13 Federal NJ

Chapter: 8.6

Case Name: Town of Georgetown v. David A. Bramble, Inc., Civ. No. 15-554-SLR, 2016 U.S. Dist. LEXIS 63248 (D. Del. May 13, 2016)
(finding that the privilege did not protect communications between company and independent contractor assisting the client as an engineer; "DBF is an independent contractor represented by separate counsel. DBF serves in the capacity of plaintiff's engineer, and was specifically hired to design and manage the project at issue."; "Plaintiff argues in support of its motion that the attorney-client privilege can extend to professional entities over whom the client does not have 'control and direction,' i.e., the privilege can protect communications between a client and a professional who is not an 'agent.' The court agrees. Unfortunately, however, the above proposition does not help plaintiff's cause. The case law cited by plaintiff involves third-party professionals hired specifically to prepare for litigation."; "In contrast to the cases just cited, DBF was not hired to prepare for litigation, but is literally a player in the litigation -- a fact witness at best, a party subject to the risk of liability at worst. Under similar circumstances, courts have declined to shield from discovery potentially relevant communications such as the ones sought instantly. . . . It is clear from the record that DBF was not hired specifically to assist counsel in connection with the above-captioned litigation but, instead, is an important witness to the facts underlying the litigation. The court declines to extend the scope of the attorney-client privilege to protect the requested communications between DBF and counsel for plaintiff.")

Case Date Jurisidction State Cite Checked
2016-05-13 Federal DE

Chapter: 8.6

Case Name: Guiffre v. Maxwell, No. 15 Civ. 7433 (RWS), 2016 U.S. Dist. LEXIS 58204 (S.D.N.Y. May 2, 2016)
June 29, 2016 (PRIVILEGE POINT)

"Are Public Relations Consultants Inside or Outside Privilege Protection?"

Companies frequently turn to outside public relations consultants to assist both in normal media relations and when confronting crises. For obvious reasons, these companies must consider the privilege implications of involving such consultants.

In Guiffre v. Maxwell, defamation defendant Maxwell withheld communications involving her lawyer and her "'media agent.'" No. 15 Civ. 7433 (RWS), 2016 U.S. Dist. LEXIS 58204 (S.D.N.Y. May 2, 2016) (internal citation omitted). U.S. District Judge Sweet found that the media agent's involvement in otherwise privileged communications between the defendant and her lawyer destroyed any privilege protection. As the court put it, the media agent's involvement "at best . . . establishes only that [the agent's] input and presence potentially added value to [the lawyer's] legal advice." Id. at *24. But defendant "has failed to positively establish that [the agent] was necessary to implementing [the lawyer's] legal advice." Id. at *23-24. The court likewise held that defendant had not proven that she "was incapable of understanding counsel's advice . . . without the intervention of a 'media agent,' or that [the agent] was translating information between [the lawyer] and Defendant in the literal or figurative sense." Id. at *24-25. Significantly, the communications found undeserving of privilege protection involved a British lawyer and (presumably) a British media agent — whom defendant hired to assist her "in connection with legal matters in England and Wales." Id. at *3.

The Southern District of New York has always taken an extremely narrow view of privilege protection for communications with client agents. Companies should remember that this hostile attitude might strip away possible privilege protection for communications outside New York, and even outside the United States. Fortunately, the more robust work product protection often protects litigation-related communications with public relations consultants.

Case Date Jurisidction State Cite Checked
2016-05-02 Federal NY B 6/16
Comment:

