The Southern District of New York recently held that sharing attorney-client privileged communications with a public relations firm destroys that privilege.
Universal Standard brought a trademark infringement and unfair competition suit against Target. During the course of discovery, documents were produced consisting of emails between Universal Standard, its outside counsel, and BrandLink, a public relations firm. When Universal Standard sought to claw back the documents because they were privileged, Target refused. The court considered whether the fact that emails between Universal Standard and its counsel were also shared with BrandLink should result in a waiver, or whether the communications fall under one of several possible exceptions to the general rule that “disclosure to a third party by the party of a communication with his attorney eliminates whatever privilege the communication may have originally possessed.”
First, the court considered whether BrandLink was “essential to allow communications between the attorney and the client, such as an interpreter or accountant.” This exception applies where the third party enables counsel to understand aspects of the client’s own communications that could not otherwise be appreciated, but not where the communications are merely important to the attorney’s ability to represent the client. Here, the emails involved discussions regarding a public relations strategy surrounding the filing of the lawsuit and whether to issue a press release, but Universal Standard did not need BrandLink to communicate with their attorneys, so the court held the exception did not apply.
Second, the court considered whether BrandLink could be “deemed the ‘functional equivalent’ of a corporate employee.” This exception usually applies where corporate employees communicate with counsel at the direction of corporate superiors in order to secure legal advice from counsel. But the court held the exception did not apply here because BrandLink is not a corporate employee, nor did it have “independent authority” to decide to issue a press release.
Third, the court considered whether BrandLink could be considered a “consultant used by lawyers to assist in performing [certain] tasks that go beyond advising a client as to the law — in particular, tasks that promote broader public interests in the observance of law and administration of justice.” Usually communications with public relations consultants are protected where they are directed at handling the client’s legal problems in media crises, not discussions about the nature of the publicity that should be sought, as was the case here.
This case serves as a reminder for litigants and their counsel to be wary about including third parties in communications that they want to remain protected by the attorney-client privilege.