The Southern District of New York Defines The Privilege Standard For Communications With Three Types of Consultants

August 7, 2019

Clients and their lawyers often work with consultants. If such consultants are found to be outside privilege protection: (1) communications with them do not deserve privilege protection; (2) their participation in otherwise privileged communications aborts that protection; and (3) disclosing pre-existing privileged communications to them waives that protection. So corporations and their lawyers must know the privilege standard for each consultant.

In Universal Standard Inc. v. Target Corp., 331 F.R.D. 80 (S.D.N.Y. 2019), Judge Gorenstein dealt with the three most common types of consultants. First, client consultants are within privilege if they are “deemed essential to allow communication between the attorney and the client, such as an interpreter or accountant.” Id. at 87. Second, some consultants are the “‘functional equivalent’ of a corporate employee.” Id. Third, some consultants assist lawyers in providing legal advice to their clients. The court ultimately concluded that plaintiff’s public relations consultant did not fall within any of those protected categories, concluding that: (1) “BrandLink did not serve to improve counsel’s understanding of [plaintiff’s] request for legal advice” (id. at 88); (2) BrandLink did not have “any independent authority to decide to issue a press release,” and did not “work[] exclusively” for plaintiff, but instead “provides services for over a dozen other brands” (id. at 90); (3) “[t]here is no evidence that the purpose of the communications with BrandLink was to assist counsel in engaging in a legal task as opposed to allowing [plaintiff] to make a decision about the nature of publicity that should be sought.” Id. at 92.

This Southern District of New York opinion provides a helpful checklist of what corporations must prove in many courts if they seek protection for communications with, in the presence of, or later shared with, outside consultants.