Protecting Jury Consulting from Discovery1
Lawyers have used trial consultants to assist them in preparing for trial since the 1970s, taking it on faith that such reliance would be protected under either the attorney-client privilege2, attorney work product doctrine3, or both. Until relatively recently, that faith remained unchallenged. A general assault on the attorney-client privilege led by the federal government in the criminal context4, however, has also recently led to a broader attack on protecting the lawyer’s communication with non-testifying supporting consultants, such as trial consultants, public relations firms, and psychiatrists.
Attorney-Client Privilege
Under the traditional standard, attorney-client privileged information is limited to the exchange of information between a client and his or her lawyer, when that client is seeking lawful legal advice.5 The privilege belongs to the client, and only the client can authorize that the privilege be waived.6
The attorney-client privilege in the United States is derived from three different sources. First, the privilege is a rule of evidence that protects confidential communications between an attorney and his or her client, subject to certain exceptions and limitations.7
The privilege is also a common law protection whose roots go back to before the formation of the United States, and in the American legal system, is “the oldest of the privileges for confidential communications.”8
Attorney-client privilege continues to be shaped by common law since Congress has not codified the privilege, but rather only provided in Fed. R. Evid. 501 that courts have the power to protect the privilege. Judge Wyzanski’s four-part test in United States v. United Shoe Machinery Corp.9 remains the leading court case discussing the boundaries of the privilege. Finally, the privilege is shaped and governed by the rules of professional conduct set by state bar associations.10
The privilege, however, is not absolute.11 For example, when either the attorney or the client discloses the communication to a third party, the privilege is destroyed because the communication is no longer confidential. An exception to the rule that the privilege is lost when communications are disclosed to a third party was first stated in United States v. Kovel.12 In Kovel, the court found that the attorney-client privilege “must include all the persons who act as the attorney’s agents.”13 The court addressed the question of whether discussions with accountants hired by the attorneys in the case were protected or not.
The court set out a simple test: “If the advice sought is the accountant’s rather than the lawyer’s, no privilege exists.”14 Thus, in order to be protected, the client’s communications with a non-testifying consultant must be for the purpose of the consultant then assisting the attorney in rendering legal advice back to the client. This exception has been referred to as the “derivative privilege.”15 This functional test can best be stated as:
(1) Who retained the consultant?
(2) Why was the consultant retained?
(3) How has the consultant collected the relevant information to transmit to the lawyer?16
Since the privilege of communications from the client to an agent of the attorney is “derivative” of the client’s privilege to freely communicate with his or her attorney, most cases have found that the lawyer must retain the consultant.17 Likewise, when the consultant is retained by the lawyer to “translate” technical information so that the lawyer can then render advice to the client, courts protect the information under the privilege.18 Finally, courts distinguish between information a consultant receives from the client in confidence to prepare materials for the attorney and information independently collected from third parties. The former is generally protected under the privilege, while the latter generally is not.
Recent Cases
A search of the case law revealed no cases where the functional Kovel test has been applied to otherwise attorney-client privileged communications involving a trial consultant. Since most research studies are a combination of information provided by the client and data collected from study participants, it is the last distinction that makes it unclear whether the privilege protects jury consultant research.
Three recent federal cases in New York involving public relations firms, however, suggest that the functional test still applies, and probably extends to mixed-information situations. Although neither case directly addressed the mixed information issue, we can assume that the pubic relations firms used both information from the client and information gathered from third party sources in preparing their materials for the attorney.
Case 1
In In re Grand Jury Subpoenas Dated March 24, 2004, 265 F. Supp. 2d 321 (S.D.N.Y 2003),19 the court upheld the privilege. The court found that the attorney’s use of a public relations firm to influence public opinion about his client was part of the attorney’s tactics to prepare for trial. The client’s communications to the PR firm were necessary for the PR firm to help the lawyer craft public statements. Therefore, said the court, the PR firm was assisting the lawyer in rendering legal advice and the communications were privileged.
