The Breaches of Madison County

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.

Dominic Strauss-Kahn PRs Up

Earlier this week, Reuters reported that Dominic Strauss-Kahn's legal team is consulting with Washington, DC firm TD International for public relations advice. "Strauss-Kahn's team consults ex-CIA officers' firm." This event has lead to some unfortunate, though not surprising, speculation concerning how Mr. Strauss-Kahn's lawyers are planning to defend him. "DSK public relations strategy kicks into high gear."

Lance Plays Hardball

Update: On February 3, 2012, the United States Attorney's office in Los Angeles announced that it had closed the investigation into Lance Armstrong's alleged use of performance enhancing substances. Justice Department Puts Brakes on Lance Armstrong Investigation. The US Attorney for Los Angeles, Andre Birotte Jr., took the highly unusual step of issuing a press release announcing the investigation had been closed, saying the release "was warranted by numerous reports about the investigation in media outlets around the world."

In September 2010 I blogged that Lance Armstrong had added legal and communications consultant Mark "master of disaster" Fabiani to his team in order to try to limit the damage to Mr. Armstrong's reputation caused by the federal government's performance enhancing substance investigation. "Lance Armstrong Hires Litigation Communications Consultant." In the wake of a recent "60 Minutes" story wherein Tyler Hamilton, a former teammate, alleged that Mr. Armstrong used banned substances, you can see evidence of Mr. Fabiani's aggressive style of litigation communications at a new website, "Facts 4 Lance." For example, Mr. Fabiani posted the following statement in regards to Mr. Hamilton:

Tyler Hamilton is a confessed liar in search of a book deal – and he managed to dupe 60 Minutes, the CBS Evening News, and new anchor Scott Pelley. Most people, though, will see this for exactly what it is: More washed-up cyclists talking trash for cash.

In addition, Mr. Armstrong has supplemented his legal team by retaining Robert Luskin of the Washington, DC firm Patton Boggs. Among others, Mr. Luskin is known for having represented Karl Rove during the Valerie Plame investigation. "Patton Boggs' Luskin Takes On Armstrong Accusers."

Finally, with the goal of adding some balance to this post, here's an interview with Mr. Hamilton's lawyer explaining why his client agreed to appear on "60 Minutes." "Q&A: Cyclist Tyler Hamilton's Lawyer On Why His Client Came Clean."