## Facts

- Purchasers sued entities associated with Sumitomo, alleging a conspiracy to manipulate global copper prices in a multi-district antitrust proceeding.
- After revelations of unauthorized copper trading and the prospect of regulatory investigation and civil litigation, Sumitomo retained Robinson Lerer & Montgomery (RLM), a crisis-management public-relations firm, to manage publicity related to the trading scandal.
- Sumitomo lacked experience with high-profile Western media and had language and cultural barriers; RLM served as an external communications function for English-language press matters.
- RLM worked closely with Sumitomo’s U.S. and Japanese counsel to coordinate public statements and media strategy in a manner intended to avoid harming Sumitomo’s legal position in anticipated and ongoing proceedings.
- Plaintiffs served a Rule 45 subpoena on RLM in the Southern District of New York seeking documents relating to RLM’s public-relations work for Sumitomo.
- RLM produced some documents but withheld others listed on a privilege log, asserting attorney-client privilege and work-product protection.
- RLM inadvertently produced certain documents it claimed were privileged and sought return of those materials; plaintiffs argued the production waived protection.

## Issues

1. Whether attorney-client privilege covers communications among a client, its attorneys, and a retained public-relations firm when the communications were intended to be confidential and were made to obtain or facilitate legal advice concerning publicity during litigation or regulatory proceedings.
2. Whether work-product protection applies to documents created by or for a non-lawyer public-relations consultant when prepared because of anticipated or ongoing litigation.
3. Whether inadvertent production of privileged materials in subpoena compliance waived attorney-client privilege or work-product protection.
4. Whether disclosure of privileged communications to the public-relations firm constituted waiver by sharing with a third party.

## Decision

- The court denied plaintiffs’ motion to compel production of the withheld documents.
- It held that attorney-client privilege protected qualifying communications involving RLM because RLM’s participation was necessary, or at least highly useful, for effective attorney-client consultation regarding legally sensitive public communications.
- It held that work-product protection applied to RLM materials prepared because of anticipated and ongoing regulatory and civil proceedings, even though RLM was not a law firm.
- It found no waiver from inadvertent production, given reasonable screening precautions and prompt efforts to rectify the disclosure.
- It rejected waiver based on disclosure to RLM, treating RLM as an agent involved in facilitating counsel’s provision of legal advice.

## Legal Principles

- Attorney-client privilege protects confidential communications between client and counsel made for the purpose of obtaining or providing legal advice; inclusion of a third party does not defeat privilege when the third party functions as an agent whose participation is necessary or highly useful to the legal advice process.
- A public-relations consultant can fall within the privileged relationship when retained in connection with litigation or anticipated proceedings and integrated with counsel’s efforts to manage legally consequential communications.
- Work-product protection extends to materials prepared by a party or its representative, including non-lawyer consultants, when created because of the prospect of litigation.
- Inadvertent disclosure does not necessarily waive privilege or work-product protection; courts assess reasonableness of preventive measures, speed of remediation, scope of production, extent of disclosure, and fairness.

## Conclusion

The court upheld privilege and work-product claims for litigation-related communications involving a crisis-management public-relations firm that assisted counsel in managing legally sensitive publicity, and it ruled that inadvertent production, promptly addressed after reasonable precautions, did not waive protection.


In re Copper Mkt. Antitrust Litig., 200 F.R.D. 213 (S.D.N.Y. 2001)