key case


Chapter: 8.6

Case Name: Guiffre v. Maxwell, 15 Civ. 7433 (RWS), 2016 U.S. Dist. LEXIS 58204 (S.D.N.Y. May 2, 2016)
(holding that a media agent was outside privilege protection New York law, which applied to communications with a public relations consultant in Britain; "[W]ithout an attorney-client communication to facilitate, it cannot be said that Gow's [Media Agent] presence and input was necessary to somehow clarify or improve comprehension of Defendant communications with counsel, as the standard requires. . . . As such, Defendant has not met her burden of demonstrating that the communications fall beneath the umbrella of attorney-client privilege and cannot be rehabilitated by the extension provided by the agency privilege."; "Defendant has sworn that all of her communications with Barden [Defendant's lawyer] were for the purpose of seeking legal advice. However, the content of the communications addresses matters not legal on their face (specifically, a press statement)."; "[T]he Court must consider the communications in their full context. . . . Alone, it would be difficult to deem communications that predominately address a press statement as legal advice. Nevertheless, Defendant's assertion that a press statement is a necessary precursor to litigation 'under the fair comment laws of the UK' changes the context. . . . Considering the legal necessity of a press statement, in the context of the legal issue for which Defendant sought Barden's advice, the communication with Barden is predominately for the purposes of providing legal services. Defendant has therefore met her burden if establishing Documents #1045-46 are privileged.")

Case Date Jurisidction State Cite Checked
2016-05-02 Federal NY

Chapter: 8.6

Case Name: Guiffre v. Maxwell, 15 Civ. 7433 (RWS), 2016 U.S. Dist. LEXIS 58204 (S.D.N.Y. May 2, 2016)
(holding that a media agent was outside privilege protection New York law, which applied to communications with a public relations consultant in Britain; "Defendant argues 'Gow [Media agent] is the agent for Ms. Maxwell [Defendant],' thus taking advantage of the principle that attorney-client privilege may apply to communications between an agent and the client's counsel. . . . The test dividing agency (and thus privilege protection) and lack thereof (and thus waiver) is the, necessity of the third-party in facilitating the confidential communications between counsel and client."; "It has not been alleged that Barden hired Gow. In fact, Defendant swears that she hired Gow and Barden simultaneously. . . . These facts are significant not as they relate to Gow's relationship to Defendant, but because they suggests that Gow's necessity in the provision of legal advice was not material to whether he was included in communications with Barden [Defendant's lawyer]."; "Defendant has failed to positively establish that Gow was necessary to implementing Barden's legal advice. Defendant repeatedly refers to Gow as an agent and references that Gow provided information to Barden at Defendant's requests 'so as to further Mr. Barden's ability to give appropriate legal advice.' Defendant, as cited above, relies on fair-comment law to prove Gow's necessity in the relationship with Barden. . . . However,' at best, this establishes only that Gow's input and presence potentially added value to Barden's legal advice. '[T]he necessity element Means more than just useful and convenient but requires the involvement be indispensable or serve some specialized purpose in facilitating attorney client communications."; "The structure of fair comment law may require counsel to engage in public relations matters by providing a comment to press, but it does not follow that counsel is unable to communicate with his client on that issue without a public relations specialist. Advice on the legal implications of issuing a statement or its content is not predicated on public relations implications. Likewise, it has not been established that the Defendant was incapable of understanding counsel's advice on that subject without the intervention of a 'media agent' or that Gow was translating information between Barden and Defendant in the literal or figurative sense. That Gow issued the statement drafted by Barden or signed a contract with Defendant speaks to his intimate involvement, but not to his necessity. '[W]here the third party's presence is merely useful but not necessary, the privilege is lost.'. . . Defendant has not met her burden to establish that Gow was necessary to facilitate the relationship with Barden, as the standard requires."; "[W]here Gow's necessity has not been established, Defendant cannot include the entire field of public relations matters into the realm of legal advice by virtue of a law that implicates press coverage."; "It has not been established that Gow's input on public relations matters was necessary for Barden to communicate with Defendant or provide legal advice, or that the primary purpose of these communications was the provision of legal advice.")

Case Date Jurisidction State Cite Checked
2016-05-02 Federal NY
Comment:

key case


Chapter: 8.6

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"; "The Town Defendants concde [sic] that it was the Town, rather than Mr. Holland or his firm, that actually signed the Memorandum of Understanding ('MOU') with West End in March 2015 in order 'to facilitate smooth payment of invoices from the Town directly to West End,' but state that it was counsel that actually hired West End to assist counsel.'")

