Courts Examine Whether Client Agents are Inside or Outside Privilege Protection

August 4, 2010

Courts must frequently decide whether a client’s agent falls inside or outside attorney-client privilege protection. Some doctrines expand the protection, while others restrict it.

In one continuing (and promising) trend for companies, more courts are recognizing what is called the “functional equivalent” doctrine – treating as company employees independent contractors who act like company employees. In CoorsTek, Inc. v. Reiber, Civ. A. No. 08-cv-01133-KMT-CBS, 2010 U.S. Dist. LEXIS 42594, at *16 (D. Colo. Apr. 5, 2010), the District of Colorado applied this doctrine to employees of a company which assisted defendants in “help[ing] them finalize and write up their inventions in conjunction with their patent attorneys.” A little over a month later, the Southern District of West Virginia applied the same doctrine (without using its name) to an employee of a company which managed plaintiff, and “oversaw [its] operations, including sales of [its] . . . product.” Mt. Hawley Ins. Co. v. Felman Prod., Inc., Case No. 3:09-cv-00481, 2010 U.S. Dist. LEXIS 49083, at *22 (S.D. W. Va. May 18, 2010). On the other hand, some courts continue to take a very restrictive view of the privilege in connection with other client agents. In Kane v. Manufacturers Life Insurance Co., Civ. A. No. 08-4581 (KSH)(MAS), 2010 U.S. Dist. LEXIS 52525, at *14 (D.N.J. May 26, 2010) (not for publication), the court held that plaintiff’s son was outside the privilege, although plaintiff argued that his son “acted as Plaintiff’s agent when he communicated with Plaintiff’s current and former counsel.” The court specifically found that “Plaintiff has not demonstrated that [his son] was or is a ‘necessary’ agent.” Id. at *18.

Lawyers should try to follow the favorable and unfavorable trends in courts’ assessments of privilege protection for communications to and from client agents.