The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Brummer v. Wey, 2020 WL 3494657, decided by Judge Lucy Billings on Jan. 17, but just posted on Westlaw:
[D]efendants [Benjamin] Wey and NYG Capital move to compel production of 33 documents that plaintiff [Prof. Christopher Brummer] and FINRA [the Financial Industry Regulatory Authority] claim are protected from disclosure … as attorney work product or … as material prepared in anticipation of litigation. FINRA's privilege log further characterizes the subject of eight withheld documents as "mitigation of litigation risks arising out of public statements concerning anticipated litigation." …
[T]he documents … are … proposed strategies by a public relations firm and comments by plaintiff and FINRA on those strategies, for plaintiff and FINRA to counteract and thus mitigate damages from the defamatory statements concerning plaintiff on the internet, [arising] from his work with FINRA, about which he sues. That defamation, not this litigation or its anticipated commencement, prompted this public relations campaign. Depending on defendants' future conduct, the firm, APCO Worldwide, proposed as part of the campaign the creation of new, readily searchable online text and images positively portraying plaintiff, unrelated to the litigation.
Of course when plaintiff anticipated commencing this litigation, he, his attorneys, and APCO Worldwide anticipated that he might need to respond to inquiries about the litigation or respond to retaliatory defamation by defendants and might use the litigation as another opportunity to explain and counteract the defamation. If other media portrayed the underlying facts or the litigation inaccurately, APCO Worldwide proposed to correct and halt the spread of misinformation.
Consequently, plaintiff's attorneys were kept abreast of the proposals, to advise APCO Worldwide and plaintiff in the event the proposals might negatively impact the litigation or expose plaintiff to liability for any statements by him about defendants: hence the label, "mitigation of litigation risks arising out of public statements concerning anticipated litigation." The documents reveal no such event, however, nor any advice by plaintiff's attorneys, other than their concern that they be kept abreast.
While the work product protection may extend to an attorney's information, impressions, or observations conveyed to experts retained as consultants to assist in analyzing or preparing plaintiff's action, the documents at issue thus show that the attorneys conveyed no such information, impressions, or observations, nor did APCO Worldwide assist in analyzing or preparing plaintiff's action. The documents include no communications by attorneys that are the product of their legal training or skills or that reflect any legal research, analysis, theory, strategy, or conclusion. Their occasional communications reflect only their desire to be apprised of APCO Worldwide's, plaintiff's, or FINRA's proposed public relations strategies in the event they called for the attorneys' input. To the extent that any FINRA attorney offered public relations advice, it was only public relations advice, not legal advice. Therefore the documents include no attorney work product.
The documents also make abundantly clear that they were not prepared primarily for purposes of the litigation, but to mitigate the damage to plaintiff's reputation, rehabilitate his reputation, and assure that his communications in an effort at mitigation would not instead call more attention to the claimed defamatory statements and amplify the harm from them. Defendants are entitled to this relevant information regarding plaintiff's efforts to mitigate the past and future effects of the claimed defamation and any communications that might reveal the impact of the defamation on plaintiff's reputation and his mental and emotional condition, whether minimal or severe.
Relevance of the material to the litigation does not equate to material prepared in anticipation of litigation. The latter is material regarding how plaintiff intends to prove his mitigation of damages, not the facts regarding his mitigation of damages. Even his strategies as to how he communicates to his professional community or the public and to whom he communicates about the claimed defamation and whether his communications call attention to the defamation and enhance rather than mitigate his damages still bear on mitigation and do not amount to strategies as to how he will plead or prove defamation, damages, or their mitigation.
In sum, APCO Worldwide's advice to plaintiff and FINRA and their comments on that advice, which they shared with their attorneys, but to which the attorneys did not contribute, was to assist plaintiff in his public relations strategy, not in his litigation strategy, in rehabilitating his reputation, and in mitigating his damages. At most, APCO Worldwide provided plaintiff advice regarding how to communicate about the litigation so as not to enhance his damages, but not how to prepare, present, or support his claims in the litigation so as not to enhance his damages or for any other purpose in the litigation….
Readers might recall this case from when an appellate court reversed an injunction against defendant's publishing "images depicting … lynching in association with plaintiff." The underlying defamation damages lawsuit, though, continues.