GC Forwards Outside Counsel’s Email to PR Consultant—Waives Privilege

In-House lawyers often assemble a team of specialists to handle knotty disputes that have the potential to spiral out of control.  The team almost certainly includes outside counsel, but also forensic investigators, accountants, other consulting experts, or public-relations professionals.

As the dispute evolves, email communications among this team increase.  And even where the emails involve in-house and outside counsel, the potential for privilege waiver also increases. In a long-running dispute involving the business of healthcare, a recent court decision illustrates the corporate attorney–client privilege’s fragility when a team’s lawyers share legal advice with the team’s non-lawyers. More…

Robert Cray, Coldplay, and Privilege Waiver

Think privilege law is boring?  Not when SDFLA Magistrate Judge Jonathan Goodman writes the privilege opinion.  In Reyes v. Collins & 74th, Inc., 2017 WL 2833450 (SD Fla. June 30, 2017), Judge Goodman incorporated lyrics from Coldplay and Blues singer-songwriter Robert Cray in finding that a company’s advice-of-counsel defense waived the privilege and ordering its lawyer’s deposition.  You may read the opinion here.

Consequences of a Strategic Decision

In this FLSA action for failure to pay overtime wages, the defendant company made the “strategic choice” to assert as a good-faith defense that it paid the plaintiff according to the legal advice rendered by its lawyer, Leslie Langbein.

But when plaintiff’s counsel asked the corporate representative to reveal that advice, the defense attorney—also Langbein—objected on privilege grounds.  You may read the deposition transcription, available here, to see the questions to which the lawyer objected.

The plaintiff then moved to compel answers from the corporate rep, but also to take Langbein’s deposition.  Judge Goodman found that Blues guitarist and singer Robert Cray best framed the company’s predicament in his song Consequences: “there’s consequences for what we do, consequences for me and you.”  It’s good to see the lyrics in writing, but even better to see Cray performing Consequences live—

The first consequence of the company’s advice-of-counsel defense was a privilege-wavier finding.  In short, the company cannot use the privilege as a sword—asserting the defense—and as a shield—preventing plaintiff from inquiring into that defense.


Another consequence of the company’s advice-of-counsel defense was that the court ordered that Langbein—the trial attorney who also provided the at-issue legal advice—sit for a deposition.  Judge Goodman also permitted the plaintiff to obtain “any letters, memoranda or notes, which Ms. Langbein provided to her clients about complying with the FLSA.”

Privilege Waiver Escape?

Judge Goodman offered the company an escape, and cited Coldplay’s lyrics from The Escapist to explain: “And in the end / we lie awake / And we dream / We’ll make an escape.” Listen to the entire song as you consider the judge’s escape proposal—

The company may escape its lawyer’s deposition and production of her legal-advice information by removing its advice-of-counsel defense.  The company will also have to agree that the statute-of-limitations is three years and that the plaintiff would be entitled to double damages if he prevails at trial.

So, the choice is to suffer Consequences or become The Escapist. See, privilege law can be fun.

No Work-Product Waiver for Party’s Disclosures to Litigation Financing Firm

The third-party litigation financing industry continues to grow, with Burford Capital’s December 2016 merger with Gerchen Keller Capital serving as the most recent indication.  Read Above the Law’s story on the merger here.

Of course, litigation-financing firms must evaluate a company’s legal claims before agreeing to finance potential litigation.  And this evaluation may include reviewing the company’s privileged communications and its lawyers’ work-product.  The question arises: does disclosure of work-product or privileged information to a third-party litigation financing firm waive these protections?  The court’s decision in Viamedia, Inc. v. Comcast Corp., 2017 WL 2834535 (June 30, 2017), available here, provides guidance. More…