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

Chapter: 8.6

Case Name: United Food and Commercial Workers Local 1776 v. Teikoku Pharma USA, Inc., Case No. 14-md-02521-WHO, 2015 U.S. Dist. LEXIS 151948 (N.D. Cal. Nov. 9, 2015)
(holding that a draft letter did not deserve privilege protection because they were primarily business-related, and that any privilege was waived when the company provided the draft letters to Deloitte; also rejecting work product protection for tax-related communications occurring after litigation ended; "Having reviewed the draft letters and considered the argument the parties made during the October 6, 2015 Case Management Conference, I find that the drafts were created primarily for accounting purposes and not in anticipation of litigation. The drafts were circulated between, and the edits made by, members of Endo's business team and Endo's outside accountants at Deloitte in order to seek pre-clearance of Endo's accounting of the Watson settlement. In these circumstances -- where Deloitte was engaged to provide business accounting services, not to assist counsel with specific legal matters -- the attorney-client privilege cannot be invoked.")

Case Date Jurisidction State Cite Checked
2015-11-09 Federal CA

Chapter: 8.6

Case Name: Heinzl v. Cracker Barrel Old Country Store, Inc., Civ. A. No. 2:14-cv-1455, 2015 U.S. Dist. LEXIS 146825 (W.D. Pa. Oct. 29, 2015)
(in connection with a Rule 30(b)(6) deposition; holding that a third party consultant's ADA report did not deserve privilege or work product protection; rejecting an affidavit by a Cracker Barrel lawyer supporting such protections; "For instance, Mr. Dorsey [Cracker Barrel's witness] testified at the Rule 30(b)(6) deposition that Robert Buck, a third-party consultant hired by Defendant, surveyed about a dozen Cracker Barrel stores for ADA compliance issues. Mr. Dorsey explained that Mr. Buck provided the inspection reports to Mr. Dorsey, Defendant's Senior Director of Construction Facility Services, and Jeff Smith, Mr. Dorsey's predecessor. . . . Plaintiff notes that Mr. Dorsey did not testify that Defendant's counsel received Mr. Buck's reports."; "Plaintiff notes that Mr. Dorsey's testimony also reveals that Defendant largely relied on the surveys to provide financial guidance for undertaking remediation projects and to monitor store conditions. . . . In other words, the surveys helped facilitate business decisions, not legal decisions. Plaintiff argues that the surveys cannot be considered communications for purposes of obtaining legal advice and that the attorney-client privilege does not apply.")

Case Date Jurisidction State Cite Checked
2015-10-29 Federal PA

Chapter: 8.6

Case Name: Heinzl v. Cracker Barrel Old Country Store, Inc., Civ. A. No. 2:14-cv-1455, 2015 U.S. Dist. LEXIS 146825 (W.D. Pa. Oct. 29, 2015)
(in connection with a Rule 30(b)(6) deposition; holding that a third party consultant's ADA report did not deserve privilege or work product protection; rejecting an affidavit by a Cracker Barrel lawyer supporting such protections; "Wilson [Cracker Barrel's Associate General Counsel responsible for ADA Compliance] explains that several of the documents are contracts for services between Cracker Barrel and engineering firms (the Buck Group, QPM and D&E) and that the reports, evaluations and other documents listed on the Privilege Log were all prepared pursuant to those contracts in order to assist her in her capacity as Cracker Barrel's in-house legal counsel; that the experts were engaged in anticipation of litigation such as the instant case when, in 2011, Wilson and other Cracker Barrel representatives concluded that they needed expert evaluations to determine if any stores were vulnerable to accessibility litigation following the effective date of the 2010 ADA Standards for Accessible Design and associated governmental regulations."; "Mr. Dorsey confirmed that monitoring the compliance of parking lots with the ADA has been ongoing. . . . Mr. Dorsey testified that Defendant hired Mr. Buck, the third party consultant, 'sometime in 2012,' which was years before Plaintiff filed her Complaint against Defendant."; "Additionally, even if Defendant investigated issues that could involve litigation in the future, courts have held that such investigations do not warrant protection under the work product doctrine because they were done in the ordinary course of business."; "Defendant has not demonstrated that the documents at issue constitute attorney work-product, as opposed to ordinary business documents created during routine renovations at facilities or when certain stores received complaints from customers. Ms. Wilson's statement that she 'subjectively believed that litigation was a real possibility when the 2010 ADA Guidelines went into effect' is at odds with Mr. Dorsey's testimony that the documents were created during the normal course of business, without any involvement of counsel and contemporaneous documents discussing the project which do not reflect the involvement of counsel. Defendant's argument should be rejected and Plaintiff's motion to compel these documents should be granted.")