Case 2
On the other hand, in Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53 (S.D.N.Y. 2000)20, the court found that the privilege had been waived. Plaintiffs hired a public relations firm in advance of filing a lawsuit against a licensee. The court found that the PR firm’s work was not materially different from its previous work for plaintiffs and was no more than ordinary PR advice. The court also relied on the fact that the PR firm was hired directly by the plaintiff, and not the lawyer, as one of the key factors that destroyed the privilege.
Case 3
In Haugh v. Schroder Investment Mngmt. NA Inc.,21 the chairman of an investment firm was terminated from employment. When she was terminated, her employer presented her with a draft press release and separation agreement, but she declined to sign the agreement. Articles discussing the plaintiff’s termination appeared in industry publications.
The plaintiff, believing her employer had wrongfully terminated her because of her age, filed a charge with the EEOC, which issued a right-to-sue letter. Plaintiff’s attorney then retained a public relations consultant22 to help defend plaintiff against further media attacks he anticipated once his client filed suit.
The retention letter that plaintiff’s counsel sent to the PR consultant stated that she was retained to “provide us with advice to assist us in providing legal services to Ms. Haugh”; that the consultant would be paid by the law firm; and that “you further understand that our communications with you are confidential and privileged.”23
Despite the lengths to which plaintiff went to cloak the PR consultant’s work in the attorney-client privilege, the court applied the functional Kovel test to the facts of the case, looking to substance over form. The court found that plaintiff failed to prove that the PR firm provided anything more than standard public relations services. The court also found that plaintiff failed to show that the PR firm’s communications were necessary for the lawyer to provide his client with legal advice. Thus, stated the court, the attorney-client privilege did not apply.
Unlike in the Calvin Klein case, however, the court then analyzed whether the PR firm’s work could be protected by the work product doctrine. The court found that all of the documents prepared by the PR firm were entitled to protection under the work product doctrine because they were prepared by an agent of the attorney in anticipation of litigation. In addressing and dismissing defendants’ claim of “substantial need” to a single document, the court stated that since the document was drafted by counsel, even though later annotated by the PR consultant, it reflected the opinion work product of the attorney, which is absolutely protected.24
Work Product Doctrine
The work product doctrine protects material prepared by a client or the client’s lawyer that would otherwise be discoverable as long as the material was prepared in anticipation of litigation or for trial, unless the adverse party can show “substantial need” to the material and an inability to obtain equivalent material without “undue hardship.”25 Lawyers’ mental impressions, opinions, and strategies, however, are given nearly the same absolute protection as attorney-client privileged material.26
Evolution of the Doctrine
The doctrine has long been held to cover material created not only by the client and the attorney, but also by agents or representatives of the attorney.27 The attorney work product doctrine also evolved from the common law and initially was quite broad, covering literally any document that came into the possession of an attorney whether from a client or not.28
The modern-day work product doctrine was narrowed and circumscribed by the Supreme Court’s decision in Hickman v. Taylor, 329 U.S. 495 (1947). In Hickman, the Court explained that while the work product doctrine is distinct from, and broader than, the attorney-client privilege, the doctrine is limited to protecting “written statements, private memoranda and personal recollections prepared or formed by an [attorney] in the course of his legal duties” when the attorney is preparing with the thought of litigation.29 The doctrine is now codified in Federal Rule of Civil Procedure 26(b)(3) and Federal Rule of Criminal Procedure 16(a)(2).
When trial consultants are retained by the client or attorney in anticipation of litigation or to assist in preparing for trial, they are agents of the client or attorney. Therefore, their work is protected by the work product doctrine. Since the work done by trial consultants is nearly always providing an opinion, the protection should be nearly absolute.
Cendant Corp. Litigation
There is only one reported federal appellate court case that has addressed this issue. In In re Cendant Corp. Sec. Litig., 343 F.3d 658 (3rd Cir 2003), the court found that the use of a trial consultant met all of the criteria of Fed. R. Civ. P. 26(b)(3) and protected the consultant’s work under the work product doctrine.
