Companies dealing with the pandemic (and finding themselves in pandemic-triggered future litigation) may seek public relations consultants’ assistance. Companies and their lawyers should remember that most courts reject privilege protection for communications with such consultants, and work product protection for documents those consultants create.
In In re Pacific Fertility Center Litigation, Case No. 18-cv-01586-JSC, 2020 U.S. Dist. LEXIS 71127 (N.D. Cal. Apr. 22, 2020), the Fertility Center retained two public relations consultants after a horrifying incident in which a tank failure destroyed thousands of eggs and embryos. Plaintiffs sought the Center’s communications with its public relations consultants -- relying on an earlier California appellate decision holding that “the communications with the public relations consultant must be ‘more than just useful and convenient, but rather . . . the involvement of the third party [must] be nearly indispensable or serve some specialized purpose in facilitating attorney-client communications.’” Id. at *7. The Fertility Center court concluded that “the inclusion of the public relations consultants on the communications at-issue [sic] waived the attorney-client privilege.” Id. at *10. The court bluntly held that “[t]o the extent that a few of the documents may reflect the public relations firms consulting with counsel to develop a strategy regarding how to respond to media inquiries in light of the lawsuits, there is nothing about the communications which suggests the inclusion of the third party was necessary or essential” – because “the documents do not show that counsel needed the public relations firms’ assistance to accomplish the purpose for which Defendants hired the attorneys.” Id. at *8-9.
The court did not address the somewhat more promising work product protection argument. Most courts do not protect public relations consultants’ documents as work product -- because normally those are motivated by public relations concerns rather than litigation. But there is a sliver of good news. Most courts find that lawyers disclosing their pre-existing work product to such public relations consultants do not waive that robust protection.