Case Date Jurisidction State Cite Checked
2015-10-29 Federal PA
Comment:

key case


Chapter: 8.6

Case Name: Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015)
December 2, 2015 (PRIVILEGE POINT)

"Decision Highlights a Key Difference Between Attorney-Client Privilege and Work Product Doctrine Protection"

The attorney-client privilege provides absolute but fragile protection. In contrast, work product doctrine protection can be overcome — but offers more robust safety than the privilege. This distinction affects the impact of third parties' participation, and disclosure of protected communications or documents to third parties.

In Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015), the court dealt with plaintiff's communications with his lawyer — in the plaintiff's father-in-law's presence. The court found that the father-in-law's participation rendered the privilege unavailable — holding that the father-in-law "was not necessary to Plaintiff's communications with his counsel and [therefore] does not fall within the privilege." Id. at *6. In addressing the work product doctrine, the court applied the universal rule that "unlike the more sensitive attorney-client privilege, waiver of work product protection does not occur simply because a document is shared with a third person." Id. At *10. Because the father-in-law's "interests are aligned with Plaintiff's," disclosing work product to the father-in-law did not waive that separate protection. Id. At *11. In fact, the court concluded that the plaintiff's father-in-law could himself prepare protected work product under Fed. R. Civ. P. Rule 26(b)(3)(A) — which can cover documents prepared in anticipation of litigation "for" a party (such as the plaintiff). Id. At *7.

The attorney-client privilege and the work product doctrine apply in dramatically different ways in the context of friendly third parties — who are generally outside privilege protection but inside work product protection, and who, even themselves, can create protected work product. Corporate lawyers should remember these rules when considering their corporate clients' friendly third parties such as accountants, consultants, or other agents.

Case Date Jurisidction State Cite Checked
2015-09-29 Federal AZ
Comment:

key case


Chapter: 8.6

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: 8.6

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; "Plaintiff (and not its attorneys) retained AGC [Non-party environmental engineering firm hired by plaintiff to conduct an environmental cleanup] years before this litigation was commenced. . . . Plaintiff also claims that AGC was retained as a consulting expert to identify those other entities responsible for the cleanup costs . . . In anticipation of litigation against the EPA and/or third parties."; "Here, plaintiff in parallel retained both AGC, to guide it through the cleanup and to identify possible responsible parties and defenses for plaintiff and attorneys, and its attorneys to provide its legal defense and advocate for its claims. AGC is preparing the materials for plaintiff, at the behest of counsel (according to the privilege log entries). . . . Plaintiff claims that it is undisputed that these documents were created in anticipation of litigation (defending plaintiff against the EPA as well as identifying possible claims against other parties) and thus are work product . . . . These documents appear to be the raw materials used to create the PowerPoint presentation made to the EPA and eventually produced to defendants in this action.")

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

Chapter: 8.6

Case Name: Pemberton v. Republic Services, Inc., Case No. 4:14-cv-01421 AGF, 2015 U.S. Dist. LEXIS 81063 (E.D. Mo. June 23, 2015)
(holding that a public relations consultant was outside privilege protection but inside work product protection; "There is some precedent under the federal common law for expanding the privilege to include communications between a party and a public relations consultant. . . . But Defendant has not directed the Court's attention to any Missouri cases addressing expansion of the privilege to communications with public relations consultants, and the Court has found no such cases. Furthermore, the Supreme Court has cautioned that evidentiary privileges should be narrowly construed and expansions cautiously extended."; "[I]t does not appear that defense counsel was reliant on Pelopidas's expertise in order to give appropriate legal advice to Defendants."; "Furthermore, the Court's in camera inspection of the materials reveals that none of the documents actually involved communications directly between counsel and the client. The majority of the documents are internal communications among employees at Pelopidas, many of which reflect prior verbal communications between Pelopidas and counsel. Of the remainder of the materials at issue, most involved communications between Pelopidas and counsel, some of which were shared with Defendants, or were communications between Pelopidas and Defendants, with counsel copied on such. Simply put, the materials at issue were not communications between a client and its counsel made in confidence for the purpose of obtaining legal advice, and thus, are not protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-06-23 Federal MO

