Courts Continue to Catalogue Client Consultants Outside Privilege Protection

November 1, 2017

Clients’ agents/consultants are nearly always outside privilege protection. This generally means that their documents do not deserve privilege protection; their presence during otherwise privileged communications aborts that protection; and disclosing privileged communications to them waives the protection.

In JBGR LLC v. Chicago Title Insurance Co., No. 35140-11, 2017 N.Y. Misc. LEXIS 3008 (N.Y. Sup. Ct. Aug. 2, 2017) (unpublished opinion), the court held that the plaintiff’s land-use consultant’s presence at an otherwise privileged meeting destroyed the privilege. As the court explained, “while [the consultant’s] advice may have been important to the legal advice given to the plaintiffs by their lawyers, it was not given to facilitate such legal advice.” Id. at *8. Less than two weeks later, a federal court similarly held that the privilege did not protect a report prepared by a real estate appraiser “jointly engaged” by the client and its law firm Pierce Atwood. The court concluded that the appraiser “was not employed to assist Pierce Atwood in rendering legal advice.” Portland Pipe Line Corp. v. City of S. Portland, No. 2:15-cv-00054-JAW, 2017 U.S. Dist. LEXIS 135704, at *9, *17 (D. Me. Aug. 14, 2017)

Even sophisticated corporate clients often do not understand that their agents’/consultants’ involvement during privileged communications or as recipients of privileged communications usually destroys that protection. Clients sometimes erroneously think that confidentiality arrangements with such agents/consultants will avoid waiving privilege protection. That is incorrect – such agreements generally are irrelevant in analyzing privilege waiver issues.