At issue in the Cendant Corp. case was whether an Ernst & Young (E&Y) employee, Simon Wood, who had been prepared for trial by non-testifying expert trial consultant Dr. Philip McGraw could be compelled to disclose the communications.30 When asked at his deposition about preparation by Dr. McGraw, E&Y’s counsel objected and directed Woods not to answer, relying on the attorney-client privilege and attorney work product doctrine.
The matter was referred to a special master, who found that the communications were protected by the work product doctrine.31 The District Court reversed the special master, citing another district court case,32 to find that neither the attorney-client privilege nor the attorney work product doctrine applied.33
The District Court’s Opinion
The District Court said: “[W]ork product deals with things legal, things with preparation, evaluation, strategies, tactics and it is at first limited to lawyers and then will strictly or rigidly expand it, or restrictively expand it to include people such as paralegals and maybe assistants to lawyers because of their intimacy with the lawyer. The privilege is really that of the lawyers . . . because he or she has a right to tell his or her client certain things. But, when we go beyond that into a person who is not dealing with the law but telling someone how to prepare it as Blumenthal v. Drudge indicates, one of the questions where the lawyer was telling this witness what to do, it’s a question what this jury consultant [is] more or less telling that person what to do.
“Let me read from . . . the Blumenthal opinion . . . . ‘It is true that in some cases the attorney-client privilege may be extended to non-lawyers who are employed to assist the lawyer in the rendition of professional legal services. This extension of the privilege to non-lawyers, however, must be strictly confined within the narrowest possible limits consistent with the logic of its principle and should only occur when the communication was made in confidence for the purpose of obtaining legal advice from the lawyer. If what is sought is not legal advice or if the advice itself is the accountant’s rather than the lawyers, no privilege exists.’
“Here it appears that [the trial consultant] was retained for the value of his own advice, not to assist the defendant’s attorney in providing their legal advice, and the attorney has not carried the burden of demonstrating that the privilege applies.
“[W]e all know what a jury consultant does. He doesn’t come down and tell you in the case of Expert Z you have to blah, blah and you have to be careful of the countervailing opinion in B versus J. He or she says come on now, you’ve got to spruce up. You have to look this way and you never know what the jury may be composed of demographically . . . It’s not designed to augment. It’s not designed to substitute for legal advice. That’s not legal advice. That’s the cosmetic applied....” (quoting Blumenthal v. Drudge, 186 F.R.D. 236, 243 (D.D.C. 1999))
The Third Circuit’s Reversal
The Third Circuit reversed the District Court’s decision and held that the work product doctrine protected the communications between Wood and McGraw.34 The court stated that since it found the communications protected under the work product doctrine, it need not address whether they were also protected under the attorney-client privilege.35
Specifically, the Third Circuit held that “a litigation consultant’s advice that is based on information disclosed during private communications between a client, his attorney, and a litigation consultant may be considered “opinion” work product which requires a showing of exceptional circumstances in order for it to be discoverable.”36
The Third Circuit imposed the same functional test that the New York courts adopted in the attorney-client privilege context. The court relied on functional factors such as: (1) E&Y’s attorney’s retained the trial consultant; (2) the retainer included a confidentiality provision, so all of the participants involved had an expectation of protection from the start; (3) Dr. McGraw’s notes, conclusions, and mental impressions reflected E&Y’s legal theories since he was provided with documents by E&Y’s legal counsel in advance of preparing Wood; and (4) McGraw had discussions with E&Y’s counsel regarding legal strategy before preparing Wood.37
Additional Considerations
Interestingly, one of the three judges in the Cendant Corp. case was willing to extend the attorney-client privilege to trial consultant work as well, at least when the trial consultant was involved in witness preparation.