Chapter: 8.6

Case Name: Pemberton v. Republic Sers., Inc., 308 F.R.D. 195, 201-02, 202 (E.D. Mo. 2015)
(holding a public relations consultant was not inside privilege protection, but was inside work product protection; "Defendant has not directed the Court's attention to any Missouri cases addressing expansion of the privilege to communications with public relations consultants, and the Court has found no such cases."; "The materials at issue here were created because of the prospect of litigation, as discussed in more detail below, and the communications with Pelopidas ["non-party public relations company hired by Defendants' attorney"] may have helped counsel shape their legal strategy. However, it does not appear that defense counsel was reliant on Pelopidas's expertise in order to give appropriate advice to Defendants."; "Furthermore, the Court's in camera inspection of the materials reveals that none of the documents actually involved communications directly between counsel and the client. The majority of the documents are internal communications among employees at Pelopidas, many of which reflect prior verbal communications between Pelopidas and counsel. Of the remainder of the materials at issue, most involved communications between Pelopidas and counsel, some of which were shared with Defendants, or were communications between Pelopidas and Defendants, with counsel copied on such. Simply put, the materials at issue were not communications between a client and its counsel made in confidence for the purpose of obtaining legal advice, and thus, are not protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-06-23 Federal MO B 8/16
Comment:

key case


Chapter: 8.6

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: 8.6

Case Name: Fieldwood Energy, L.L.C. v. Diamond Svcs. Corp., Civ. A. No. 14-650 Section "E" (3), 2015 U.S. Dist. LEXIS 39385 (E.D. La. March 27, 2015)
(holding that the privilege did not protect transcribed witness statements of an interview conducted by an adjuster; also finding that the work product did not apply because litigation was not imminent; "Halverson is not an attorney; he is an adjuster. Accordingly, the statements do not reflect communications by a client to its lawyer or communications from the lawyer that would tend to disclose the client's confidential communications.")

Case Date Jurisidction State Cite Checked
2015-03-27 Federal LA

Chapter: 8.6

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: 8.6

Case Name: Cohen v. Cohen, 09 Civ. 10230 (LAP), 2015 U.S. Dist. LEXIS 21319 (S.D.N.Y. Jan. 30, 2015)
(in an action by a wife against her former husband for fraud in connection with assets, analyzing the wife's communications to and from a litigation funder; finding that the funder did not meet the Kovel doctrine; finding the agreement between the wife and the litigation funder not assure privilege protection; "Nor can Plaintiff rely on Ms. Napp's Consulting Agreements to create such a privilege where there is none. . . . Although the expectation of confidentiality and expressions of need reflected in those Agreements may be relevant to this Court's analysis, the core of the inquiry must focus on the actual substance of Ms. Napp's role in the attorney-client relationship. Viewed as a whole, there is nothing about Ms. Napp's advice or commentary that is critical to Plaintiff's ability to seek and receive legal advice from her counsel.")

Case Date Jurisidction State Cite Checked
2015-01-30 Federal NY

Chapter: 8.6

Case Name: Cohen v. Cohen, 09 Civ. 10230 (LAP), 2015 U.S. Dist. LEXIS 21319 (S.D.N.Y. Jan. 30, 2015)
(in an action by a wife against her former husband for fraud in connection with assets, analyzing the wife's communications to and from a litigation funder; finding that the funder did not meet the Kovel doctrine; "Because Ms. Napp [Funder] is neither necessary to facilitate Plaintiff's communications with counsel nor in possession of a legal claim against Defendants, her communications with Plaintiff are not privileged. With regard to her Kovel argument, Plaintiff has made no showing that Ms. Napp is 'indispensable or serve[s] some specialized purpose in facilitating the attorney client communications.'. . . Rather, her primary purpose appears initially to be making a decision as to whether her company will fund Plaintiff's legal team and thereafter reviewing and commenting on legal strategy presumably to maximize the chances of a return on her investment. These functions cannot be analogized to the interpreters or accounts of the Kovel line, who serve a specific function necessary to effectuate legal representation.")

