Nearly every court considers client agents outside privilege protection unless those agents are necessary for facilitating privileged communications between clients and their lawyers. Some courts occasionally take a broader view – but without starting a trend.
In In re Riddell Concussion Reduction Litigation, the court assessed privilege protection for defendant’s communications with “a public relations firm that consults with clients on communication strategies.” Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457, at *21 (D.N.J. Dec. 5, 2016). Most courts find such agents outside privilege protection, but the Riddell court held that “it is unquestionably the case that communications between and amongst Riddell and [the PR agency] for the purpose of securing legal advice are privileged.” Id. at *14-15. A few weeks later, Valenzuela v. Union Pacific Railroad Co. held that a company’s “right-of-way agent” deserved privilege protection under both Arizona and California law. No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640, at *20 (D. Ariz. Dec. 21, 2016). But between those two decisions, a New York court applied the majority rule – holding that the plaintiff’s brother (who was also funding the plaintiff’s litigation) was outside privilege protection, because the plaintiff “cannot show that [his brother/litigation funder] served to facilitate attorney-client communications or representation,” or acted as an agent “whose services are necessary for the provision or receipt of legal services.” Kagan v. Minkowitz, No. 500940/2016, 2016 N.Y. Misc. LEXIS 4577, at *6-7 (N.Y. Sup. Ct. Dec. 9, 2016).
Many corporate executives mistakenly believe that they can share privileged communications with corporate agent/consultants without waiving the privilege. A handful of cases now and then provides a tempting sign that courts are becoming more forgiving, but the majority continues to find nearly all such agent/consultants outside privilege protection.