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HAUGH v. SCHRODER INVESTMENT MANAGEMENT NORTH AMERICA

August 25, 2003

SHARON HAUGH, PLAINTIFF, -V- SCHRODER INVESTMENT MANAGEMENT NORTH AMERICA INC., SCHRODERS PLC, SCHRODER INVESTMENTS (BERMUDA) LIMITED, SCHRODERS INC., AND MICHAEL DOBSON, DEFENDANTS


The opinion of the court was delivered by: Denise Cote, District Judge

ORDER AND OPINION

Defendants bring a motion to compel production of sixteen documents for which plaintiff claims protection under the attorney-client or work product privileges. Fifteen of the documents are communications sent to a public relations consultant engaged by plaintiff's former counsel; the sixteenth was sent by the consultant to the attorney. The asserted attorney-client privilege cannot extend to a public relations [ Page 2]

consultant on the facts of this case. Defendants are unable, however, to overcome work product protection for these documents. The motion is denied.

BACKGROUND

Until her employment was terminated on May 9, 2002, plaintiff Sharon Haugh ("Haugh") was Chairman of defendant Schroder Investment Management North America, Inc. ("SIMNA"). At the time her employment ended, Haugh was presented with a draft press release and a separation agreement, which she refused to sign. In the weeks following, articles discussing her departure from SIMNA appeared in industry publications. Believing that her former employers had engaged in unlawful age discrimination, Haugh filed a charge with the Equal Employment Opportunity Commission on June 26. After the EEOC issued a right to sue letter on September 23, Haugh commenced this action on October 7. In her complaint, Haugh alleges, inter alia, that defendants engaged in unlawful age discrimination in deciding to terminate her employment.

This motion concerns the involvement of Laura J. Murray ("Murray"), a public relations consultant who is also a lawyer licensed to practice in the state of Texas. Plaintiff's former counsel, Arkin Kaplan LLC ("Arkin"), retained Murray in September 2002, and sent Murray a formal retention letter on October 3, [ Page 3]

2002.*fn1 The retention letter states that Murray will "provide us advice to assist us in providing legal services to Ms. Haugh." The letter provided that Murray would look only to Haugh for payment. It included the following statement regarding confidentiality: "You further understand that our communications with you are confidential and privileged."

According to the affidavit of Stanley S. Arkin, he hired Murray to help defend Haugh from further attacks in the media which he anticipated would occur once she filed her lawsuit. Mr. Arkin expected that Murray's role in the case "would include media strategy as it impacted on our litigation and the consequent support and handling of media communications." Mr. Arkin's affidavit identifies, as tasks performed by Murray, assisting in the preparation of a press release issued at the time this action was filed, participating in strategy sessions with Arkin and Haugh, reviewing materials sent by Haugh "for impact on our litigation strategy," advising Arkin as to possible "public reactions," handling media communications and preparing a "detailed agenda" for a meeting held with Arkin and Haugh "on one occasion." Mr. Arkin further affirms that "Murray attended meetings at my office with Ms. Haugh and lawyers at my firm. The purpose of these meetings was to discuss Ms. Haugh's claims and to develop a litigation and media strategy . . ." Murray's affidavit largely echoes the statements made in the affidavit submitted by Mr. Arkin, although she notes that she "always [ Page 4]

considered the legal ramifications and potential adverse use of press releases." Murray affirms:

My responsibilities in connection with this matter included media strategy as it impacted on Ms. Haugh's litigation and the consequent support and handling of media communications. To this end, I participated in strategy sessions with lawyers from the Arkin Firm and Ms. Haugh and offered advice. For example, at the direction of lawyers at the Arkin Firm, I reviewed materials received from Ms. Haugh not only from the standpoint of public relations but, most importantly, for impact on litigation strategy. Further, I was to advise as to possible public reactions at various stages of the litigation and to handle media communications, including the issuance of a press release at the time the complaint was filed.
Haugh has not submitted an affidavit in conjunction with this motion. In the days immediately after the lawsuit was filed, press reports were published that appear to reflect the plaintiff's press release. Mr. Arkin is quoted in at least one of the reports.

None of the documents at issue on this motion, which were submitted for in camera review, originated with Arkin. With one exception, they were sent from plaintiff to Murray; many were sent simultaneously to Arkin. They appear to have been sent between the dates of September 23 and October 15, 2002.*fn2 Among the documents which were sent to Murray is a draft of a letter addressed to the CEO of defendant Schroders, Michael Dobson, apparently prepared months earlier by an attorney who represented Haugh before she retained Arkin. Several documents contain background information on Haugh's position and SIMNA and her [ Page 5]

industry generally, as well as Haugh's notes on the market data she is transmitting.*fn3 Included also are a marked-up (presumably by Haugh) press release relating to Haugh's departure from SIMNA, seven pages of handwritten notes presumably created by Haugh, and a handwritten note from Haugh to Murray and Arkin, although not explained in the privilege log or otherwise, that may describe Haugh's contacts with three potential witnesses. There are no requests for legal advice. The single document from Murray is a nine point list of topics for a discussion scheduled to occur on September 23. This document was apparently sent to plaintiff's counsel.

DISCUSSION

Attorney-Client ...


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