Calvin Klein Trademark Trust v. Wachner
198 F.R.D. 53, 2000 U.S. Dist. LEXIS 17464, 48 Fed. R. Serv. 3d 1055 (2000)
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Rule of Law:
Communications between a client's attorney and a third-party consultant, such as a public relations firm, are protected by the attorney-client privilege only if the consultant's role is to facilitate the attorney's understanding of the client's confidential communications, akin to a translator. Providing ordinary public relations services, even if helpful to litigation strategy, does not meet this standard and waives the privilege.
Facts:
- Plaintiff Calvin Klein, Inc. (CKI) had an existing business relationship with the public relations firm Robinson Lerer & Montgomery (RLM) since September 1999.
- In May 2000, in anticipation of filing a lawsuit, CKI's law firm, Boies, Schiller & Flexner LLP (BSF), separately retained RLM.
- BSF retained RLM to act as a consultant and provide communications services in connection with the law firm's representation of CKI in the lawsuit.
- Plaintiffs asserted that RLM's purpose was to help counsel understand public reaction to the litigation and to responsibly manage the ensuing media crisis.
- RLM's services for BSF included reviewing press coverage, calling media outlets to comment on litigation developments, and identifying friendly reporters.
Procedural Posture:
- Plaintiffs, Calvin Klein Trademark Trust and Calvin Klein, Inc., initiated a lawsuit against defendants.
- During discovery, defendants sought to obtain documents from and depose an employee of Robinson Lerer & Montgomery (RLM), a non-party public relations firm hired by plaintiffs' counsel.
- Plaintiffs objected to the discovery requests, asserting that the communications and documents were protected by the attorney-client privilege and the work-product doctrine.
- Defendants filed a motion with the United States District Court for the Southern District of New York to compel the production of the documents and testimony.
- The District Court conducted an in camera review of the documents in question to resolve the discovery dispute.
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Issue:
Does the attorney-client privilege protect communications between a client's counsel and a public relations firm retained by counsel to provide media relations advice and strategy in connection with anticipated litigation?
Opinions:
Majority - Rakoff, District Judge.
No, the attorney-client privilege does not protect these communications. The privilege is waived when confidential client communications are disclosed to a third party unless that third party's presence is necessary for the attorney to render legal advice. Here, the privilege fails for three reasons. First, the documents do not primarily contain confidential communications from the client (CKI) for the purpose of obtaining legal advice; they are communications from a PR firm. Second, RLM was not acting as a 'translator' necessary for counsel to understand CKI's communications, as required under United States v. Kovel, but was instead providing ordinary public relations advice. Third, because evidentiary privileges stand in derogation of the search for truth, they must be narrowly construed; extending the privilege to a PR firm performing its ordinary functions would improperly broaden it. However, some documents reflecting counsel's own mental impressions and strategies, shared confidentially with RLM, are protected by the work-product doctrine, as sharing work product with a consultant does not automatically waive its protection.
Analysis:
This decision significantly clarifies the narrow scope of the attorney-client privilege when third-party consultants are involved in litigation. It reinforces the 'translator' or 'facilitator' test from Kovel, making it clear that a consultant's services must be essential for interpreting client communications, not merely for providing strategic advice related to the litigation's public impact. This case serves as a strong cautionary tale for attorneys, establishing that hiring a public relations firm through a law firm does not automatically cloak their communications in privilege. It forces a distinction between advice that enables the understanding of a client's situation (privileged) and advice on how to manage the public narrative of that situation (not privileged).
