In an earlier post, "Maintaining Privileges," I examined whether discussions with a litigation communications consultant are protected by the attorney-client and work-product privileges, and provided links to two articles that outline the steps that should be taken in order to maximize privilege claims. The Sunday, May 20, 2011 Chicago Tribune contains an article written by Ameet Sachdev, the Tribune's legal reporter, describing the fallout when a judge rejected assertions of privilege and ordered the production of a plan written by a litigation communications consultant. It is a cautionary tale that is well worth reading. "PR executive sets off firestorm with proposal to discredit Madison Count court system."
The backstory is as follows: In 2004 a lawsuit was filed in Madison County, Illinois by the Holiday Shores Sanitary District against Syngenta Crop Protection Inc., the maker of the weedkiller atrazine. The suit alleges that atrazine runs off farm fields into drinking water supplies that water providers such as Holiday Shores must then remediate. Holiday Shores sought to lead a class action on behalf of all Illinois water providers.
Madison County has the reputation of being a favorable venue for plaintiff class actions. For years the courts in Madison County were on the American Tort Reform Association's annual list of "judicial hellholes."
In the summer of 2005, Syngenta contacted Jayne Thompson & Associates ("JTA"), a public relations firm owned by the wife of former Illinois Governor James Thompson, seeking communications counsel concerning the litigation. In October JTA provided a 13-page proposal to Syngenta on how the firm could support the company during the litigation, including, in the third part of the proposal, a plan for a negative media campaign against the Madison County courts. The proposal became the subject of a discovery dispute, and after reviewing it in chambers, Madison County Circuit Judge William Mudge ordered Syngenta to produce the JTA proposal to the plaintiffs, ruling the proposal was not privileged because it had "nothing to do with trial strategy or the preparation of this case for trial ... but much to do with fostering a negative public perception of our judicial system." Judge Mudge characterized the JTA proposal as follows:
In a nutshell a major element of the October 2005 JTA proposal outlines a plan to tie the defense of this action into a negative public relations campaign that castigates the Madison County judicial system as a 'judicial hellhole' and a source of 'jackpot justice,' and, in part, to undertake efforts to enhance the public's perception of Syngenta and the herbicide it manufactures at the expense of the Madison County judicial system. ... Although the document utilizes the term 'litigation support' on a couple of occasions, the proposal actually outlines an aggressive public relations strategy to build upon or create a hostile attitude toward the Madison County judicial system.
You can read Judge Mudge's decision here.