The Southern District of New York recently held that sharing attorney-client privileged communications with a public relations firm destroys that privilege. Universal Standard brought a trademark infringement and unfair competition suit against Target. During the course of discovery, documents were produced consisting of emails between Universal Standard, its outside counsel, and BrandLink, a public relations firm. When Universal Standard sought to claw back the documents because they were privileged, Target refused. The court considered whether the fact that emails between Universal Standard and its counsel were also shared with BrandLink should result in a waiver, or whether the communications fall under one of several possible exceptions to the general rule that “disclosure to a third party by the party of a communication with his attorney eliminates whatever privilege the communication may have originally possessed.” First, the court considered whether BrandLink was “essential to allow communications between the attorney and the client, such as an interpreter or accountant.” This exception applies where the third party enables counsel to understand aspects of the client’s own communications that could not otherwise be appreciated, but not where the communications are merely important to the attorney’s ability to represent the client. Here, the emails involved discussions regarding a public relations strategy surrounding the filing of the lawsuit and whether to issue...
Tagged: Work Product Doctrine
New Jersey Supreme Court Formally Adopts and Defines the Scope and Application of the Common Interest Rule
In a matter of first impression, the New Jersey Supreme Court in O’Boyle v. Borough of Longport expressly adopted the common interest rule in New Jersey as articulated in LaPorta v. Gloucester County Board of Chosen Freeholders. Although previously addressed and analyzed by lower courts within New Jersey, the Court’s ruling clarifies the boundaries of the rule and offers guidance in resolving the scope of its application.
Third Circuit Clarifies that Reasonable Basis Standard Appropriate Quantum of Proof to Apply Crime-Fraud Exception to Attorney-Client Privilege
Clarifying the proofs necessary to apply the crime-fraud exception, the Third Circuit Court of Appeals in In re: Grand Jury recently held that a “reasonable basis” standard should be used, explaining that such a standard affords sufficient predictability for attorneys and clients without providing undue protection to those who seek to abuse the attorney-client and the work-product privileges afforded to them.