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Attorney-Client Privilege Does Not Cover Communications With Outside Counsel Relating To Business Advice

The plaintiffs in a discrimination and retaliation suit sought production of communications between the employer’s outside counsel and its human resources department in order to examine the reasonableness of the employer’s remedial efforts. The employer objected, claiming that disclosure was barred under both the attorney-client privilege and the work-product doctrine.


Not so, ruled a federal judge in New York in Koumoulis v. Independent Financial Market-ing Group, Inc., No. 10-CV-0887 (E.D.N.Y 2014), who conducted an in camera review of disputed documents and ordered that they be produced to the employee.  The court ruled that the attorney-client privilege was inapplicable because (a) the predominant purpose of the communications was to provide advice on personnel and management decisions (e.g., whether the employer should conduct internal investigations and tactics for responding to employee complaints), rather than to render legal advice; (b) references to legal strategy or advice were isolated and limited in nature; and (c) plaintiffs established a substantial need for these communications.


The work-product doctrine likewise did not apply, the court ruled, because (a) the legal advice was given for the purpose of preventing litigation, as opposed to being in anticipation of litigation (which would have been protected); (b) the human resources advice would have been provided “even absent the spectre of litigation”; and (c) the advice was prepared and given in the ordinary course of business.