One of the greatest risks to corporate clients’ privilege protection is their executives’ and even their lawyers’ misunderstanding about the availability of privilege protection for communications with public relations consultants. A remarkable number of cases address this scenario, and almost without exception courts reject privilege protection for communications with, or shared with, such consultants.

In Northwest Senior Housing Corp. v. Intercity Investment Properties, Inc. (In re Northwest Senior Housing Corp.), defendant unsuccessfully resisted discovery of its communications with its public relations consultant, contending that the public relations consultant “provided a need essential to [its law firm]’s legal representation.” Chap. 11 Case No. 22-30659, Adv. No. 21-03040, 2023 Bankr. LEXIS 1001, at *7 (Bankr. N.D. Tex. Apr. 13, 2023). In ordering the communications produced, the court restated the question (and answered in the negative): “whether [the law firm] needed [the public relations consultant] in order to render legal advice.” Id. Defendant predictably cited about the only case finding a public relations consultant inside privilege protection — a 2003 Southern District of New York case apparently involving Martha Stewart. In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321 (S.D.N.Y. 2003). As in nearly every case since then, the court found that opinion inapplicable.

Sophisticated corporate clients and their large law firms continue to get this wrong. There is some good news — disclosing pre-existing work product to a public relations consultant does not waive that more robust protection. But even that is tempered by more bad news — such public relations consultants rarely, if ever, can create their own work product-protected documents.

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.