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A N 8 8 D 8 B 1 AR SINCE www. NYLJ.com Volume 250—NO. 110 Friday, december 6, 2013 Outside Counsel Expert Analysis Strikes Out On Privilege Arguments

oger Clemens didn’t get up to bat very involving a public relations firm and a licensed often in his baseball career but when attorney performing business services will be he did in federal court in the Eastern afforded protection from discovery pursuant District recently, he struck out! Plain- to the attorney-client privilege and/or under tiff, Brian McNamee, a former athletic the attorney work-product doctrine. Rtrainer for the Yankees, commenced Privilege Logs a lawsuit for defamation against defendant, Roger Clemens, one of the greatest and most By And FRCP 26(b)(5)(A) and Local Rule 26.2(b) Michael Stephen J. feared pitchers of all govern privilege logs. Pursuant to these rules, Cardello III Ginsberg time. According to the complaint, McNamee a party seeking to withhold documents under alleges that Clemens waged a defamatory pub- the attorney-client privilege and/or work-prod- lic relations campaign against McNamee in dence with Public Strategies were privileged, because Public Strategies was hired to assist uct protection must produce a privilege log order to ruin McNamee’s reputation and brand that “describe[s] the nature of the documents, McNamee a liar, in retaliation for testimony Clemens’ legal team in devising legal strategy. In addition, Clemens argued that Hendricks communications, or tangible things not pro- given by McNamee to Congress that McNa- duced or disclosed—and do so in a manner mee had injected Clemens with performance was hired as a legal advisor in 1983 and acted that, without revealing information itself privi- enhancing drugs (PEDs). as “the equivalent of in-house counsel… and leged or protected, will enable other parties to As it turns out, Clemens is just as aggres- [was] an active member of the team of attor- assess the claim.” FRCP 26(b)(5)(A). The U.S. sive in litigation as he was on the pitcher’s neys representing Clemens [in this action]” mound. During the discovery phase of the mat- (decision, p. 3). Because Clemens refused to Court of Appeals for the Second Circuit has ter, McNamee served a discovery demand on produce the requested documents, or even refused to uphold a claim of privilege where Clemens in which McNamee requested the produce a privilege log, McNamee filed a the entries in a privilege log have been deemed production of all communications Clemens motion to compel. inadequate or no privilege log was produced had with his public relations strategist, Joe at all. See OneBeacon Ins. v. Forman Int’l, No. Householder, and Householder’s firm, Public 04 CV 2271, 2006 WL 3771010 (S.D.N.Y. 2006); Strategies. McNamee also demanded from A decision analyzes which types v. Constr. Products Research, 73 Clemens all communications Clemens had of communications involving a F.3d 464, 473 (2d Cir. 1996); Allied Irish Banks v. with Randal Hendricks and Hendricks Sports Bank of Am., N.A., 252 F.RD. 163, 167 (S.D.N.Y. Management. Clemens refused to produce the public relations firm and a licensed 2008); and FG Hemisphere Associates v. Repub- requested information, claiming that it was attorney performing business lique Du Congo, No. 01 CV 8700, 2005 U.S. Dist. subject to the attorney-client privilege and/or services will be afforded protection LEXIS 3523 (S.D.N.Y. 2005). constituted work product. Citing Local Rule 26.2(b), Pollak held that In support of his claim that communica- from discovery. Clemens’ failure to timely produce a privilege tions with Public Strategies were shielded log resulted in a waiver of privilege and work- from discovery, Clemens argued that House- On Sept. 17, 2013, Magistrate Judge Cheryl product protection. Significantly, prior to issu- holder was “a full-fledged, yet non-attorney, ing the decision, the court ordered Clemens member of the [Clemens’] legal team” (deci- Pollak, in McNamee v. Clemens, (09-cv-01649 (SJ)(CLP) Sept. 17, 2013), issued a decision to produce the documents which Clemens sion, p. 2). Public Strategies had been hired by claimed were non-discoverable for in camera Clemens shortly after Senator George Mitchell granting, in large part, McNamee’s motion to compel. The decision is significant for a num- review, which Clemens did. At the same time, released the “,” which includ- Clemens also produced a privilege log. Upon ed statements by McNamee that McNamee ber of reasons. First, it highlights the severe penalties that can result from a party’s failure review of Clemens’ privilege log, the court had injected Clemens with PEDs. Clemens found that it was deficient, because it failed claimed that documents and correspon- to properly produce a privilege log under Fed- eral Rule of Civil Procedure (FRCP) 26(b)(5)(A) to comply with the requirements under Local and Rule 26.2(c) of the Local Rules of the U.S. Rule 26.2(b). The court stated that while a District Courts for the Southern and Eastern party may, in certain instances, be permitted Michael Cardello III is a partner at Moritt Hock & districts of New York. Additionally, the deci- to identify purportedly privileged documents Hamroff.Stephe n J. Ginsberg is an associate at the firm. sion analyzes which types of communications by category, broad classes of documents with Friday, december 6, 2013

exceedingly general and unhelpful descrip- public relations firms and agents. Haugh v. right to invoke the attorney-client privilege, tions will not be sufficient to comply with Schroder Inv. Mgmt. N. Am., No. 02 CV 7955, the court went the extra step and neverthe- Local Rule 26.2(b). 2003 WL 21998674, at *3 (S.D.N.Y. 2003); In re less found that almost all of the documents The court went on to state that the privi- Grand Jury Subpoenas Dated March 24, 2003 Clemens sought to protect were not of a legal lege log that was ultimately produced to the Directed (A) Grand Jury Witness Firm & (B) character and, thus, undeserving of protection. court (though late), along with documents Grand Jury Witness, 265 F.Supp.2d 321, 325 Work-Product Protection for the in camera review, lists each docu- (S.D.N.Y. 2003). In order for the communica- ment individually and provides each docu- tion to be protected between an attorney The court also determined whether the ment’s date, author, recipient, and subject. and non-attorney under the attorney-client documents sought to be withheld by Clem- However, the subject lines which described privilege, the “critical inquiry” is “whether ens were protected under the work-product the withheld documents contained, in many the communication with the person assisting doctrine. The court began its analysis with instances, exceedingly unhelpful descriptions, the lawyer was made in confidence and for the basic premise that “[t]o invoke the work- such as single word descriptions, “tomorrow,” the purpose of obtaining legal advice.” Allied product doctrine, the party withholding dis- “Media,” “My info,” “statement,” “Costs,” Irish Banks v. Bank of Am., N.A., 252 F.R.D. covery must show that the withheld material “Letter,” “notes,” “Inquiry,” and “Discussion” at 168; Haugh v. Schroder Inv. Mgmt. N. Am., is: 1) a document or tangible thing; 2) that (decision, p. 7). The court held that “these No. 02 CV 7955, 2003 WL 21998674, at *3; In was prepared in anticipation of litigation; and types of descriptions clearly do not provide re Grand Jury Subpoenas Dated March 24, 3) was prepared by or for a party, or by his sufficient information as to the content of the 2003 Directed (A) Grand Jury Witness Firm & representative.” Allied Irish Banks v. Bank of documents to enable plaintiff or the court to (B) Grand Jury Witness, 265 F.Supp.2d at 325. Am., N.A., 252 F.R.D. at 173; OneBeacon Ins. evaluate whether each of the withheld docu- v. Forman Int’l, 2006 WL 3771010, at *4. The ments is privileged and [as such], the court’s court then noted that the protection would in camera examination of the records has been not be available for documents “created in seriously impeded.” Even though the court had already essentially the same form irrespective of One of the important points to distill from held that Clemens had waived litigation.” Allied Irish Banks v. Bank of Am., the decision is that a party in a federal action, N.A., 252 F.R.D. at 173. who believes he or she does not need to serve his right to invoke the attorney- Based upon its in camera review, the court a privilege log with respect to documents with- client privilege, the court went the held that the documents that Clemens sought held pursuant to attorney-client privilege and/ extra step and nevertheless found to protect as work-product rarely involved liti- or as work-product, or fails to strictly