ALFA International Product Liability Newsletter


Are Communications With A Jury Consultant Privileged Communications? By: Joseph R. Marconi The use of jury consultants has become increasingly prevalent in modern litigation practice. Attorneys routinely retain the services of consultants regarding trial strategy, jury selection, and witness preparation. Lawyers often assume that their communications with these consultants are privileged and non-discoverable. The law in this regard may not be so clear. In re: Cendant Corp. Sec. Litigation, 343 F.3d 658 (3rd Cir. 2003) squarely addressed the issues of the applicability and scope afforded to a privilege between a lawyer and a client’s communications with a jury consultant. In Cendant, a former Ernst & Young senior manager was deposed and asked questions regarding communications that took place between Ernst & Young’s counsel, the senior manager, and a retained trial consultant. Counsel for Ernst & Young objected to the questions on the basis of attorney-client privilege and the work product doctrine. The district court in Cendant held that no privilege (neither attorney-client nor work product) protected the communications with the jury consultant. However, the appellate court reversed that ruling and held that the work product doctrine protected the communications at issue. The Cendant court initially noted the two tiers of protection for work product: (1) “ordinary” work product which is discoverable upon a showing of need and hardship; and (2) “core” or “opinion” work product that encompasses the mental impressions and legal theories of an attorney and “is generally afforded near absolute protection from discovery.” The court then noted that Ernst & Young’s jury consultant was involved in open and frank discussion with counsel regarding the important facts of the case, as well as trial themes, theories, and strategies. The court further noted that the jury consultant was provided with documents prepared by counsel “reflecting counsel’s mental impressions, opinions, conclusions, and legal theories” and that the jury consultant’s notes reflected the same. Based upon these showings, the court ruled that the communications between Ernst & Young’s counsel and its jury consultant were “core” work product and therefore “only discoverable upon a showing of rare and exceptional circumstances.” Notably, the Cendant court did not address whether the communications at issue were protected by the attorney-client privilege. In fact, the court noted in rejecting the district court’s analysis that it was premised upon the court’s ruling in Blumenthal v. Drudge, 186 F.R.D. 236 (D.D.C. 1999) – a case that held communications between a client and a political consultant were not protected by the attorney-client privilege when no attorney was involved in the communication, but never addressed whether the communications were protected by the work product doctrine because it was never raised. A concurring opinion was filed in Cendant that the communications were also protected by the attorney-client privilege as well as the work product doctrine. The concurring opinion noted that communications involved Ernst & Young’s counsel, a representative of Ernst & Young, and the trial consultant. The disclosure to the trial consultant did not waive the privilege because the consultant was a third party who was assisting counsel “in the formulation of legal advice.” Although the court in Cendant ultimately held that the communications at issue with the jury consultant were protected from disclosure by the work product doctrine, attorneys should not blindly assume that all of their communications with jury and trial consultants will be privileged. The operative fact in Cendant was that the communications at issue disclosed counsel’s mental impressions and trial strategies. Not all communications with trial consultants will fall into this category and under the reasoning of Cendant will not be protected from disclosure.

Joseph R. Marconi Are Communications With A Jury Consultant Privileged Communications?
By: Joseph R. Marconi

The use of jury consultants has become increasingly prevalent in modern litigation practice. Attorneys routinely retain the services of consultants regarding trial strategy, jury selection, and witness preparation. Lawyers often assume that their communications with these consultants are privileged and non-discoverable. The law in this regard may not be so clear.

In re: Cendant Corp. Sec. Litigation, 343 F.3d 658 (3rd Cir. 2003) squarely addressed the issues of the applicability and scope afforded to a privilege between a lawyer and a client’s communications with a jury consultant. In Cendant, a former Ernst & Young senior manager was deposed and asked questions regarding communications that took place between Ernst & Young’s counsel, the senior manager, and a retained trial consultant. Counsel for Ernst & Young objected to the questions on the basis of attorney-client privilege and the work product doctrine.

The district court in Cendant held that no privilege (neither attorney-client nor work product) protected the communications with the jury consultant. However, the appellate court reversed that ruling and held that the work product doctrine protected the communications at issue.

The Cendant court initially noted the two tiers of protection for work product: (1) “ordinary” work product which is discoverable upon a showing of need and hardship; and (2) “core” or “opinion” work product that encompasses the mental impressions and legal theories of an attorney and “is generally afforded near absolute protection from discovery.” The court then noted that Ernst & Young’s jury consultant was involved in open and frank discussion with counsel regarding the important facts of the case, as well as trial themes, theories, and strategies. The court further noted that the jury consultant was provided with documents prepared by counsel “reflecting counsel’s mental impressions, opinions, conclusions, and legal theories” and that the jury consultant’s notes reflected the same.

Based upon these showings, the court ruled that the communications between Ernst & Young’s counsel and its jury consultant were “core” work product and therefore “only discoverable upon a showing of rare and exceptional circumstances.”

Notably, the Cendant court did not address whether the communications at issue were protected by the attorney-client privilege. In fact, the court noted in rejecting the district court’s analysis that it was premised upon the court’s ruling in Blumenthal v. Drudge, 186 F.R.D. 236 (D.D.C. 1999) – a case that held communications between a client and a political consultant were not protected by the attorney-client privilege when no attorney was involved in the communication, but never addressed whether the communications were protected by the work product doctrine because it was never raised.

A concurring opinion was filed in Cendant that the communications were also protected by the attorney-client privilege as well as the work product doctrine. The concurring opinion noted that communications involved Ernst & Young’s counsel, a representative of Ernst & Young, and the trial consultant. The disclosure to the trial consultant did not waive the privilege because the consultant was a third party who was assisting counsel “in the formulation of legal advice.”

Although the court in Cendant ultimately held that the communications at issue with the jury consultant were protected from disclosure by the work product doctrine, attorneys should not blindly assume that all of their communications with jury and trial consultants will be privileged. The operative fact in Cendant was that the communications at issue disclosed counsel’s mental impressions and trial strategies. Not all communications with trial consultants will fall into this category and under the reasoning of Cendant will not be protected from disclosure.