Flynn v. Cable News Network, Inc.
- Sarah Cave
- 1:21-cv-02587
- U.S. District Court · Southern District of New York
- 7
Flynn v. Cable News Network, Inc.: Magistrate Judge Cave ordered CNN to produce 24 emails while upholding privilege assertions over other emails.
The Flynns obtain 24 specified emails, while CNN must produce those emails and may continue withholding the emails for which the court upheld attorney-client privilege.
What happened
In Flynn v. Cable News Network, Inc., John P. “Jack” Flynn and Leslie A. Flynn challenged CNN’s withholding or redaction of emails based on attorney-client privilege, a rule protecting confidential legal-advice communications.
After reviewing the emails privately and holding conferences with the parties, the court found that about half involved legal advice and did not have to be produced. It found that other emails, where CNN’s in-house attorney was merely copied, were not shown to be for obtaining or providing legal advice.
Magistrate Judge Sarah L. Cave ordered CNN to produce 24 specified emails to the Flynns by December 9, 2022, while upholding CNN’s privilege assertions over the remaining emails at issue.
The detailed version
- Flynn v. Cable News Network, Inc. · No. 1:21-cv-02587
- Sarah Cave
- Dec. 5, 2022
Background
John P. “Jack” Flynn and Leslie A. Flynn sued Cable News Network, Inc. over a report that they alleged falsely called them QAnon followers. The opinion states that their remaining claim was a false-light claim under Rhode Island law. During discovery, the Flynns challenged CNN’s withholding or redaction of emails on attorney-client privilege grounds. CNN said the emails involved legal advice from Steve Kiehl, an in-house CNN attorney, concerning the report.
The parties disputed several categories of emails, including emails in which Kiehl was not involved, emails with limited redactions, and emails on which Kiehl was copied. CNN explained that the report’s script was reviewed by an attorney, editorial staff, and the standards-and-practices department. The court held two discovery conferences and reviewed the challenged emails privately.
Legal standard
The attorney-client privilege protects confidential communications made for the purpose of seeking or providing professional legal advice. In a corporate setting, the privilege can protect communications in which an employee sought or acted on legal advice concerning the employee’s work. The party asserting the privilege must establish that the privilege applies and was not waived. The court applied Rhode Island privilege law because that law applied to the Flynns’ claims.
Ruling
The court upheld CNN’s privilege assertions as to approximately half of the emails. It found that those communications reflected communications on which Kiehl was copied for the purpose of obtaining or discussing legal advice, so they did not have to be produced.
The court rejected CNN’s privilege assertions as to emails on which Kiehl was merely copied. After reviewing those emails, the court found that neither their contents nor CNN’s arguments established that they were made to obtain or provide legal advice. The court also stated that CNN could redact privileged emails appearing within the same document when producing the specific email required by the order.
Magistrate Judge Sarah L. Cave ordered CNN to produce Emails Nos. 5, 10, 11, 13, 14, 16, 22, 23, 26, 28, 29, 32, 33, 34, 35, 36, 37, 48, 49, 74, 81, 84, 85, and 86 by Friday, December 9, 2022. The court directed the clerk to close the Flynns’ discovery challenge.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.