Public Relations Consultants Are Nearly Always Outside Privilege Protection

February 7, 2018

In an important data breach investigation case discussed in a previous Privilege Point, the court held that the privilege did not protect communications between Premera and its public relations firm, because “drafting press releases relating to a security breach is a business function,” and “[h]aving outside counsel hire a public relations firm is insufficient to cloak that business function with the attorney-client privilege.”  In re Premera Blue Cross Customer Data Sec. Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762, at *16 (D. Or. Oct. 27, 2017).

A few weeks later, another court reached the same conclusion about a public relations firm hired by famed lawyer Mark Geragos, who was representing the singer Kesha in high-profile litigation.  Gottwald v. Sebert, 63 N.Y.S.3d 818 (N.Y. Sup. Ct. 2017).  After reviewing communications between the public relations firm and Kesha’s lawyers, the court concluded that Geragos and the other lawyers disclosed privileged communications to the PR consultant “primarily for the purpose of advancing a public relations strategy – and not for the purpose of developing or furthering a legal strategy.”  Id. at 826.  Thus, “most of the legal advice discussed with [the public relations firm] lost the protection of the attorney-client privilege.”  Id.  The court inexplicably failed to address the availability of work product protection for some disclosed documents, which normally would survive disclosure to a friendly third party such as a public relations consultant.

Public relations firms often play a critical role in high-profile media-covered litigation.  While most courts would hold that disclosing work product to such consultants would not forfeit that protection, lawyers should remember that disclosing pre-litigation purely privileged communications normally will waive that more fragile protection.