Corporations and their lawyers frequently work with public relations consultants when facing ongoing or anticipated litigation. In the work product context, courts agree that disclosing preexisting work product to such consultants does not waive that robust protection, but disagree about whether the consultants can themselves create protected work product.
The analysis in the attorney-client privilege context involves even more judicial disagreements. In Grand Canyon Skywalk Development LLC v. Cieslak, the District of Nevada extensively dealt with this issue, starting with an understatement: "Courts are divided on whether the attorney-client privilege extends to communications between a client's counsel and the public relations consultant that the client or its counsel hires to assist in ongoing or anticipated legal matters or disputes." Case Nos. 2:15-cv-01189- & 2:13-cv-00596-JAD-GWF, 2015 U.S. Dist. LEXIS 107457, at *22 (D. Nev. Aug. 13, 2015). The court catalogued many cases dealing with this issue — noting that some decisions protect such communications either (1) because the lawyers needed the consultants' assistance in providing legal advice, or (2) because "the consultant is the functional equivalent of the client's employee." Id. at *27. The court ultimately extended privilege protection using the second approach. Ironically, the court described as a helpful fact that "[t]here is no evidence that [the public relations consultant] undertook to provide general public relations services to the [defendant] beyond the legal dispute with the Plaintiffs." Id. at *40. That fact actually cuts against the "functional equivalent" standard.
Most courts consider public relations consultants outside privilege protection. The good news is that corporations most frequently call upon such consultants during or in anticipation of litigation, making the work product doctrine protection available in many cases.