Parent Corp.’s GC Leads Investigation into Subsidiary’s Incident—Privileged?

A Connecticut trial court held that the attorney–client privilege covers a defendant company’s investigation-related documents created at the direction of an in-house lawyer.  The court rendered the decision even though the in-house lawyer worked for the company’s parent corporation rather than the defendant company itself.  Blake v. Harvest New England, LLC, 2017 WL 1334287 (Conn. Super. Ct. Mar. 17, 2017).  You may read the decision here.

Corporate Structure

Harvest New England, LLC, a Delaware entity with its principal place of business in Connecticut, is a wholly owned subsidiary of Harvest Power, Inc., a Delaware corporation with its principal place of business in Massachusetts.  Matthew Vittiglio, licensed in Massachusetts, was “Vice President, Corporate Counsel,” or General Counsel, for Harvest Power—not the subsidiary.

Post-Accident Investigation

Following an automobile accident in Connecticut involving a driver–employee of the Connecticut LLC, the Massachusetts corporation’s General Counsel, Vittiglio, directed an investigation that led to the creation of two primary documents that would later become the subject of a privilege dispute. More…

Court Rejects Privilege for Lawyer’s Discussions with Public-Relations Firm 1

The SDNY rejected a party’s claim that the attorney–client privilege and work-product doctrine protect its counsel’s communications with a public-relations firm retained to provide general Public Relationspublic-relations advice.  Bloomingburg Jewish Educ. Ctr. v. Village of Bloomingburg, 2016 WL 1069956 (SDNY Mar. 18, 2016).  The well-written opinion, which you may read here, provides lawyers with a good summary of privilege law in this niche area.

Communications with Public-Relations Firm

The plaintiffs sued the Village of Bloomingburg and Town of Mamakating claiming violation of various constitutional rights.  The Town Defendants’ counsel had retained West End Strategy, a public-relations firm, to facilitate “communications about the about the facts and nature of the case, and formulating the message by which municipal officials could accurately explain it to the public.”

When the plaintiffs moved to compel communications between Town Defendants’ counsel and West End, the Town Defendants claimed that the attorney–client privilege and work-product doctrine protect lawyers’ communications with public-relations firms.  The court found that the Town Defendants failed to meet their burden of proving the privilege elements, rejecting counsel’s “vague and highly generalized declaration” filed in support.  You may review this declaration here.

Attorney–Client Privilege

While the Town Defendants wholly failed to meet their burden, with the court labeling their position as “sweeping and rather brazen,” the court provided a nice summary of privilege law as it relates to public-relations firms.

Citing the Kovel doctrine, where the reputable Judge Friendly extended the privilege to cover discussions between a client’s lawyer and an accountant, the court found that the privilege may extend to non-lawyer service providers “when the purpose of the communication is to assist the attorney in rendering advice to the client.”

The privilege does not apply if the advice sought is that of the non-lawyer service provider; rather, the privilege applies only if the non-lawyer service provider is present to facilitate the lawyer’s legal advice.  The “touchstone inquiry,” therefore, is whether communications with public-relations firms were “made in confidence for the purpose of obtaining legal advice from the lawyer.”

The privilege will not apply if the public-relations firm provides “ordinary public relations advice.”  In other words, “a media campaign is not a litigation strategy.”

Work-Product Doctrine

The court also noted that public-relations advice generally falls outside of the work-product doctrine, “even if it bears on anticipated litigation.”  However, an attorney does not waive the doctrine’s protection by disclosing his work-product materials to a public-relations firm whom she hires and that maintains the material’s confidentiality.

Ruling

The Town Defendants in Bloomingburg simply failed to meet even the minimal standard to show that the attorney–client privilege and work-product doctrine covered their lawyers’ communications with West End Strategy.  It would have been a difficult hurdle in any event, as the Bloomingburg court highlighted how narrow the privilege and work-product doctrine are when lawyers communicate with public-relations firms.

