United States: Roger Clemens Strikes Out On Privilege Arguments

Roger Clemens didn't get up to bat very often in his baseball career but when he did in federal court in the Eastern District recently, he struck out! Plaintiff, Brian McNamee, a former athletic trainer for the New York Yankees, commenced a lawsuit for defamation against defendant, Roger Clemens, one of the greatest and most feared Major League Baseball pitchers of all time. According to the complaint, McNamee alleges that Clemens waged a defamatory public relations campaign against McNamee in order to ruin McNamee's reputation and brand McNamee a liar, in retaliation for testimony given by McNamee to Congress that McNamee had injected Clemens with performance enhancing drugs (PEDs).

As it turns out, Clemens is just as aggressive in litigation as he was on the pitcher's mound. During the discovery phase of the matter, McNamee served a discovery demand on Clemens in which McNamee requested the production of all communications Clemens had with his public relations strategist, Joe Householder, and Householder's firm, Public Strategies. McNamee also demanded from Clemens all communications Clemens had with Randal Hendricks and Hendricks Sports Management. Clemens refused to produce the requested information, claiming that it was subject to the attorney-client privilege and/or constituted work product.

In support of his claim that communications with Public Strategies were shielded from discovery, Clemens argued that Householder was "a full-fledged, yet non-attorney, member of the [Clemens'] legal team" (decision, p. 2). Public Strategies had been hired by Clemens shortly after Senator George Mitchell released the "Mitchell Report," which included statements by McNamee that McNamee had injected Clemens with PEDs. Clemens claimed that documents and correspondence with Public Strategies were privileged, because Public Strategies was hired to assist Clemens' legal team in devising legal strategy. In addition, Clemens argued that Hendricks was hired as a legal advisor in 1983 and acted as "the equivalent of in-house counsel... and [was] an active member of the team of attorneys representing Clemens [in this action]" (decision, p. 3). Because Clemens refused to produce the requested documents, or even produce a privilege log, McNamee filed a motion to compel.

On Sept. 17, 2013, Magistrate Judge Cheryl Pollak, in McNamee v. Clemens, (09-cv-01649 (SJ)(CLP) Sept. 17, 2013), issued a decision granting, in large part, McNamee's motion to compel. The decision is significant for a number of reasons. First, it highlights the severe penalties that can result from a party's failure to properly produce a privilege log under Federal Rule of Civil Procedure (FRCP) 26(b)(5)(A) and Rule 26.2(c) of the Local Rules of the U.S. District Courts for the Southern and Eastern districts of New York. Additionally, the decision analyzes which types of communications involving a public relations firm and a licensed attorney performing business services will be afforded protection from discovery pursuant to the attorney-client privilege and/or under the attorney work-product doctrine.

Privilege Logs

FRCP 26(b)(5)(A) and Local Rule 26.2(b) govern privilege logs. Pursuant to these rules, a party seeking to withhold documents under the attorney-client privilege and/or work-product protection must produce a privilege log that "describe[s] the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." FRCP 26(b)(5)(A). The U.S. Court of Appeals for the Second Circuit has refused to uphold a claim of privilege where the entries in a privilege log have been deemed inadequate or no privilege log was produced at all. See OneBeacon Ins. v. Forman Int'l, No. 04 CV 2271, 2006 WL 3771010 (S.D.N.Y. 2006); United States v. Constr. Products Research, 73 F.3d 464, 473 (2d Cir. 1996); Allied Irish Banks v. Bank of Am., N.A., 252 F.RD. 163, 167 (S.D.N.Y. 2008); and FG Hemisphere Associates v. Republique Du Congo, No. 01 CV 8700, 2005 U.S. Dist. LEXIS 3523 (S.D.N.Y. 2005).

Citing Local Rule 26.2(b), Pollak held that Clemens' failure to timely produce a privilege log resulted in a waiver of privilege and workproduct protection. Significantly, prior to issuing the decision, the court ordered Clemens to produce the documents which Clemens claimed were non-discoverable for in camera review, which Clemens did. At the same time, Clemens also produced a privilege log. Upon review of Clemens' privilege log, the court found that it was deficient, because it failed to comply with the requirements under Local Rule 26.2(b). The court stated that while a party may, in certain instances, be permitted to identify purportedly privileged documents by category, broad classes of documents with exceedingly general and unhelpful descriptions will not be sufficient to comply with Local Rule 26.2(b). The court went on to state that the privilege log that was ultimately produced to the court (though late), along with documents for the in camera review, lists each document individually and provides each document's date, author, recipient, and subject.

However, the subject lines which described the withheld documents contained, in many instances, exceedingly unhelpful descriptions, such as single word descriptions, "tomorrow," "Media," "My info," "statement," "Costs," "Letter," "notes," "Inquiry," and "Discussion" (decision, p. 7). The court held that "these types of descriptions clearly do not provide sufficient information as to the content of the documents to enable plaintiff or the court to evaluate whether each of the withheld documents is privileged and [as such], the court's in camera examination of the records has been seriously impeded."

One of the important points to distill from the decision is that a party in a federal action, who believes he or she does not need to serve a privilege log with respect to documents withheld pursuant to attorney-client privilege and/ or as work-product, or fails to strictly comply with the requirements set forth in FRCP 26(b) (5)(A) and/or Local Rule 26.2(b) (if the action is pending in the Southern or Eastern districts of New York), does so at his or her own peril.

