Privilege Does Not Cover Communications with Outside Counsel Relating to Business-Related Advice, E.D.N.Y. Holds

Koumoulis v. Independent Financial Marketing Group, Inc., No. 10-CV-0887 (E.D.N.Y Jan. 21, 2014): A federal district court judge narrowly applied the attorney-client privilege and work-product doctrine by granting the production of documents in an employment discrimination and retaliation case where, following in camera review, the advice by outside counsel was business-related and not legal. The suit was brought by current and former employees who alleged that their employer discriminated against them based on their religion, ethnicity, disability, and age. The plaintiffs sought production of communications between the employer’s outside counsel and its human resources department. However, the court held that the attorney-client privilege was inapplicable because the predominant purpose of the communications was not to render legal advice; instead, the purpose was to provide advice on personnel and management decisions, such as whether the employer should conduct internal investigations and tactics for responding to employee complaints. The court held that any references to legal strategy or advice were isolated and limited in nature, and that the plaintiffs established a substantial need for these communications to examine the reasonableness of the employer’s remedial efforts. In addition, the court held that the work-product doctrine did not apply because the discussion of human resources advice would have been provided “even absent the specter of litigation” and was prepared in the ordinary course of business. The court also held that legal advice given for the purpose of preventing litigation, as opposed to being in anticipation of litigation, is insufficient to obtain work-product protection. The case serves as a reminder to employers that not all communications with counsel will per se be deemed protected under the attorney-client privilege and work-product doctrine. Employers and outside counsel should therefore remember to be explicit in stating that they are seeking and providing legal advice in anticipation of litigation.