Courts Wrestle with Privilege Protection for Client Consultants: Part II

March 28, 2018

Last week’s Privilege Point summarized two cases finding that corporate client consultants:  (1) did not meet the “functional equivalent” standard; and (2) were not “nearly indispensable” for facilitating communications between the corporate client and its lawyers.  Such holdings make privilege protection unavailable for communications between the corporate client (or its lawyer) and the consultant, and also normally compel the conclusion that disclosing preexisting privileged communications to such consultants waives the privilege.

However, some cases take a more favorable view.  In FiberLight, LLC v. Washington Metropolitan Area Transit Authority, Civ. A. No. 16-2248 (ESH), 2018 U.S. Dist. LEXIS 8079 (D.D.C. Jan. 18, 2018), defendant hired a consultant to analyze current and potential future development of its fiber optic system.  Plaintiff, alleging breach of contract, sought the consultant’s report to the defendant, challenging the defendant’s redaction of the section entitled “Legal Concerns.” Id. at *2.  In a one paragraph analysis, the court confirmed after its in camera review that the redacted portion “reflects the views of [Defendant’s] legal counsel regarding potential legal issues.” Id. at *6.  The court then upheld the redaction, explaining that “the sharing of such privileged information with a consultant who needs that information in order the complete a project for the company does not constitute a waiver of the privilege.” Id. at *7.

Although this favorable approach represents the minority view, corporations and their lawyers should check the applicable court’s privilege law for such helpful precedent.

Courts Wrestle with Privilege Protection for Client Consultants: Part I