During discovery, plaintiff America’s Test Kitchen moved to compel production of documents withheld under a claim of attorney-client privilege. The defendants had withheld certain communications with an outside consultant to their business – CPK Media, LLC – regarding legal advice sought by the LLC.
Judge Salinger granted the motion to compel, finding that defendants failed to show that the consultant was “the functional equivalent of an employee who could share or participate in communications about legal advice without thereby waiving any otherwise applicable privilege.”
Where an outside consultant to a business is the functional equivalent of an employee, and plays a ‘pivotal role’ in matters as to which the business contains legal advice from an attorney, the attorney-client privilege is not lost because the consultant is involved in, copied on, or becomes privy to these communications.
Here, the evidence presented showed that the consultant advised defendants to consult with a lawyer. However, that was not enough to show “that CPK Media needed to gather information from [the consultant] in order to obtain legal advice, that CPK had some need to share confidential legal advice with [him], or that [he] was a necessary agent in seeking or implementing legal advice for any other reasons.” Judge Salinger determined that the “mere fact that [the consultant] directed defendants to a particular lawyer does not mean that his communications about that legal representation are protected by the attorney-client privilege.”
America’s Test Kitchen Inc. v. Kimball, et al. (March 30, 2018)
- Senior Editor, Co-Chair, Business Litigation Practice Group