Case Date Jurisidction State Cite Checked
2015-01-30 Federal NY

Chapter: 8.6

Case Name: Salser v. Dyncorp International, Inc., No 12-10960, 2014 U.S. Dist. LEXIS 172056 (E.D. Mich. Dec. 12, 2014)
(finding a non-party therapist cannot create protected work product; "'One short section of Mr. Cape's [Plaintiff's therapist] notes . . . Reflects a conversation between Ashley's attorney himself and Mr. Cape. This would not fall within the attorney-client privilege, since it does not involve communications between attorney and client. Moreover, Ashley would find no solace in the work-product doctrine, because 'the work product doctrine does not shield from discovery documents created by third parties.'")

Case Date Jurisidction State Cite Checked
2014-12-12 Federal MI

Chapter: 8.6

Case Name: Salser v. Dyncorp International, Inc., No 12-10960, 2014 U.S. Dist. LEXIS 172056 (E.D. Mich. Dec. 12, 2014)
(finding a non-party therapist cannot create protected work product; "Ashley's [Decedent's wife] disclosure of information to her therapist about her attorney and about her case constitutes a waiver of the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2014-12-12 Federal MI

Chapter: 8.6

Case Name: Lucas v. Gregg Appliances, Inc., Case No. 1:14-cv-70, 2014 U.S. Dist. LEXIS 168751 (S.D. Ohio Dec. 5, 2014)
(holding that a privilege did not protect a meeting attended by the plaintiff's father-in-law; "Plaintiff does not claim that Hoerst was necessary to facilitate the attorney-client relationship and the only explanation given at his deposition, but not in his brief, is that Hoerst attended to provide support."; "Plaintiff has not carried his burden of establishing that the privilege exists for communications with counsel made in the presence of Hoerst. . . . Instead, the privilege never attached to these communications.")

Case Date Jurisidction State Cite Checked
2014-12-05 Federal OH

Chapter: 8.6

Case Name: La Suisse, Societe D'Assurances Sur La Vie v. Kraus, 06 Civ. 4404 (CM) (GWG), 2014 U.S. Dist. LEXIS 166673 (S.D.N.Y. Dec. 1, 2014)
(analyzing a lawsuit in which an insurance holder sued Swiss Life, which in turn sued an insurance broker; analyzing communications between plaintiffs' former lawyer Mahon and the broker Kraus; noting that Mahon had not claimed work product protection; "The instant case is highly unusual in that there is no evidence that the plaintiffs in this matter ever manifested any intent to grant authority to Kraus to act as their agents for purposes of seeking legal advice. Mahon, who of course bears the burden of proof, has presented no testimony or affidavits from the plaintiffs themselves on this question. While Mahon presumably would have been the recipient of any expressions of intent from his clients, he too provides no testimony that any of the plaintiffs told him that they wished Kraus to act on their behalf. The affidavits of Kraus himself are similarly devoid of any such evidence.")

