## Facts

- Thousands of plaintiffs brought product-liability claims against Bausch & Lomb, alleging its contact lens solution, ReNu with MoistureLoc, was contaminated and caused serious eye infections, including Fusarium keratitis.
- The litigation proceeded in coordinated federal-state proceedings as part of a multidistrict litigation in the U.S. District Court for the District of South Carolina, with New York privilege law applied to the disputed discovery.
- Because the product issues drew heavy public and regulatory attention, Bausch & Lomb retained the public-relations firm Hill & Knowlton to advise on public communications about the product and the recall.
- During discovery, plaintiffs sought internal communications. Bausch & Lomb withheld certain emails involving senior executives and in-house counsel, Robert Bailey (the company’s vice president and general counsel), and listed them on a privilege log as attorney-client privileged.
- Some of the logged emails were shared with, or copied to, Hill & Knowlton personnel and concerned drafts of statements to consumers, media, and regulators (including communications connected to the FDA), created during the period of anticipated or ongoing litigation.
- Plaintiffs argued that distributing the emails to an outside PR firm destroyed confidentiality and waived any attorney-client privilege.
- The court appointed a special master to review the challenged documents and decide whether the privilege claims should be sustained.
- The special master concluded that most of the contested emails remained privileged despite Hill & Knowlton’s involvement, because many communications sought Bailey’s legal advice about what the company could or should say publicly in light of legal exposure.
- Plaintiffs objected to the special master’s determinations, requiring the district court to decide whether the privilege was properly applied and whether it was waived by inclusion of the PR consultants.

## Issues

1. Whether, under New York law, Bausch & Lomb waived attorney-client privilege over emails seeking corporate counsel’s legal advice by sharing those communications with outside public-relations consultants.
2. Whether the contested emails were privileged in the first place—i.e., whether they were primarily for obtaining or providing legal advice, as opposed to routine business or public-relations communications.

## Decision

- The court largely upheld the special master’s determinations that many of the emails were protected by attorney-client privilege.
- The court rejected a categorical rule that copying or routing a communication to an outside PR firm automatically waives privilege under New York law.
- The court accepted that, in the context of a major product recall and related litigation risk, a PR consultant may function as an agent assisting counsel, so that counsel can give legal advice about public and regulatory communications.
- The court required a document-by-document analysis focused on the purpose of each communication and whether it reflected a request for, or provision of, legal advice.
- To the extent particular emails were primarily public-relations or business communications rather than legal communications, the privilege did not apply and those documents had to be produced.
- Procedurally, the court sustained the special master’s privilege rulings in substantial part and required production only of the limited set of documents found not to qualify for attorney-client privilege.

## Legal Principles

- Under New York law, attorney-client privilege protects confidential communications between attorney and client made for the purpose of obtaining or providing legal advice.
- Disclosure to a third party generally defeats confidentiality and can waive privilege, but New York recognizes that certain third parties may be included without waiver when they are acting as agents assisting the lawyer-client relationship and their involvement supports counsel’s ability to give legal advice.
- Privilege turns on the character and purpose of the communication: emails directed to legal review of proposed public statements or regulatory communications in light of litigation risk can qualify, even if communications planning is also discussed.
- Privilege does not protect communications whose primary purpose is business, marketing, or image management, even if a lawyer is copied or involved.
- Courts assess mixed communications individually rather than by blanket categories, separating protected legal advice from non-protected public-relations or business content where necessary.

## Conclusion

In this discovery dispute arising from the ReNu with MoistureLoc MDL applying New York law, the court held that involving Hill & Knowlton in communications did not automatically waive attorney-client privilege where the emails primarily sought or conveyed the general counsel’s legal advice about public and regulatory statements during a recall and litigation crisis; however, communications that were mainly public-relations or business discussions were not privileged and were ordered produced.


In re New York ReNu with MoistureLoc Product Liability Litigation, 2008 WL 2338552 (2008)