Resolute Forest Products, Inc. v. Greenpeace International

Background

The case concerns Resolute’s defamation claims based on statements made in December 2016 and May 2017 about Resolute’s operations in the Montagnes Blanches forest. The discovery dispute involved documents held by Counterpoint, a public-relations firm. Resolute claimed attorney-client privilege and work-product protection for those documents.

The opinion states that the case originally included claims under the Racketeer Influenced and Corrupt Organizations Act and a defamation claim with a related California Unfair Competition Law claim. The RICO claims had been dismissed with prejudice, leaving the defamation and UCL claims. The court therefore treated diversity jurisdiction as the remaining basis for jurisdiction.

Attorney-Client Privilege

The court applied California statutory law to the attorney-client privilege issue because the remaining case was based on diversity jurisdiction. Under California law, communications shared with a third party are protected only when they remain confidential and the third party’s involvement was reasonably necessary to accomplish the purpose of obtaining legal advice. The court explained that “reasonably necessary” means more than useful or convenient; the third party must be nearly indispensable or serve a specialized purpose in facilitating attorney-client communications.

Resolute said Counterpoint assisted with litigation strategy, analyzed Greenpeace’s claims, gathered information, prepared preliminary drafts, and helped counsel obtain information for legal advice. The court concluded that some of these activities appeared to involve public-relations or media strategy, which is not covered by attorney-client privilege. Although other activities involved legal strategy and analysis, Resolute did not show that Counterpoint was essential to communication between Resolute and its attorneys. The court therefore found that the privilege did not protect communications involving or shared with Counterpoint under California law.

The court also concluded that Resolute would not qualify for attorney-client privilege under federal common law. Resolute argued that Counterpoint was a corporation’s “functional employee,” meaning an outside worker so closely integrated into the company that communications with the worker can fall within the privilege. The court found that Resolute identified no facts showing that Counterpoint worked so closely with it that the firm was effectively an employee. The court also noted that it was unclear who hired Counterpoint and that the firm appeared to advise counsel about legal and media strategy rather than act as Resolute’s sole representative. The court therefore found no attorney-client privilege under federal common law either.

Work Product

The work-product doctrine is a federal protection for documents and tangible materials prepared in anticipation of litigation. The court explained that public-relations work is generally business strategy rather than legal strategy and is not protected merely because a lawyer requested it, received it, or considered it relevant to litigation.

The court identified examples that appeared to concern public-relations work, including gathering information for responses to Greenpeace’s claims, developing drafts intended to limit Resolute’s economic harm, creating video concepts or scripts, selecting clips for approval, monitoring media, and referring to media articles and social media. Such materials would not qualify as work product if they were created for media or public-relations purposes rather than for legal preparation.

The court distinguished those materials from documents analyzing Greenpeace’s statements, preparing litigation strategy, or helping counsel obtain information for legal advice. Those documents might qualify as work product if they were prepared at an attorney’s direction or provided to an attorney in anticipation of litigation.

Ruling

The court ordered Counterpoint to produce all documents withheld under the work-product doctrine to the extent they were not prepared in anticipation of litigation. The order specifically included documents produced as part of a media or public-relations strategy, even when they were tangentially related to the litigation. Counterpoint was ordered to produce the documents within fourteen days, and the court stated that the order disposed of Discovery Letter No. 13, Docket No. 432.