With the ever-increasing media world, public relations assistance to help manage public perceptions respecting companies, projects, or specific project events, like a casualty, are increasingly helpful and common. However, for your PR company to help effectively spin those perceptions, they need information. Companies seek to cloak such disclosures with the attorney-client or work product privileges, but there are conflicting views in the courts about that.
For example, the Southern District of New York has looked at similar privilege claims in two separate cases. In one, the PR company was hired for general PR assistance, but helped on the specific matter. In the other, the PR company was specifically retained for crisis management with respect to the underlying litigation. In the former case, the court held that disclosure of information to the PR company was a waiver of any privilege, but in the latter the court held that there was no waiver, relying in part upon the close working relationship with counsel.
As a result, there’s no clear cut answer. The closer the relationship is to one of assisting counsel than simply managing public perception, the more likely the communications are to be privileged, but it is important to recognize that because there is no hard and fast rule any communications to PR companies might be subject to later discovery. That is not to say PR companies should be avoided for that reason; to the contrary they are an increasingly important part of many casualty or crisis management situations; just recognize that, even if retained by counsel, the information exchanged with them is not sacrosanct.