Kirkpatrick v. City of Oakland, California
- Jacquelyn Corley
- 3:20-cv-05843
- U.S. District Court · Northern District of California
- 3
In Kirkpatrick v. City of Oakland, Magistrate Judge Corley held that the challenged public-relations communications were protected from discovery.
Anne Kirkpatrick and the City of Oakland, California, in their discovery dispute over communications involving Kirkpatrick’s attorneys and public-relations consultant Sam Singer.
What happened
In Kirkpatrick v. City of Oakland, California, Anne Kirkpatrick objected to producing communications involving her attorneys and public-relations consultant Sam Singer. She argued that the communications were protected by attorney-client or work-product protection.
The court reviewed sample communications privately and found that all of them were protected. It concluded that the consultant assisted with anticipated litigation and that the public-relations purpose was part of the litigation strategy, so the communications remained protected from discovery.
Magistrate Judge Jacqueline Scott Corley also found that attorney Rocky Lucia was acting as Kirkpatrick’s attorney and that communications about the Special Master concerned litigation strategy. The order disposed of the discovery dispute filed at Docket No. 75.
The detailed version
- Kirkpatrick v. City of Oakland, California · No. 3:20-cv-05843
- Jacquelyn Corley
- Jan. 14, 2022
Background
The court considered a joint letter about Anne Kirkpatrick’s refusal to produce certain communications with public-relations consultant Sam Singer. The communications involved Kirkpatrick, attorney Rocky Lucia, attorneys from Keker, Van Nest and Peters (KVP), and Singer. The court conducted a private review of exemplar communications selected by the parties.
Legal standards
Federal law governed the privilege dispute. Kirkpatrick, as the party resisting discovery, had the burden of showing that the documents were protected and that the protection had not been waived.
The attorney-client privilege generally protects confidential communications made for legal advice. Disclosure to a third party, such as a public-relations consultant, ordinarily waives that protection, but disclosure does not waive the privilege when the third party’s involvement is necessary for the attorney to provide sound legal advice. The key question was whether the communications with the consultant were made for a legal purpose.
The work-product doctrine protects documents and tangible things prepared by or for a party or the party’s representative in anticipation of litigation. For documents serving both public-relations and litigation purposes, the court applied the “because of” test: the documents must have been created because of anticipated litigation and would not have been created in substantially similar form without the prospect of litigation.
Analysis and ruling
After reviewing the exemplar communications, the court found that all were protected by either the attorney-client privilege or the work-product doctrine. The communications showed that KVP retained Singer as early as February 2020 to assist with anticipated litigation. The court also found that, although some communications served a public-relations purpose, that purpose was part of a litigation strategy and could not be separated from the litigation purpose.
The court further found that Lucia was acting as Kirkpatrick’s attorney. His representation of the Oakland Police Officers Association did not prevent him from also having an attorney-client relationship with Kirkpatrick. Communications discussing the Special Master were likewise made as part of Kirkpatrick’s litigation strategy.
The order disposed of Docket No. 75. It did not state that the case itself was dismissed or otherwise terminated.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.