Tag: attorney-client privilege

December 7, 2018 Litigation, Uncategorized

Attorney-client privilege protected defendants’ lawyers’ communications with PR firm hired to combat negative online treatment

In defending intellectual property claims over video games, defendants’ law firm hired a public relations firm to assist it with “input on legal strategy, including regarding initial pleadings and communications about the case to counteract [plaintiff’s] false and negative statement.” Defendants were allegedly being targeted by negative online attacks by the plaintiff.

During discovery, plaintiff served a subpoena on the hired PR firm, seeking, among other things, all documents relating to the communciations between the PR firm and defendants’ counsel.

Defendants sought to quash the subpoena, arguing the information was protected from disclosure under the attorney-client privilege. The court quashed the subpoena.

It found that because defendants’ counsel (and not defendants themselves) hired the PR firm to provide PR counseling specifically for the purposes of litigation strategy, the attorney-client privilege extended to the communications between the PR firm and defendants’ counsel pertaining to “giving and receiving legal advice about the appropriate response to the lawsuit and making related public statements.”

Specifically, these communications were

  • confidential communications made
  • between lawyers and public relation consultants
  • hired by the lawyers to assist them in dealing with the media in cases or litigation
  • that were made for the purpose of giving or receiving advice
  • directed at handling the client’s legal problems that were undeniably protected by the attorney client privilege.

The court similarly found that the attorney work product doctrine extended to the communications exchanged between the PR firm and defendants’ counsel. As could be seen by the privilege log, documents such as a “draft Answer and Counterclaim” and a “draft press release” would contain “the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” Moreover, documents such as a “draft Answer and Counterclaim” and a “draft press release” were “prepared in anticipation of litigation or for trial.” Defendants’ counsel also did not waive their work-product protection when they shared otherwise valid work product (e.g. draft Answers or Counterclaims) with the PR firm for assistance because the communications were intended to be confidential.

Stardock Systems, Inc. v. Reiche, 2018 WL 6259536 (N.D.Cal. Nov. 30, 2018)

See also: Emails sent through Yahoo account using work computer protected under attorney-client privilege

March 31, 2010 Electronic Discovery, Employment, Litigation, Privacy

Emails sent through Yahoo account using work computer protected under attorney-client privilege

The New Jersey supreme court has held that emails an employee sent to her lawyer using her company-issued computer and a personal Yahoo account are protected by the attorney-client privilege.

Stengart v. Loving Care Agency, Inc., — A.2d —, 2010 WL 1189458 (N.J. March 30, 2010)

The New Jersey courts have a reputation of being protective of “informational privacy.” See, e.g., State v. Reid. A recent decision concerning employee privacy in personal emails adds to that reputation.

Plaintiff-employee used a work-issued laptop to access her Yahoo email account, through which she communicated with her lawyer about her lawsuit against the employer. During the discovery phase of that employment discrimination lawsuit, the employer used computer forensics to recover those Yahoo emails that had been copied to the computer’s temporary internet files folder.

Counsel for plaintiff demanded that the employer turn over the recovered emails, arguing that the communications were protected by the attorney-client privilege. When the employer agreed to turn them over but not discontinue use of the information garnered from them, plaintiff sought relief from the court.

The trial court denied relief and plaintiff sought review with the appellate court. That court reversed, and the employer sought review with the state’s supreme court. The supreme court upheld the appellate court’s decision, holding that the employee had a reasonable expectation of privacy in the communications.

The employer relied on a broadly-written company policy through which the employer reserved the right to review and access “all matters on the company’s media systems and services at any time.” But the court rejected those arguments.

Framework for the analysis

The supreme court considered two aspects in its analysis: (1) the adequacy of the notice provided by the company policy, and (2) the important public policy concerns raised by the attorney-client privilege.

As for the adequacy of the notice provided by the policy, the court found that because the policy did not address the use of password-protected personal email accounts, the policy was “not entirely clear.” As for the importance of the attorney-client privilege, the court lavished it with almost-sacred verbal accoutrements, calling it a “venerable privilege . . . enshrined in history and practice.”

“Intrusion upon seclusion” as source for standard

The court noted that the analysis for a reasonable expectation of privacy in dealings between two private parties was a bit different than the analysis in a Fourth Amendment case. The common law source for the standard in this context is with the tort of “intrusion upon seclusion.” Under New Jersey law, that tort is committed when one intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, in a manner that would be highly offensive to a reasonable person. (This language comes from the Restatement (Second) of Torts § 652B.)

In this situation, the court found that plaintiff had both a subjective and objective expectation that the messages would be private. Supporting her subjective belief was the fact that she used a private email account that was password protected, instead of her work email account. And she did not store her password on the computer. Her belief was objectively reasonable given the absence of any discussion about private email accounts in the company policy.

Plaintiff’s expectation of privacy was also bolstered by the fact that the email messages were not illegal, nor would they impact the performance of the employer’s computer system. And they bore all the “hallmarks” of attorney-client communications.

For all these reasons, not the least of which the priority of the courts “to keep private the very type of conversations that took place here,” the court found that the conversations were protected by the attorney-client privilege.

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