Attorney-Client Privilege

Despite the fact that the court held that Clemens waived his right to invoke the attorney- client privilege by failing to timely and adequately propound a privilege log, the court nevertheless went through the arduous task of conducting an in camera review of more than 900 documents that Clemens sought to protect from discovery.

The court began its analysis by recognizing that the attorney-client privilege is one of the oldest recognized privileges and is intended to encourage full and frank communication between attorneys and their clients. Collins v. City of New York, No. 11 CV 766, 2012 WL 3011028, at *3 (E.D.N.Y. 2012); D'Alessio v. Gilberg, 205 A.D.2d 8, 10, 617 N.Y.S.2d 484, 485 (2d Dept. 1994). The court then stated that "[t]he attorney-client privilege protects (1) a communication between client and counsel that (2) was intended to be and was in fact kept confidential, and (3) was made for the purpose of obtaining or providing legal advice." In re County of Erie, 473 F.3d 413, 419 (2d Cir. 2007); Assured Guar. Mun. v. UBS Real Estate, No. 12 CV 1579, 2013 WL 1195545, at *9 (S.D.N.Y. 2013).

However, the court acknowledged that an exception applies to those assisting a lawyer in representing a client, such as public relations firms and agents. Haugh v. Schroder Inv. Mgmt. N. Am., No. 02 CV 7955, 2003 WL 21998674, at *3 (S.D.N.Y. 2003); In re Grand Jury Subpoenas Dated March 24, 2003 Directed (A) Grand Jury Witness Firm & (B) Grand Jury Witness, 265 F.Supp.2d 321, 325 (S.D.N.Y. 2003). In order for the communication to be protected between an attorney and non-attorney under the attorney-client privilege, the "critical inquiry" is "whether the communication with the person assisting the lawyer was made in confidence and for the purpose of obtaining legal advice." Allied Irish Banks v. Bank of Am., N.A., 252 F.R.D. at 168; Haugh v. Schroder Inv. Mgmt. N. Am., No. 02 CV 7955, 2003 WL 21998674, at *3; In re Grand Jury Subpoenas Dated March 24, 2003 Directed (A) Grand Jury Witness Firm & (B) Grand Jury Witness, 265 F.Supp.2d at 325.

The court acknowledged that in specific instances communications between an attorney and a public relations' firm could be shielded from disclosure (citing In re Grand Jury Proceedings, 219 F.3d 175 (2d Cir. 2000), holding that communications with a PR firm were protected from disclosure where the PR firm was hired to advise on how to reduce public pressure on prosecutors to bring charges). However, according to the court, that was not the case here. In the instant matter, the court found that the vast majority of documents revealed in camera demonstrated that Householder, Public Strategies and Hendricks did not perform anything other than standard public relations or agent services for Clemens to assist in the formulation of a public relations campaign and media strategy aimed at protecting Clemens' public image and reputation in the face of allegations that Clemens used PEDs.

The court also found that the communications with Householder and Hendricks were not necessary so that Clemens' counsel could provide Clemens with legal advice (decision, p. 11). Thus, even though the court had already held that Clemens had waived his right to invoke the attorney-client privilege, the court went the extra step and nevertheless found that almost all of the documents Clemens sought to protect were not of a legal character and, thus, undeserving of protection.

Work-Product Protection

The court also determined whether the documents sought to be withheld by Clemens were protected under the work-product doctrine. The court began its analysis with the basic premise that "[t]o invoke the work-product doctrine, the party withholding discovery must show that the withheld material is: 1) a document or tangible thing; 2) that was prepared in anticipation of litigation; and 3) was prepared by or for a party, or by his representative." Allied Irish Banks v. Bank of Am., N.A., 252 F.R.D. at 173; OneBeacon Ins. v. Forman Int'l, 2006 WL 3771010, at *4. The court then noted that the protection would not be available for documents "created in essentially the same form irrespective of litigation." Allied Irish Banks v. Bank of Am., N.A., 252 F.R.D. at 173.

Based upon its in camera review, the court held that the documents that Clemens sought to protect as work-product rarely involved litigation strategy. In the rare instances where litigation strategy was mentioned, those communications focused on public relations and media strategy. The court acknowledged that the communications may have "played an important role" in Clemens' litigation strategy, but refused to cloak them with the work-product protection, because: "as a general matter public relations advice, even if it bears on anticipated litigation, falls outside the ambit of protection of the so-called 'work product' doctrine....That is because the purpose of the rule is to provide a zone of privacy for strategizing about the conduct of litigation itself, not for strategizing about the effects of the litigation on the client's customers, the media, or on the public generally." Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. at 55; Egiazaryan v. Zalmayev, 290 F.R.D. 421, at *12.

It appears that, based upon the court's holding in the decision, in certain instances, communications between a law firm and a public relations firm can be shielded from production under the attorney-client privilege or workproduct doctrine. However, the communications have to be made strictly in connection with legal advice—not the impact litigation will have on a client's business and/or reputation.

McNamee may have won this game in the series, however, as Yogi Berra famously said "it ain't over till it's over."

Originally published in the New York Law Journal, December 6, 2013.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions