DISPUTE RESOLUTION: Business Litigation: Preserving the Attorney-Client Privilege Between Client, Attorney, and Independent Technical Consultant by Keri Smith

by King & Spalding

Energy companies may sometimes need to hire a non-expert independent technical consultant or engineer to perform sensitive environmental or related work, whether it be remediation/cleanup, conduction of environmental studies, or the development of a program to bring a client into compliance with applicable laws and regulations. When a company retains a consultant who is not a litigation expert, information related to legal strategy may sometimes be exchanged between a client, their attorney, and a consultant. In many such situations, the attorney and client will desire that certain information exchanges be privileged. Courts that have addressed the issue generally agree that documents associated with work done by technical consultants are not privileged unless it can be shown that the consultant was hired to provide legal advice. Unfortunately, making such a showing may be harder than it sounds.

Indeed, the Occupational Safety and Health Review Commission recently directed a refining company to produce for in camera review a consultant’s draft technical report for which OSHA issued a subpoena following an explosion and fire. Delek Refining, Ltd., 23 BNA OSHC 1567 (No. 09-0844, 2011). Because situations such as this occur with some frequency, this article explains the necessary showing to maintain attorney-client privilege protection for work by non-expert environmental and technical consultants, discusses relevant cases, and concludes with some practical tips for protecting work and communications.

The Second Circuit long ago, in a case involving the engagement of an accountant as consultant, held that the attorney-client privilege can attach to reports of third parties made at the request of an attorney or client where the purpose of the report was to put in usable form information obtained from a client. United States v. Kovel, 296 F.2d 918 (2d Cir. 1961). A party seeking to withhold documents from a consultant or other agent as privileged in such circumstances should be able to make a showing that the consultant was hired to assist counsel in providing legal advice.

However, in most cases involving a consultant’s provision of technical advice, courts seem unwilling to extend the attorney-client privilege. For example, in In re Grand Jury Matter, 147 F.R.D. 82 (E.D. Pa. 1992), an intervenor sought to quash a subpoena issued to a retained environmental consulting firm. The intervenor argued that their consultant had been retained to provide environmental legal advice related to the preparation of a waste management plan that would help to achieve regulatory compliance for the company’s waste disposal practices. The court reviewed the relevant documents in camera and rejected the application of the attorney-client privilege because the documents “were made solely in the course of the expert consultant’s preparation” of the waste management plan. In other words, these documents provided business advice, not legal advice. The court similarly rejected the work product doctrine because the documents did not reveal legal theories or opinions of a law firm.

Similarly, in U.S. Postal Service v. Phelps Dodge Refining Corp., 852 F. Supp. 156 (E.D.N.Y. 1994), an engineering firm was hired by the client to conduct environmental studies of the soil and oversee remedial work, and a consultant was hired to develop a supplemental remedial program. The documents exchanged between either consultant and client were not protected by the attorney-client privilege because neither consultant was employed to assist in the rendition of legal advice. The consultants’ functions were to collect information not obtainable directly from the client, rather than converting client information into a format that would better enable the client’s attorneys to render legal advice. The Western District of New York reached a similar conclusion with regard to the work of an environmental engineer in Occidental Chemical Corp. v. OHM Remediation Services Corp., 175 F.R.D. 431 (W.D.N.Y. 1997).

Following the line of reasoning fashioned in the above cases, courts are likely to focus on the purpose served by a consultant when determining the applicability of the attorney-client privilege to documents exchanged between consultants, clients, and attorneys. A party seeking to withhold documents from a consultant or other agent as privileged in these circumstances needs to convince a decision-maker that the consultant was hired to assist counsel in providing legal advice, and that the consultant was indispensible in facilitating attorney-client communications. See, e.g., Phelps Dodge, 852 F. Supp. at 160; Occidental, 175 F.R.D. at 435. A claim of privilege may be bolstered in situations where a consultant was retained directly by an attorney, a written and specific engagement letter is used to retain that consultant, and an attorney oversees all communications between the consultant and client. See Kovel, 206 F.2d at 922.

  Keri Smith
  +1 713 276 7310

  View Profile »


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© King & Spalding | Attorney Advertising

Written by:

King & Spalding

King & Spalding on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.