Fast Take: Application of Privilege to Consultants to Corporations Raises Questions (Part II)

In a previous article on p. 17 of the May/June 2018 issue, I summarized two recent cases in which courts held that communications between corporations and their consultants were not subject to attorney-client privilege. However, some cases take a more favorable view.

For example, in FiberLight, LLC v. Washington Metropolitan Area Transit Authority (2018), the defendant hired a consultant to analyze current and potential future development of its fiber optic system. The plaintiff, alleging breach of contract, sought the consultant’s report to the defendant, challenging the defendant’s redaction of the section entitled “Legal Concerns.” In a one-paragraph analysis, the court confirmed after its in camera review that the redacted portion “reflects the views of [the defendant’s] legal counsel regarding potential legal issues.” The court then upheld the redaction, explaining that “the sharing of such privileged information with a consultant who needs that information in order to complete a project for the company does not constitute a waiver of the privilege.” Although this represents the minority view, corporations and their lawyers should check the applicable court’s privilege law for such helpful precedent.