Sharing Protected Information with Potential Litigation Funders Reply

Parties seeking financing to fund their litigation efforts must, of course, share information with the potential funder so that it can make an informed investment decision.  The attorney-client privilege or the work-product doctrine protects some of this information, such as a lawyer’s analysis of potential claims.

Parties adverse to the funded party now routinely seek this shared information in discovery, arguing that the party waived any privilege or work-product protections by sharing protected information with the litigation-financing company.  Many issues arise, such as the different waiver standards for the attorney-client privilege and the work-product doctrine, and whether the common-interest doctrine offers non-waiver protection.

In an article published in the Spring 2018 issue of Today’s General Counsel, I explore these issues.  You may read the article here.

Straight Outta Kentucky: Boilerplate Objections Waive Privilege

Remember R&B artist Prince Phillip Mitchell?  The Louisville native is a long-time singer-songwriter who reached his height of popularity in the 1970s.  He wrote and recorded several songs, including Star in the Ghetto, which appeared on his 1978 album Make it Good.

Fast forward ten years to 1988, when rap group N.W.A. released its debut album, Straight Outta Compton, produced in large part by Andre Romelle Young—known to us as Dr. Dre.  This album contained Dr. Dre’s rap tune, If It Ain’t Ruff.

Fast forward thirty years to 2018, where Mitchell claims in a Kentucky federal court that, in writing, producing, and publishing If It Ain’t Ruff, Dr. Dre “unlawfully and intentionally sampled the distinctive and important elements” from Star in the Ghetto, and therefore infringed on his copyright.  You may read the complaint here, and Insider Louisville’s story about the case here.

Let’s get to the privilege issue; after all, this is a privileges blog and not a 1970s R&B blog (through that would be more fun). More…

Privilege Issues Confronting the Trump–Cohen Special Master

As detailed in my post, Reports of the Privilege’s Death are Greatly Exaggerated, the SDNY rejected the U.S. Attorney’s request that its “taint team” conduct the initial privilege review of documents seized in the FBI’s raid on attorney Michael Cohen’s Trump Tower office.  The Court likewise rejected Cohen and President Trump’s request that their respective legal teams make the initial privilege calls.

Instead, the court, in this Order, appointed former magistrate judge Barbara S. Jones as Special Master to conduct the privilege review. Special Master Jones submitted her initial report to the Court on May 4, 2018, which you may read in full here.

To date, the USAO has produced to Cohen and Special Master Jones electronic contents of certain telephones and iPads as well as electronic copies of eight boxes of hard-copy documents. The USAO anticipates producing the final bulk of seized materials by May 11, 2018.  The privilege review is underway, and Cohen and Trump’s lawyers will provide their first privilege designations to the Special Master today, May 7, 2018.

So, what privilege issues are likely to arise requiring the Special Master’s privilege decision?  Here are a few.

Disclosure Protections

Let’s first identify the legal protections that Cohen and Trump may assert to preclude documents from federal prosecutors’ review.

Obviously, Cohen and Trump will assert protections afforded by the attorney–client privilege.  The privilege is quite narrow, as it only protects confidential communications between a client and her lawyer made for legal-advice purposes.  The privilege belongs to Cohen’s clients, not Cohen, although Cohen must assert the privilege unless his client(s) direct otherwise.

It is likely that the raid consumed communications between Cohen and his lawyers, including lawyers representing him in adult-film star Stephanie Clifford’s pending California case against Trump.  If so, Cohen owns that privilege and will certainly assert it.

A less-mentioned protection that may become operative is the work-product doctrine.  This doctrine generally protects documents evidencing an attorney or party’s opinions and mental impressions made when involved in or anticipating litigation.  Given that Cohen negotiated a non-disclosure agreement with Clifford, whether on his behalf or Trump’s, a plausible argument exists that Cohen and Trump anticipated some litigation involving her.  They will have to prove it, though.

Who are the Clients?

Special Master Jones must identify Cohen’s attorney–client relationships before analyzing the privilege elements.  Cohen disclosed that, from 2007 through January 2017, he “worked at the Trump Organization” serving in the role of “Executive Vice President and Special Counsel to Donald J. Trump.”  In this role, he “served as legal counsel to Trump Organization, Donald J. Trump.”  What do these vague statements mean from a client-identification perspective?  Special Master Jones will need to know.

In 2017–2018, Cohen also represented three other clients. He represented President Trump in the Clifford matter and Elliot Broidy, the former RNC Deputy Finance Chairman, in a non-disclosure arrangement with a former model. (New York Times story here).

And he may or may not have represented Fox News’ Sean Hannity.  Cohen says yes, but Hannity denies it.  Special Master Jones must determine whether Cohen and Hannity had an attorney–client relationship before deciding whether the privilege protects their communications from federal prosecutors’ review.

Legal Advice or Business Advice?

Cohen’s role with the Trump Organization will pose another set of privilege issues.  Special Master Jones will consider whether the privilege protects communications between Cohen and other Trump Organization employees.  The privilege only covers communications made so that the lawyer—purportedly Cohen—can render legal advice to his client (whoever that is).

The privilege will not protect Cohen’s communications involving business advice for the Trump Organization.  More…