Entirely Too Far—No Privilege between Company and its “Agent”

It often happens that a company obtains information critical to its claim or defense from an entity with which it has a close business relationship. The question arises whether the attorney–client privilege protects the communications. Sure, some courts extend the privilege to a client or lawyer’s agent in various, restrictive situations.

But when a Texas company claimed privilege over its non-lawyer communications with its sole-source supplier, the court rejected the privilege, ruling that the company took this agency principle “entirely too far.” LL’s Magnetic Clay, Inc. v. Safer Med. of Montana, Inc., 2018 WL 5733178 (W.D. Tex. Aug. 2, 2018). You may read the decision here.


LL’s Magnetic Clay, Inc. sued Safer Medical for federal false advertising and various related state-law claims. Safer Medical’s employee—either before or during the lawsuit (it’s unclear)—contacted Tainio Biologicals, it sole source of product ingredients, to gather “technical documents” and “confirm key technical facts.”

Magnetic Clay subpoenaed—and Tainio produced—documents that included communications between Safer and Tainio regarding the relevant, technical information. Safer Medical saw these documents, and immediately sent a claw-back letter, claiming the privilege protected the documents from discovery because Tainio, its sole-source supplier, was functioning as its agent “whose assistance [was] necessary to enable the client’s attorneys to provide legal advice.”

Law and Ruling

The court correctly cited the privilege’s foundational elements—confidential communications for legal-advice purposes—but then said this:  More…

Lawyer Held in Contempt for Refusing to Disclose Putatively Privileged Information

Claiming the attorney–client privilege protected information about her receipt of criminal evidence, a San Diego public defender refused to comply with a court order of disclosure.  The court held her in contempt and sentenced her to custody until she disclosed the information.  And the California Court of Appeals upheld this contempt finding.  Zimmerman v. Superior Court, 2013 WL 5533237 (Cal. Ct. App. Oct. 8, 2013).

The privilege issue in the matter, which was one of first impression, was whether the attorney–client privilege protects information supplied to the attorney by her client’s agent.  Attorney Zimmerman represented criminal defendant Goodwin in a murder charge.  Zimmerman received and turned over to the court an envelope containing various documents related to the murder victim.  The court, without objection, disclosed theVerdict information to the prosecutor who, in turn, attempted to discover further information about the documents, including who provided Zimmerman with the information.  Zimmerman refused to answer the prosecutor’s requests and, after a hearing, the trial court found her conduct contemptuous.  The court remanded her to custody until she decided to answer or until the proceedings concluded.

On appeal, the appellate court’s focus was whether the attorney–client privilege protects information coming to the attorney from the client’s agent.  After consideration of various authorities, the court held that the privilege protects information coming to the attorney from the client’s agent “as long as the agent is acting within the scope and authority of his agency.”  The court emphasized, however, that the party claiming the existence of the agency “has the burden to prove the existence and scope of the agency with actual facts.”

The court ruled that, in the agency situation, the person claiming the privilege must prove (1) the privilege covers the information and (2) the existence of an agency relationship.  The court was careful to note that it would not require Zimmerman to disclose privileged information to establish the basis of the privilege.

The court nevertheless found that Zimmerman failed to prove the existence of an agency relationship between her client and the person who delivered the evidence.  The court required this evidence in order to rule on the privilege, stating that, “in the criminal context, a defense attorney’s representation of agency is not the talisman that protects the circumstances under which the attorney received the evidence absent actual facts to establish agency.”

The appellate court remanded the case to the trial court for further proceedings.  You may read news accounts of the story at this link and access the court’s opinion here.