In a brief concurring opinion, Judge Garth stated that a trial consultant’s materials should also be protected under the attorney-client privilege when the client, attorney, and consultant are “engaged in contemporaneous and simultaneous discussions concerning the instant litigation.”38 Judge Garth’s reasoning should apply even more clearly to research studies such as theme development studies and oral persuasion studies, where the trial consultant is “intended by the client to be a confidential part of the relationship with counsel.”
It should be noted that in at least one unreported state court order, a trial consultant was ordered to provide limited information that should have come within the attorney-client privilege or work product doctrine under the case law set out above. A state court in Washington ordered the deposition of Amy Hanegan, head of Better Witnesses, a trial consulting firm in Seattle, who had been hired to work with a defendant in a medical malpractice case (Adkins vs. Elliott, No. 02- 2-15703 KNT (2003)).39
Noted trial attorney Paul Luvera also sought to take the deposition of Angela Dodge, a Washington trial consultant who was hired by the city of Tacoma, Washington, in its defense of a $75 million wrongful death suit filed by the family of Crystal Brame (Brame vs. City of Tacoma, No. 04-2- 00712-7 KNT (2003)).
The limited intrusion into the protections allowed by the Washington court and the caveats from the public relation firm cases should be heeded when retaining a trial consulting firm. Thus, the law firm, not the client, should retain the trial consultant, and the retainer letter should make it clear that the consultant is a non-testifying expert retained to assist in providing legal advice. All materials exchanged between the lawyer and the consultant should be marked “Confidential and Privileged” to give the lawyer the best chance of later asserting the protections if necessary. When the law firm and the consultant proceed in this manner, the lawyer will have the best chance of ensuring the jury consultant’s research is protected from disclosure.
Endnotes
1. The material appearing in this article is for informational purposes only and is not legal advice. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. The information provided is intended only as general information, which may or may not reflect the most current developments. Although these materials may be prepared by professionals, they should not be used as a substitute for professional services.
2. The purpose of the attorney-client privilege is to allow and encourage the client to freely and candidly provide the attorney with information without fear of disclosure to third parties. The more information the client provides, the better able the attorney is to provide the most competent legal advice and best represent the client’s interests. See, e.g., Paul R. Rice, “Attorney-Client Privilege in the United States” §§ 1:1-1.3 at 6-14 (2nd Ed. 1999).
3. The doctrine allows attorneys to prepare their cases for trial without having to be concerned that their work product will be used against their clients. The doctrine also allows attorneys maintain a degree of privacy that encourages all attorneys to act ethically. The doctrine, first set out in Hickman v. Taylor, 329 U.S. 495 (1947), is now codified in Federal Rule of Civil Procedure 26(b)(3) and Federal Rule of Criminal Procedure 16(a)(2).
4. See “The Erosion of the Attorney-Client Privilege and Work Product Doctrine in Federal Criminal Investigation,” American College of Trial Lawyers, March 2002. (The College report finds that “the attorney-client privilege and work product doctrine are being eroded in federal criminal investigations and prosecutions in a way inimical to the fair administration of justice.” Id. at p.1). “The ABA Task Force on Attorney-Client Privilege Report and Recommendations” as adopted can be found online at: http://www.abanet.org/buslaw/attorneyclient/home.shtml.
5. See, e.g., United Shoe, Upjohn v. United States, 449 U.S. 383 (1981).
6. “Restatement (Third) of Law Governing Lawyers” §§ 123, 124 (2000).
7. See Fed. R. Evid. 501.
8. John Henry Wigmore, “Evidence in Trials at Common Law” §2290, at 542 (McNaughton Rev. 1961).
9. F. Supp. 357 (D. Mass. 1950).
10. See, e.g., “Model Code of Professional Responsibility” DR 4-101(B) (1969) and the “Model Rules of Professional Conduct” Rule 1.6 (1995).
11. See, e.g., “Restatement (Third) of Law Governing Lawyers” §§ 123,124 (2000).
12. 296 F.2d 918 (2d. Cir. 1961).
