Challenges to claims of attorney-client privilege and the work product doctrine continue to generate significant attention from the courts. The following summaries are from recent privilege and work-product cases in which the scope of these doctrines is addressed…
In this case, the United States District Court for the Northern District of New York examined whether plaintiff, NXIVM Corp. (“NXIVM”), waived the attorney-client privilege and work product doctrine by sharing details of privileged documents with a third-party public relations firm, Sitrick Company (“Sitrick”) that the plaintiff hired during the course of the litigation.
After being the subject of an unflattering expose in Forbes magazine, NXIVM hired Sitrick primarily to combat negative press, create a long-term and shortterm public relations strategy, and to ultimately enter into a written retainer with NXIVM’s legal counsel to provide advice and public relations guidance in connection with various legal concerns.
The retainer agreement between Sitrick and NXIVM’s legal counsel provided that “all communications, correspondence, etc. between Sitrick and NXIVM’s legal counsel shall be deemed to constitute attorney work product and otherwise be protected by the attorney-client privilege.” Despite this language, the court found that the language in the confidentiality clause did not necessarily invoke the attorney-client privilege or work product protections; rather it was the facts, circumstances and purpose of the communications that determined whether information deserved protection under those doctrines.
After analyzing the facts, circumstances and purpose of the communications between Sitrick and NXIVM’s legal counsel, the court determined that such communications were not protected from disclosure under the attorney-client privilege or the work product doctrine. The court held that sharing work product with a third party with the intent of maintaining its secrecy and preventing it from falling into the hands of the adversary is a generally accepted principle, but it is not a bright line rule.
Under the facts of this case, there was limited communication between Sitrick and NXIVM’s legal counsel in general, and almost no communication between the two with respect to the litigation in which NXIVM was involved.
Moreover, NXIVM’s counsel gave no direction to Sitrick nor sought any instructions or translation from Sitrick to help aid NXIVM’s counsel in the representation of NXIVM. Furthermore, there was no evidence that Sitrick was hired to maintain NXIVM’s attorney’s work product in confidence; nor was there evidence that Sitrick was to know the legal strategy of the litigation in order to advise NXIVM on public relations issues. Rather, Sitrick was simply hired to clean up NXIVM’s damaged image. Therefore, the limited communications that existed between Sitrick and NXIVM’s counsel were not protected by the attorneyclient privilege. Furthermore, the documents shared between these entities were not protected under the work product doctrine.