In Fine v. ESPN, Inc., No. 5:12-CV-0836 (N.D.N.Y. May 28, 2015), the district court affirmed a magistrate judge’s decision holding that communications between a client’s counsel and a public relations consultant were not privileged under New York law.  In this defamation action, plaintiff subpoenaed records from a third party university, which had conducted an internal investigation into sexual abuse allegations made against plaintiff’s husband.  The university asserted attorney-client privilege over communications with a PR firm, which had been engaged by the university’s counsel, on the grounds that the PR firm was assisting counsel to provide legal advice and was, therefore, an agent of counsel and within the privilege.  The university argued that, due to the heightened media scrutiny surrounding the investigation, its attorneys required PR assistance in order to shape media coverage and to avoid prosecution of the university.  The magistrate judge reviewed the documents in camera and determined that the PR firm communications were not privileged because they were “ordinary public relations advice” and were not necessary to enable counsel to provide legal advice.  Under New York law, in order for a consultant to qualify for the “agency exception” to the general rule that disclosure to a third party waives privilege, a party must demonstrate that: (1) it had a reasonable expectation of confidentiality under the circumstances, and (2) disclosure to the third party was necessary for the client to obtain informed legal advice.  The necessity element means more than “just useful and convenient,” but rather requires the involvement of the third party to be “nearly indispensable or serve some specialized purpose to facilitating the attorney-client communications.”  The court held that the magistrate judge applied the proper legal standard and that communications that the magistrate judge found were not necessary to the provision of legal advice were properly deemed not privileged.