In a discovery dispute, a federal judge from the District of New Jersey has sided, for the most part, with the class action plaintiffs who are suing Riddell for the allegedly false claims the helmet maker made about one of its products.
The legal battle centered on the plaintiffs’ challenge of 272 documents, which Riddell claimed were protected by the attorney-client privilege and other protections.
The court concluded that “most of Riddell’s documents are not privileged (because they) do not reflect any legal analysis, opinions or advice, and are merely routine business correspondence.”
The underlying legal dispute involved plaintiffs, who purchased Riddell’s Revolution football helmets between 2007 and the present day. The plaintiffs sought the return of the “price premium” they allegedly paid for the helmets because of their alleged concussion reduction capabilities. “The crux of the plaintiffs’ case is the claim that Riddell’s Revolution helmets offered no greater protection against concussions than other helmets and, therefore, the price premium they paid should be reimbursed,” wrote the court. “The plaintiffs claim Riddell’s use of the terms ‘concussion reduction technology’ or ‘CRT’ was false and misleading. Riddell denies all liability allegations.”
The documents in question “primarily concern communications between and among Riddell’s employees, including an occasional in-house and outside counsel, and Riddell’s outside public relations (PR), marketing, crisis management and/or ‘messaging’ consultants.”
The court further noted that there are “two regularly occurring vexing issues” associated with the legal analysis.
“One, whether emails exchanged among corporate employees are privileged even though they are not sent to or received from an in-house corporate attorney. Two, whether corporate emails copied to in-house counsel touching on legal issues are privileged if they also contain mixed discoverable business information.”
In its analysis, the court focused on the Attorney-Client Privilege, how it applies to in-house counsel; how it applies in situations where only some of the communication is legal in nature; and whether it is applicable in communications between Riddell employees that do not involve an attorney, or between Riddell employees and third-party agents.
The court promptly resolved the first question that the privilege, in general, is applicable to in-house counsel.
As for mixed communications, the court noted the following “relevant factors” to consider, including: “(1) the context of the communication and the content of the document; (2) whether the legal purpose permeates the document and can be separated from the rest of the document; and (3) whether legal advice is specifically requested and the extent of the recipient list. Phillips v. C. R. Bard, Inc., 290 F.R.D. 615, 629 (D. Nev. 2013). Judicial scrutiny should focus on the nature of the relationship between in-house counsel and others and the type of information or communication involved. United Jersey Bank v. Wolosoff, 196 N.J. Super. 553, 563, 483 A.2d 821 (App. Div. 1984).”
The court elaborated on the current situation.
“Frankly, the Court is hard pressed to decipher any legal advice or purpose” in the documents. “To the extent the content of Riddell’s documents may touch on legal issues, which the court does not find, the documents are not privileged because it is plain the predominant purpose of the communications was to address business and not legal concerns. The attorney-client privilege protects disclosures to obtain legal advice, which might not be made absent the privilege. Westinghouse Elec. Corp., 951 F.2d at 1423-24. After reviewing Riddell’s documents the court is convinced that Riddell’s privilege assertions do not satisfy this criteria.”
Creating a very narrow construct around the third tenet of its analysis, the court wrote that “to be protected communications with a third-party agent must be made in confidence for the purpose of obtaining legal advice from the lawyer. E.I. Dupont deNemours & Co. v. MacDermid, Inc., C.A. No. 06-3383 (MLC), 2009 U.S. Dist. LEXIS 85436, 2009 WL 3048421, at *3 (D.N.J. Sept. 17, 2009). If the communication would have been made in the normal course of business even if the attorney did not need the information to give legal advice, the communication is not privileged. ISS Marine Services, Inc., 905 F. Supp. 2d at 128. The agent’s involvement must be necessary to the lawyer’s provision of legal advice. Id.”
In sum, the court found deficiencies in Riddell’s argument.
“To the extent a legal issue is touched upon (in the documents), it is evident the predominant purpose of the document was business in nature. Further, Riddell’s privilege claims are not supported by competent evidence. (General Counsel Brian P. Roche’s) general declaration does not satisfy Riddell’s burden of proof. To the extent the Court sustained a privilege assertion, it was because the privileged nature of the document was apparent from the face, content or context of the document.”
In re Riddell Concussion Reduction Litigation; D. N. J.; Civil No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457; 12/5/16
Attorneys of Record: (for Riddell) Joseph A. Boyle, Lead Attorney, Kelley Drye & Warren LLP, Parsippany, NJ. (plaintiffs) James E. Cecchi, Lead Attorney, Carella Byrne Cecchi Olstein Brody & Agnello, P.C., Roseland, NJ; Stephen A. Corr, Lead Attorney, Stark & Stark, Yardley, PA.