comply gation strategy. In the rare instances where with the requirements set forth in FRCP 26(b) that almost all of the documents litigation strategy was mentioned, those (5)(A) and/or Local Rule 26.2(b) (if the action Clemens sought to protect were communications focused on public relations is pending in the Southern or Eastern districts and media strategy. The court acknowledged of New York), does so at his or her own peril. not of a legal character and, thus, that the communications may have “played Attorney-Client Privilege undeserving of protection. an important role” in Clemens’ litigation strat- egy, but refused to cloak them with the work- Despite the fact that the court held that product protection, because: “as a general mat- Clemens waived his right to invoke the attor- The court acknowledged that in specific ter public relations advice, even if it bears on ney-client privilege by failing to timely and instances communications between an attor- anticipated litigation, falls outside the ambit adequately propound a privilege log, the court ney and a public relations’ firm could be of protection of the so-called ‘work product’ nevertheless went through the arduous task shielded from disclosure (citing In re Grand doctrine….That is because the purpose of of conducting an in camera review of more Jury Proceedings, 219 F.3d 175 (2d Cir. 2000), the rule is to provide a zone of privacy for than 900 documents that Clemens sought to holding that communications with a PR firm strategizing about the conduct of litigation protect from discovery. were protected from disclosure where the PR itself, not for strategizing about the effects The court began its analysis by recognizing firm was hired to advise on how to reduce pub- of the litigation on the client’s customers, the that the attorney-client privilege is one of the lic pressure on prosecutors to bring charges). media, or on the public generally.” Calvin Klein oldest recognized privileges and is intended However, according to the court, that was not Trademark Trust v. Wachner, 198 F.R.D. at 55; to encourage full and frank communication the case here. In the instant matter, the court Egiazaryan v. Zalmayev, 290 F.R.D. 421, at *12. between attorneys and their clients. Collins found that the vast majority of documents It appears that, based upon the court’s hold- v. City of New York, No. 11 CV 766, 2012 WL revealed in camera demonstrated that House- ing in the decision, in certain instances, com- 3011028, at *3 (E.D.N.Y. 2012); D’Alessio v. Gil- holder, Public Strategies and Hendricks did munications between a law firm and a public berg, 205 A.D.2d 8, 10, 617 N.Y.S.2d 484, 485 (2d not perform anything other than standard relations firm can be shielded from production Dept. 1994). The court then stated that “[t]he public relations or agent services for Clem- under the attorney-client privilege or work- attorney-client privilege protects (1) a com- ens to assist in the formulation of a public product doctrine. However, the communica- munication between client and counsel that relations campaign and media strategy aimed tions have to be made strictly in connection (2) was intended to be and was in fact kept at protecting Clemens’ public image and repu- with legal advice—not the impact litigation will confidential, and (3) was made for the purpose tation in the face of allegations that Clemens have on a client’s business and/or reputation. of obtaining or providing legal advice.” In re used PEDs. McNamee may have won this game in the County of Erie, 473 F.3d 413, 419 (2d Cir. 2007); The court also found that the communi- series, however, as Yogi Berra famously said Assured Guar. Mun. v. UBS Real Estate, No. 12 cations with Householder and Hendricks “it ain’t over till it’s over.” CV 1579, 2013 WL 1195545, at *9 (S.D.N.Y. 2013). were not necessary so that Clemens’ coun- However, the court acknowledged that sel could provide Clemens with legal advice Reprinted with permission from the December 6, 2013 edition of the NEW YORK LAW JOURNAL © 2014 ALM Media Properties, LLC. All rights reserved. Further an exception applies to those assisting a (decision, p. 11). Thus, even though the court duplication without permission is prohibited. For information, contact 877-257-3382 lawyer in representing a client, such as had already held that Clemens had waived his or [email protected]. # 070-01-14-09