Is it a Privilege to Speak With a PR Consultant? Maybe Not for Kesha!
November 30, 2017
So you were just retained on what could become a high-profile case. The stakes are high, and it’s unclear how this will play in the media. The issue may arise based on the parties to the case, the nature of the claims, or both. Either way, as part of your litigation strategy, you decide that the assistance and guidance of a public relations or media crisis management firm is wise and necessary to render effective counsel. You prepare your standard Kovel letter, and retain the PR consultant to assist. As part of that engagement, you advise both consultant and client that it is essential that you — as counsel — be copied on all communications so as to ensure the protection of privileged communications. Is this enough protection to guard against the PR consultant from being compelled to disclose communications? Maybe not.
In Gottwald v. Sebert, a case involving singer-songwriter and recording artist Kesha, Justice Shirley Kornreich ordered non-party Sunshine Sachs (the PR consultant) to produce certain documents identified on its privilege log. The court held that the communications with the PR agency were not necessary for the rendering of legal advice. Simply copying an attorney on the communication is not enough to invoke the attorney client privilege. In footnote 7, the court raised an issue with respect to draft complaints logged and whether they were protected by the work product doctrine, which the court noted “is less likely to result in a waiver than with the attorney-client privilege.” Following the court’s decision, counsel for defendant submitted a letter addressing the work product issue and why it prevented disclosure of certain materials. The parties have been ordered to address this issue at an upcoming court conference in December.
Hiring a PR consultant to assist counsel navigate the media minefield, although wise, can be risky. The court in Gottwald analyzed the growing body of case law in this area, particularly in the federal courts within the Second Circuit, which seem to lean toward not finding “necessity” for the PR consultant’s involvement, but they are more apt consider application of the attorney work product doctrine. Of course, unlike privilege, work product may, under certain circumstances be invaded, see Fed. R. Civ. P. 26(b)(3)(A).
There are several key decisions from the federal courts on this issue, namely, In re Chevron (SDNY; Kaplan, J.), Calvin Klein Trademark Trust v. Wachner (SDNY; Rakoff, J.), and Bloomingburg Jewish Educ. Ctr. v. Vill. of Bloomingburg (SDNY; Forrest, J.), that are a “must read” before engaging a PR consultant. In New York, there is a scarcity of decisions, but the First Department in 2014 ruled in Pecile v. Titan Cap. Group, LLC that communications with a PR consultant do not per se waive the privilege. The common thread in all of these authorities is to determine whether the particular communications with the PR consultant are necessary in order for counsel to render informed legal advice to the client.