Court Rejects Privilege for Chipotle Consultant’s Report to Outside Counsel 1

In a wage-and-hour case against Chipotle Mexican Grill, the USDC SDNY ruled that the attorney-client privilege did not protect a consultant’s report prepared for and delivered to Chipotle’s outside counsel.  In doing so, the court provided an instructive analysis of the Kovel doctrine.  Scott v. Chipotle Mexican Grill, Inc., 2015 WL 1424009 (SDNY Mar. 27, 2015).  You may read the Slide1decision here.

Counsel’s Retention of Consultant

Chipotle retained a law firm to assess whether the restaurant chain had properly classified its apprentices under the FLSA.  Chipotle, through the law firm, retained an HR consultant who conducted a “job function analysis” and provided its resulting report directly to the law firm.  Chipotle explained that the purpose of the consultant’s investigation was to gain an understanding of the apprentices day-to-day job and provide the law firm with this information so the firm could provide legal advice to Chipotle.

Plaintiffs’ counsel learned of the consultant’s report and moved to compel its production.  Chipotle, relying on the Kovel doctrine, argued that the attorney-client privilege protected the report from discovery.

The Kovel Doctrine

Arising from the court’s decision in United States v. Kovel, 296 F2d 918 (2d Cir. 1961), the Kovel doctrine extends the attorney-client privilege to experts, such as an accountant, that the attorney retains to assist her in understanding complex issues so that she can provide legal advice to the client.  The Kovel doctrine recognizes a “privilege derivative of the attorney-client privilege where a third party clarifies or facilitates communications between the attorney and client in confidence for the purpose of obtaining legal advice from the attorney.”

Under the Kovel doctrine, the privilege attaches to third-party reports made at the attorney’s or client’s request where the report’s purpose is to put complicated information received from the client into a form usable by the attorney.  In other words, the third-party takes a client’s complicated information and transforms it into a form that the attorney understands so that the attorney can render legal advice to the client.

Court’s Ruling

Applying Kovel, the court stated that Chipotle’s claim that its outside counsel needed an HR consultant to evaluate whether Chipotle properly classified its employees “strain[ed] credulity.”   Although the consultant drafted her report for and delivered it to Chipotle’s outside counsel, the court noted that “this formalism is insufficient to establish that it is a privileged communication.”

And the report did not state that the law firm retained her to assist in providing legal advice; nor did the consultant label the report “confidential” or “privileged.”  Moreover, the consultant set up interviews with Chipotle employees without mentioning that the interviews were privileged, confidential, or conducted to assist Chipotle in receiving legal advice.

The court found that Chiplotle failed to present evidence that the consultant was taking information that was incomprehensible to its attorneys and putting it into a “usable form.”  Rather, the consultant simply combined employee interviews and provided the attorney with a report of her factual analysis.

For these reasons, the court found that Chipotle failed to prove the consultant’s report fell under the Kovel doctrine and ordered its production.

PoP Analysis

The Kovel doctrine is a narrow exception to the rule that the attorney-client privilege does not protect communications from a non-client to the attorney.  The Scott decision should remind lawyers needing expert assistance to understand complicated factual issues to take certain steps to ensure the privilege applies.  Some practice tips include:

  • The attorney should retain the specialist;
  • Ensure the engagement letter expressly states that the specialist’s services are for the purpose of understanding the client’s information so the attorney can provide the client with legal advice;
  • The engagement letter should describe the reasons why the information the attorney needs from the specialist is complicated and in need of interpretation into a format the attorney can understand;
  • The specialist should receive and gather information in a confidential manner and take steps to ensure its continued confidentiality;
  • The specialist should inform any interviewees that the meetings are confidential and conducted so that the company’s attorney can render legal advice, and consider obtaining a written acknowledgement from the interviewee on these points; and
  • All communications between the specialist and the attorney should be confidential and labeled “Confidential & Privileged.”