In an opinion Friday, Judge Forrest rejected claims by a group of defendants (referred to as the “Town Defendants”) and their public relations firm that their communications were in all circumstances privileged, because no one had done the necessary work to show, on a communication-by-communication basis, that the privilege would apply:

The Town Defendants’ position is sweeping and rather brazen. They ask plaintiffs and this Court to rely on their broad representations that the attorney-client and work-product privileges apply to communications with an outside public relations consultant without doing any of the necessary basic work to show that the privileges apply to particular documents on the facts and circumstances presented here. They concede that they have not collected, reviewed or logged the communications at issue, and thus have failed to meet their burden of showing that any of the documents or communications are entitled to protection under the attorney-client or work-product privileges. Beyond the fact that no principle of law supports the Town Defendants’ blanket invocation of privilege as to all communications with an outside public relations firm, and in the absence of any competent evidence sufficient to meet the Town Defendants’ burden of showing that either privilege applies, the Court is left without any basis to find that the Town Defendants have made the compelling case necessary to warrant quashing plaintiffs’ subpoena.

Judge Forrest acknowledged that a public relations firm could be party to privileged communications, and cited one criminal case which upheld the privilege because the public relations firm was consulted in a manner connected to the lawyers’ legal advice — i.e., to help “communicate with the media in a way that would . . . reduce prosecutors’ pressure to bring charges.” But she found that, in this case, there was no evidence the firm was engaged for “any purpose other than communicating with the general public at large.”