Courts Wrestle with Privilege Protection for Client Consultants: Part I

March 21, 2018

The attorney-client privilege protects confidential communications between clients and their lawyers.  Corporate client consultants may also deserve this protection if they act as the “functional equivalent” of corporate employees.  Otherwise, most but not all courts take a very narrow view of privilege protection for communications to or from such consultants.

In Durling v. Papa John’s International, Inc., No. 16 Civ. 3592 (CS) (JCM), 2018 U.S. Dist. LEXIS 11584(S.D.N.Y. Jan. 24, 2018), Papa John’s relied on a third-party consultant to analyze how it should reimburse its delivery drivers.  Class action plaintiffs claiming minimum wage violations sought communications between Papa John’s and the consultant.  The court first rejected Papa John’s “functional equivalent” argument – noting that the consultant’s employees were “not so fully integrated into the [Papa John’s] hierarchy that its employees were de facto employees of [Papa John’s].” *15.  The court also found that the consultant was outside privilege protection, because its “role was not as a translator or interpreter of client communications,” and that Papa John’s retained the consultant “not to improve the comprehension of the communications between attorney and client, but rather to obtain information that [Papa John’s] did not already have.” Id. at *14.    One day later, another court in Narayanan v. Southern Global Holdings Inc., similarly found that a corporation’s “consulting and accounting firm” failed the “functional equivalent” standard and likewise fell outside privilege protection — because the consultant’s involvement was not “nearly indispensable or serve[d] some specialized purpose in facilitating the attorney-client communications.”  No. 15-CV-6165T, 2018 U.S. Dist. LEXIS 12358, at *12 (W.D.N.Y. Jan. 25, 2018).  Instead, “the proof suggests that [the consultant’s] role in attorney-client communications was merely useful and convenient.”  Id. at *19.

Most courts take this narrow approach.  But next week’s Privilege Point will discuss a case going the other way.