Case Date Jurisidction State Cite Checked
2014-12-01 Federal NY

Chapter: 8.6

Case Name: Edelstein v. Optimus Corp., 8:10CV61 (D. Neb. June 14, 2014)
(finding that an actuary was outside privilege protection; "SilverStone Group is the Plan's actuary, and has provided tax, accounting and actuarial services for the purpose of administering the Plan."; "To the extent that the communications contain any attorney's legal impressions or opinions, the privilege with respect to those statements was waived. The communications were divulged by the client, Don Kluthe, as President/CEO of Optimus, to a third party, namely, Von Reisen at SilverStone Group. The defendant has not shown that SilverStone has the sort of relationship with Optimus that would be the equivalent of an employer-employee relationship so as to entitle SilverStone to the protection of the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2014-06-14 Federal NE

Chapter: 8.6

Case Name: Robinson v. County of San Joaquin, No. 2:12-cv-2783 MCE GGH PS, 2014 U.S. Dist. LEXIS 69257 (E.D. Cal. May 20, 2014)
(analyzing privilege and work product protection for a consultant's report following an anonymous complaint about discrimination; "Here, the report was generated by an outside consultant, retained by the County, and submitted to County Counsel. There is no evidence that the consultant was County Counsel's 'client.'")

Case Date Jurisidction State Cite Checked
2014-05-20 Federal CA

Chapter: 8.6

Case Name: McNamme v. Clemens, No. 09 CV 1647 (SJ), 2013 U.S. Dist. LEXIS 179763, at *20 (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; "[F]or the vast majority of documents provided for in camera review, defendant has not shown that Householder or Hendricks performed anything other than standard public relations or agent services for Clemens, nor has he shown that his communications with either were necessary so that Rusty Hardin could provide Clemens with legal advice."; also finding the work product doctrine inapplicable)

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

Chapter: 8.6

Case Name: McNamee v. Clemens, No. 09 CV 1647-SJ, 2013 U.S. Dist. LEXIS 179736, at *2, *3-4, *17-18, *19-21, *25-26 (E.D.N.Y. Sept. 17, 2013)
(ordering defendant Roger Clemens to produce communications with a sports agent; "In this current motion, McNamee seeks an Order requiring the production of all communications with Clemens' public relations strategist, Joe Householder ('Householder'), and Householder's firm, Public Strategies, Inc. ('Public Strategies' or the 'PR Firm'), which have been withheld from production on grounds of attorney-client privilege and work product."; "McNamee also seeks to compel Clemens to produce all communications with Randal ('Randy') Hendricks . . . which have also been withheld from production on grounds of attorney-client privilege and work product. . . . According to plaintiff, defendant Clemens employed Hendricks Sports Management ('Hendricks'), which is run by Randy and Alan Hendricks, as his sports agents."; "The privilege may be expanded to those assisting a lawyer in representing a client, such as public relations consultants and agents. . . . However, it is not sufficient that communications with a PR Firm 'prove important to an attorney's legal advice to a client.' . . . Instead, the 'critical inquiry' is whether the communication with the person assisting the lawyer was made in confidence and for the purpose of obtaining legal advice."; "McNamee argues that communications with Householder and Hendricks are not protected by the attorney-client privilege, because such communications were not 'necessary so that counsel could provide Clemens with legal advice.' . . . In response, Clemens claims that Householder was an agent or employee of Rusty Hardin, and Householder's role 'was limited to the confidential assistance of defense counsel.' . . . Defendant likens Randy Hendricks to 'in-house counsel' for defendant Clemens, and claims that Hendricks was not acting as a sports agent to Clemens during the relevant time period. . . . However, for the vast majority of documents provided for in camera review, defendant has not shown that Householder or Hendricks performed anything other than standard public relations or agent services for Clemens, nor has he shown that his communications with either were necessary so that Rusty Hardin could provide Clemens with legal advice. . . . Instead, the Court's in camera review revealed that the majority of the communications with both Householder and Hendricks facilitated the development of a public relations campaign and media strategy primarily aimed at protecting Clemens' public image and reputation in the face of allegations that he used performance-enhancing drugs. This is decidedly different from the use of the public relations firm in In re Grand Jury Subpoenas [In re Grand Jury Subpoenas Dated Mar. 24, 2003, 265 F. Supp. 2d 321 (S.D.N.Y. 2003)], where the firm was hired by plaintiff's counsel with the specific aim of reducing public pressure on prosecutors and regulators to bring charges. 265 F. Supp. 2d at 323. The use of the PR firm was thus directly related to litigation strategy and consequently protected by attorney-client privilege. . . . No such showing has been made here."; "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.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-09-17 Federal NY