13. Id. at 921.
14. Id. at 921.
15. Epstein, Edna, “The Attorney-Client Privilege and the Work-Product Doctrine” (3rd Edition), ABA 1997, at p. 110.
16. Id.
17. Compare United States v. Schwimmer, 892 F.2d 237 (2d Cir. 1989) (information given to an accountant hired by a co-defendant’s lawyer held to be privileged) with United States Postal Service v. Phelps Dodge Ref. Corp., 852 F. Supp. 156 (E.D.N.Y. 1994) (information collected directly from client by an engineering firm)
18. See, e.g., United States v. Cote, 456 F.2d 142 (8th Cir. 1972). The court protected information given to accountants retained by tax lawyer before the lawyer gave advice. The court stated its decision would have been the opposite if the lawyer gave the advice first and then hired the accountant to verify the calculations.
19. In this case, the court went to great lengths not to disclose the names of the parties involved, referring to the target of the grand jury as the "Target," the Target’s former employer as the "Company," and the public relations concern as the "Firm." Readers were even cautioned not to draw any conclusions from the gender of the pronouns used in the opinion. Since this case, defense attorneys representing high-profile criminal defendants have been open about retaining public relations firms to assist them and relying on the privilege. For example, when the federal government indicted former Milberg Weiss Hynes Bershad & Lerach name partner William Lerach in August 2005, Lerach hired Keker & Van Nest's John Keker, one of the country's top trial lawyers. Keker then hired Chris Lehane – a former spokesman for Bill Clinton, Al Gore, and John Kerry – to provide public relations efforts on behalf of Lerach to assist in Keker’s defense of Lerach.
20. See also American Legacy Found. v. Lorillard Tobacco Co., 2004 Del. Ch. LEXIS 157 (Del. Ch. Nov. 3, 2004) (holding that Wilmer Cutler's client had waived the privilege by sharing the law firm's advice with its public relations firm).
21. 2003 U.S. Dist. LEXIS 14586 (S.D.N.Y. Aug. 25, 2003).
22. Laura Murray, who also happened to be a lawyer licensed to practice in Texas.
23. 2003 U.S. Dist. LEXIS 14586; pp. 1-3.
24. Id. at 16.
25. See, for example, Fed.R. Civ. P. 26(b)(3). Although "factual" work product may be discoverable upon a showing of substantial need for the information sought, the protection afforded to "opinion" work product – which reflects counsel's subjective beliefs, impressions, and strategies regarding a case – is nearly absolute. See, e.g., In re Sealed Case, 676 F.2d 793, 809-10 (D.C. Cir. 1982), ("To the extent that work product reveals the opinions, judgments, and thought processes of counsel, it receives some higher level of protection, and a party seeking discovery must show extraordinary justification.")
26. See, e.g., Hickman v. Taylor, 329 U.S. 495, 511 (1947).
27. See Hickman v. Taylor, 329 U.S. 495 (1947), and Fed R. Civ. P. 26(b)(3) which provides that documents "prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative" are protected.
28. See WIGMORE §2318, at 620-621.
29. Id. at 510.
30. Wood was a former Ernst & Young financial senior manager who prepared the financial statements at issue in the litigation. Cendant Corporation and Ernst & Young were co-defendants in a federal class-action securities case alleging accounting fraud against Cendant. The class-action case settled, but claims between Cendant and Ernst & Young continued, and the deposition was part of the latter case.
31. 343 F.3d at 660.
32. Blumenthal v. Drudge, 186 F.R.D. 236, 243 (D.D.C. 1999).
33. 343 F.3d at 660-1.
34. 343 F.3d at 661.
35. Id. at 661, n.4.
36. Id. at 663.
37. Id. at 667.
38. Id. at 668.
39. The deposition was sought by noted trial attorney Paul Luvera. His discovery motion was targeted at finding out how much the consultant was paid and whether she suggested changing the witness’s demeanor and appearance. Luvera argued that this basic information was not protected by the attorney work-product privilege.