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No Attorney-Client Privilege Where Public Relations Firm Included on Emails with Lawyers

Posted on December 4th, 2017

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Follow our blog for ESI case lawIn Lukasz Gottwald P/K/A Dr. Luke, Kasz Money, Inc., and Prescription Songs, LLC, v. Kesha Rose Sebert P/K/A/ Kesha (2017 NY Slip Op 27363), the Supreme Court of New York ordered non-party Sunshine Sachs, a public relations firm hired on behalf of the singer Kesha, to produce documents responsive to Plaintiffs’ subpoena.

In October 2017, Sunshine Sachs produced its responsive electronic data after first objecting to the production. Kesha then served two privilege logs of withheld and redacted ESI (“the Logs”), some of which involves another public relations firm. On October 24, 2017, Plaintiffs moved to compel production of the documents on the Logs. Plaintiffs contend the documents are not exempt from disclosure because any privilege that may have otherwise applied was waived by virtue of the presence of a non-lawyer — Sunshine Sachs — on the emails. Kesha opposed the motion, arguing that Sunshine Sachs’ interfacing with her lawyers was necessary for the provision of legal advice. She argues that the nature of her public relations campaign, which was for the purpose of putting public pressure on Plaintiffs to settle, amounts, as a matter of law, to the provision of legal services. Therefore communications with a non-lawyer about a public relations campaign related to pending litigation are privileged.

New York law mandates full disclosure of all evidence material and necessary in the prosecution or defense of an action. However, it also establishes three categories of protected materials: privileged matter; attorney’s work product and trial preparation materials.

The Court has held that the attorney-client privilege may apply to communications between an attorney and a public relations firm if such communications otherwise are protected by the privilege. A party invoking the attorney-client privilege has the burden of showing, as to each allegedly privileged communication, that it was between counsel and client, intended to be and remained confidential, and made for the purpose of providing or obtaining legal advice. The predominant purpose of a communication must involve legal advice.  The general rule is that communications with non-parties waives the privilege. For an exception to apply, the party claiming privilege must demonstrate that the client had a reasonable expectation of confidentiality under the circumstances, and that disclosure to the third party was necessary for the client to obtain informed legal advice. The `necessity’ element requires that the involvement of the third party be nearly indispensable in facilitating the attorney-client communications. Thus, where the third party’s presence is merely useful but not necessary, the privilege is lost.

The court’s in camera review of the logged documents reveal a public relations strategy, the goal of which was to induce Plaintiffs to quickly settle. The court looked to distinguish between a public relations strategy and a legal strategy. Most of the withheld documents reflect the former. Some of the communications did indeed reflect Kesha’s counsel’s legal advice and mental impressions, which ordinarily would be privileged, but by discussing such matters with a public relations firm primarily for the purpose of advancing a public relations strategy — and not for the purpose of developing or furthering a legal strategy — most of the legal advice discussed with Sunshine Sachs lost the protection of the attorney-client privilege.

Therefore, Plaintiffs’ motion to compel defendants to produce all documents on the Logs is granted in part.

 

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