You Textin’ to Me? Robert De Niro Loses a Work Product Claim

May 25, 2022

Actor Robert De Niro’s feud with a former production company manager has generated several opinions by Southern District of New York Magistrate Judge Katharine Parker.

In Robinson v. De Niro, No. 19-CV-9156 (LJL) (KHP), 2022 U.S. Dist. LEXIS 42101 (S.D.N.Y. Mar. 9, 2022), the court analyzed several issues. Among other things, the court held that: (1) draft state court proceedings deserved work product or privilege protection; (2) “a cover note sharing a draft complaint without any commentary and that is a mere transmittal is not protected”; and (3) plaintiff’s resignation letter sent to De Niro did not deserve protection, but later email message traffic about it did deserve such protection. Somewhat surprisingly, the court held that a text message that “merely identifies information (specifically, a website link) on Plaintiff” did not deserve work product protection – because it “neither conveys nor seeks legal advice and does not reflect any attorney mental impressions.” Id. at *21-23, *26-27. Although transmittal communications generally deserve no protection, many courts would protect as fact (probably not opinion) work product a litigation-motivated text message pointing to some source of information about an adversary.

Proskauer alum Judge Katharine Parker seems to have become the go-to privilege/work product expert on the S.D.N.Y. – after Judge James Francis’s 32-year tenure playing that role. So lawyers should pay special attention to her analyses.