The upshot is that law on the protection of communications involving PR firms is still somewhat muddled. There are, however, a few precautions to consider when hiring a PR form to help with litigation. Consider clarifying from the start that: (i) the PR firm is performing a role that the company does not have the capability to perform on its own; (ii) the PR firm’s role is related to anticipated or ongoing litigation; and (iii) the PR firm will, as part of its role, assist and work with litigation counsel. Good luck!
We saw another decision, A.H. v. Evenflo Co., 2012 U.S. Dist. LEXIS 76100 (D. Colo. May 31, 2012), addressing whether communications involving public relations firms can be protected by the attorney-client privilege. This is an issue that we’ve discussed in the past, and that involves some uncertainty, particularly as to whether the likelihood that communications will be protected is greater if the client retains the PR firm or, instead, the lawyers do.
The Evenflo decision doesn’t directly address this question. It focuses on the functional role of the PR firm, not who hired them. But, nonetheless, the court upheld the privilege for communications involving a PR firm that was hired by the company, not the lawyers, to help the company deal with a product recall.
The court based its decision on something called the “functional equivalence” test, which certain courts have used to decide whether a third-party, such as a PR firm, has a role equivalent to that of an employee of the company:
Before application of the attorney-client privilege will be extended to non-employees, however, the party asserting the privilege must make a detailed factual showing that the non-employee is the functional equivalent of an employee . . . .
Id. at *13-14. The court pointed to three criteria for this test, which are set out in a 2005 SDNY decision:
(1) whether the consultant had primary responsibility for a key corporate job, (2) whether there was a continuous and close working relationship between the consultant and the company’s principals on matters critical to the company’s position in litigation, and (3) whether the consultant is likely to possess information possessed by no one else at the company.
Id. at *9-10 (quoting Export-Import Bank v. Asia Pulp & Paper Co., Ltd., 232 F.R.D. 103, 113 (S.D.N.Y. 2005) & citing LG Electronics U.S.A., Inc. v. Whirlpool Corp., 661 F. Supp.2d 958, 962 (N.D. Ill. 2009) (adopting the functional equivalence test))
But the court didn’t explicitly apply these criteria to the facts, at least not in its written opinion. But it did appear to be influenced by the fact that the company had no internal public relations department that could handle the duties that the public relations firm was hired to handle. Id. at *11-12. That fact alone would seem to satisfy all three of the test’s criteria, as the PR form would have primary responsibility for critical matters related to the litigation and posses information that no one else would have.
Of course, being the “functional equivalent” of an employee is not enough to protect communications. The communication must still satisfy the general requirements of a privileged communication – e.g., being made for the purpose of legal advice, within the scope of the PR firm’s duties, and with proper confidentiality safeguards. Id. at *13. But if those requirements are met, the communication would be protected.
Now, the Evenflo court didn’t say that this is the only way that communications involving an outside consultant, such as a PR firm, can be protected. In some cases and in some courts, such communications may be protected as work product. See, for instance, the SDNY decision in In re: Copper Market Antitrust Litig., 200F.R.D. 213, 220-21 (S.D.N.Y. 2001), in which the court granted work product immunity to materials created in anticipation of litigation by an outside PR firm. Or some communications may be protected if the third-party is necessary to facilitate effective communication between the third-party and the company, see, e.g., id. at 219-220, though it might be difficult to fit a PR firm’s role into this category.