In Re Pacific Fertility Center Litigation

Background

Plaintiffs filed subpoenas directed to nonparties Sitrick & Co. and Krupp Communications. Defendants Pacific MSO and Prelude Fertility had retained those public-relations firms before and after the March 4 incident. Defendants possessed the subpoenaed documents and produced 101 documents while withholding 190 based on attorney-client privilege and the work-product doctrine. Plaintiffs challenged the attorney-client privilege assertion as to 17 documents.

The court ordered defendants to produce those 17 documents for private judicial review. After reviewing the parties’ submissions and the documents, the court addressed whether the communications remained protected when public-relations firms were included.

Legal standard

The court held that California law governed the privilege dispute. Under California law, attorney-client privilege protects confidential communications between a client and lawyer, including information shared with third parties only when their presence is reasonably necessary to transmit the information or accomplish the purpose for which the lawyer was consulted. The privilege is narrowly construed. When a privileged communication has been disclosed to a third party, the party claiming privilege must establish that the privilege still applies.

The court relied on California authority stating that communications involving a public-relations consultant may remain privileged if the consultant’s involvement is reasonably necessary, rather than merely useful or convenient, to obtain legal advice. The court also explained that the dominant-purpose test cited by defendants applied to a different setting involving communications between a corporation, its employee, and the corporation’s attorney; it did not resolve whether communications shared with an unaffiliated third party were privileged.

Analysis

Defendants argued that the communications were protected because the public-relations firms helped develop litigation strategy, including communications to patients and the media in anticipation of litigation. The court rejected that argument. The documents primarily concerned responding to news articles, managing media inquiries, managing patient communications, monitoring and predicting public reaction, and deciding how to present the incident and lawsuits to the public and press.

Although a few documents may have reflected discussions between the public-relations firms and counsel about responding to media inquiries in light of the lawsuits, the documents did not show that the firms’ involvement was necessary or essential to accomplishing the purpose for which defendants hired their attorneys. The court therefore concluded that including the third-party public-relations firms waived attorney-client privilege.

Disposition

The court ordered defendants to produce the 17 documents within one week of the order. The order states that it disposes of Docket Nos. 422 and 437.